This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Reversed and remanded
Ramsey County District Court
File No. K7001551
Mike Hatch, Attorney General, 102 Capitol Office Building, Aurora Avenue, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
Gary R. Bryant-Wolf, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge.
GORDON W. SHUMAKER, Judge
Appellant Everardo Sosa challenges the district court’s denial of his motion to withdraw his guilty plea. We reverse and remand.
On May 9, 2000, a confidential reliable informant (CRI) contacted Rolland Martinez of the Ramsey County Sheriff’s Department and reported that an arranged drug sale was to occur at 5:00 p.m. on the corner of 35-E and Maryland Avenue in the City of Saint Paul. The CRI informed the officer that a man known as Everardo, the seller, would be arriving at the K-Mart parking lot in a reddish-maroon Chrysler, license plate number BVL-179. He further noted that the delivery would consist of approximately four ounces of cocaine.
Officers observed the suspect car at approximately 5:00 p.m. at the corner of 35-E and Maryland Avenue. A second individual entered the vehicle. Based on these observations, the officers detained the occupants and searched the car. They discovered a plastic baggie containing what tests later determined to be 108.09 grams of cocaine. The driver of the car, Everardo Sosa, admitted on the scene that the substance was cocaine, that the baggies contained approximately four ounces, and that he intended to sell the substance to his passenger.
The state charged Sosa with first-degree sale of cocaine in violation of Minn. Stat. § 152.021, subd. 1(1) (1998). He pleaded guilty as charged, with the understanding that the state and defense would jointly recommend a 24-month downward durational departure at the time of sentencing. During the plea hearing, Sosa acknowledged that (1) he had enough time to discuss the case with counsel; (2) counsel was informed of the facts of the case; (3) he could face immigration consequences as a result of his plea; (4) he understood that he would be giving up certain constitutional rights by pleading guilty; (5) he was not forced or threatened to plead guilty; (6) he was pleading guilty because he was guilty; and (7) he had no questions regarding the plea or his rights.
Before sentencing, Sosa moved, through newly appointed counsel, to withdraw his guilty plea. He alleged he was entitled to withdraw his guilty plea because his attorney was ineffective in failing to explore an entrapment defense. He claims that law-enforcement officers entrapped him through the use of the CRI, who was Sosa’s friend. Sosa alleges that the CRI asked Sosa to tell him of a source for buying drugs. Sosa declined the request. The CRI continued to make the request about 25 times over a five-day period. Sosa eventually relented and agreed to sell cocaine to the CRI, who was working with the sheriff’s department.
The district court denied Sosa’s motion and sentenced Sosa to the negotiated sentence of 74 months. Sosa challenges the denial of his motion to withdraw his plea, arguing that because entrapment was a viable defense to the admitted offense, the district court abused its discretion in denying his motion.
Sosa argues that he is entitled to withdraw his guilty plea to correct a manifest injustice because he was not afforded competent legal advice. See Minn. R. Crim. P. 15.05, subd. 1 (noting court shall allow a defendant to withdraw a plea of guilty if withdrawal is necessary to correct a manifest injustice); Saliterman v. State, 443 N.W.2d 841, 843 (Minn. App. 1989) (holding manifest injustice occurs if a defendant proves inadequate representation), review denied (Minn. Oct. 13, 1989).
Minnesota has adopted the federal standard for ineffective assistance of counsel, which requires a defendant to prove (1) that counsel’s representation “fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
“Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.” State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000); see also State v. Bjork, 610 N.W.2d 632, 633 n.3 (Minn. 2000) (stating “the preferred method for raising a claim of ineffective assistance of counsel is in a postconviction proceeding before direct appeal”). In Gustafson, the supreme court stated that a postconviction hearing provides the reviewing court with “additional facts to explain the attorney’s decisions,” which enables the court to properly consider whether the attorney’s performance was deficient. Gustafson, 610 N.W.2d at 321 (citation omitted). Because the record in Gustafson was “devoid of the information needed to explain the attorney’s decisions,” the court declined to reach the merits of the issue and preserved the appellant’s right to pursue a claim of ineffective assistance of counsel in a petition for postconviction relief. Id.
This case comes to us on direct appeal rather than on appeal from a postconviction proceeding. As such, the record is insufficient for us to review Sosa’s claim of ineffective assistance of counsel. In accordance with Gustafson, we conclude that we cannot properly address the matter without further development of the record and therefore decline to reach the merits of the issue. Therefore, we reverse the district court’s order denying Sosa’s motion to withdraw his plea, and we remand for further appropriate proceedings. We are not reversing Sosa’s conviction or his sentence, and we make no determination as to whether or not Sosa is entitled to withdraw his plea. This remand does not require the district court to take further action unless Sosa files a petition for postconviction relief.
Reversed and remanded.