This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Gregory Allen Demmings,



Filed June 5, 2001


Kalitowski, Judge


Hennepin County District Court

File No. 99080711


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Gregory Allen Demmings challenges the district court’s denial of his motion to withdraw his guilty plea prior to sentencing.  We affirm.


            The ultimate decision to allow a defendant to withdraw a guilty plea before sentencing is left to the sound discretion of the district court, “and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion.”  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  A court may permit a defendant to withdraw a plea before sentencing “if it is fair and just to do so,” taking into consideration whether granting the motion would prejudice the prosecution.  Minn. R. Crim. P. 15.05, subd. 2. The “fair and just” standard does not entail an absolute right to withdraw a guilty plea before sentencing because

[i]f a guilty plea can be withdrawn for any reason or without good reason at any time before sentence is imposed, then the process of accepting guilty pleas would simply be a means of continuing the trial to some indefinite date in the future when the defendant might see fit to come in and make a motion to withdraw his plea. 


Kim, 434 N.W.2d at 266 (quotation and citations omitted).  The defendant bears the burden of proving that the reason for withdrawing the plea is fair and just.  Id.

            Appellant contends that the district court abused its discretion in denying his motion to withdraw his plea, arguing that because his judgment was impaired by psychological problems when he pleaded guilty, that impairment provided a fair and just reason to allow for withdrawal.  But at the plea hearing, appellant’s psychological problems were specifically addressed.  When questioned about this issue, appellant stated:

I don’t think [my psychological issues] will change the outcome of what’s happening here.  I mean, I understand what’s going on.  I understand the proceedings.  * * * I don’t think [my depression and suicidal thoughts are] going to impair [my ability to make a decision with respect to this case]. 


Moreover, in a psychological evaluation conducted pursuant to appellant’s presentence investigation, the psychologist concluded that appellant has no

overt or delusional thought content * * *.  No psychotic symptoms such as thought disturbance, perceptual disturbances, or impaired reality contact were evidenced.  No gross deficits in cognitive functioning were evidenced.  Based on his verbal skills and vocabulary, the defendant’s level of intelligence is estimated to be at least average.


Finally, we note that the district court found the symptoms noted in the psychological evaluation had no effect on appellant’s guilty plea:

The Court is satisfied that [the guilty plea] was knowingly entered.  There was * * * a psychological evaluation done * * * [a]nd it does not indicate from any of the conclusions reached in that report nor in the information provided probation in the presentence investigation that there is any grounds for the withdrawal of the plea.  * * * [T]herefore [I’m] denying that motion.


The district court was in the best position to evaluate appellant’s psychological issues and determine whether appellant understood what was going on.  See State v. Lopez, 379 N.W.2d 633, 638 (Minn. App. 1986) (stating that the district court is in the best position to judge credibility when deciding if a defendant should be allowed to withdraw a guilty plea), review denied (Minn. Feb. 14, 1986).  We conclude that appellant has failed to meet his burden of showing that the district court abused its discretion in denying his motion to withdraw his guilty plea.