This opinion will be unpublished and

may not be cited except as provided by

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







Gregory Donald Clark,






State of Minnesota,



Filed October 30, 2001

Klaphake, Judge


Hennepin County District Court

File No. 98084572


John M. Stuart, State Public Defender, Bradford W. Colbert, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)


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


Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 S. Sixth Street, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            On June 25, 1998, Gregory Donald Clark committed a robbery at Amore Pizza in Minneapolis.  Approximately two weeks later, on July 8, 1998, he robbed a Video Update store.  Clark was tried first for the July offense and found guilty of aggravated robbery.  Before sentencing, Clark agreed to plead guilty to one count of aggravated robbery for the June offense.  Clark was thereafter sentenced to 108 months on the June offense and a consecutive 48-month sentence on the July offense.  On appeal from the conviction arising out of the July offense, this court found the district court had committed prejudicial error in the admission of evidence and reversed and remanded for a new trial.  State v. Clark, C0-99-1369 (Minn. App. July 18, 2000).  Clark thereafter brought this motion to withdraw his plea on the June offense.

            On appeal from the district court’s denial of his motion, Clark claims that his plea was not accurate, voluntary, or intelligent because (1) his attorney modified the plea agreement without his consent or knowledge; and (2) his plea was based, in part, on another conviction that was later reversed by this court.  Because the evidence demonstrates that Clark fully understood the charges, the rights he was waiving, and the consequences of his guilty plea, and because we find no manifest injustice here, we affirm.


            One who has entered a guilty plea does not have the absolute right to withdraw it.  State v. Knight, 292 Minn. 419, 423, 192 N.W.2d 829, 832 (1971).  The decision on whether withdrawal is necessary is left to judicial discretion.  Saliterman v. State, 443 N.W.2d 841, 843 (Minn. App. 1989) (citing Minn. R. Crim. P. 15 cmt. (1988)), review denied (Minn. Oct. 13, 1989).

            A defendant must be allowed to withdraw a plea after sentencing if withdrawal is necessary to correct a manifest injustice.  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  A plea is manifestly unjust if it was not accurate, voluntary, or intelligent when made.  Id.


            Clark first claims that his attorney changed his plea without his knowledge or consent.  The transcript of the plea hearing at which Clark pleaded guilty to the June offense, however, establishes that Clark was present and fully cognizant of the parties’ discussions.

            At the hearing, Clark agreed to plead guilty to one count of aggravated robbery for the June offense.  In exchange, the state agreed to dismiss two additional counts of second-degree assault arising from the incident and to not seek application of the career offender statute.  The parties initially anticipated that the court would impose a 48-month sentence for the June offense and a 108-month sentence for the July offense, which are presumptive sentences for severity level VII offenses committed by a defendant with a criminal history score of nine, and sentenced consecutively, requiring use of a criminal history score of zero on the second offense.

            During the hearing, however, the probation officer clarified that the 108-month sentence should be imposed for the June offense, presumably to comport with the sentencing guidelines, which provide that when consecutive sentences are imposed, the court should sentence in the order in which the offenses occurred.  See Minn. Sentencing Guidelines II.F.02.  The state took no position on this suggested change.  Clark’s attorney stated that “[i]t doesn’t matter to us as long as the total sentence [does] not exceed 156 months.”  When the court asked Clark if he had anything to say before sentencing, Clark responded “[n]o.”  The court then sentenced him to 108 months for the June offense and a consecutive 48-month sentence for the July offense.

            This exchange demonstrates that the parties contemplated, and that Clark understood, that the total sentence was not to exceed 156 months but that the individual sentences could vary.  As the district court noted in denying Clark’s motion to withdraw, the sentence Clark received “is consistent with the negotiation and consistent with the contemplation of the parties at the time of sentencing.”  Clark cannot now argue that his plea was made without knowledge or understanding; the evidence shows that he understood the charges, the rights being waived, and the consequences of the guilty plea.  See Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).[1]


            Clark next argues that he is entitled to withdraw his plea because it was based, in part, on a conviction that was later reversed.  See State v. Clark, C0-99-1369 (Minn. App. July 18, 2000).  Clark essentially argues that had he known that this court would reverse his first conviction on the July offense, he would not have entered into a guilty plea, which assumed the validity of that conviction and sentence.  Clark does not explain, however, exactly how this would have affected his decision to plead guilty to the June offense.[2]

            In addition, Clark was not acquitted on retrial for the July offense.  Rather, he waived his right to trial, pleaded guilty, and was sentenced to one year and one day, to be served consecutive to his 108-month sentence for the June offense.

            Indeed, withdrawal of the guilty plea for the June offense may not be in Clark’s best interests.  A defendant must realize that if he

were to obtain permission to withdraw his guilty pleas, he would face trial on the reinstated original charges and, if convicted, would face the possibility of consecutive sentences and, therefore, of more time in prison than he now faces. 


Brown, 449 N.W.2d at 183 n.1.  That might be the case here:  in exchange for his guilty plea to aggravated robbery for the June offense, the state dismissed two assault charges and agreed not to seek application of the career offender statute.  In addition, the original plea agreement contemplated a total sentence of 156 months, which is greater than the total sentence Clark now faces.  Thus, Clark’s current sentence appears more lenient than one he might receive were this court to allow withdrawal of his guilty plea.[3]  We find no manifest injustice under these circumstances.

            The district court’s denial of Clark’s motion to withdraw his plea is affirmed.






[1] As support for his position that he is entitled to withdraw his plea because his attorney renegotiated its terms without his knowledge or consent, Clark cites State v. Woods, 496 N.W.2d 144 (Wis. Ct. App. 1992).  The court in Woods concluded that the defendant had demonstrated “manifest injustice” because he pleaded guilty based on inaccurate information regarding his potential sentence and because his attorney renegotiated his plea agreement without informing him or obtaining his consent.  Id. at 149.  Here, however, Clark was present during all discussions, particularly when the probation officer clarified that the sentence on the first-occurring robbery should be 108 months and that the other sentence should be 48 months.


[2] Clark still faced, for example, the possible use of the July offense as Spreigl evidence for the June offense.  His guilty plea was not conditioned on the validity of the prior conviction merely because the plea agreement contemplated consecutive sentences.


[3] As support for his position that his plea was “inextricably intertwined” with another conviction that was later reversed, Clark cites People v. Schaaff, 430 N.Y.S.2d 3, 4 (N.Y. 1980).  In that case, however, the court allowed vacation of two guilty pleas because they were entered after the court promised that the sentences would be concurrent to a separate life sentence the defendant was supposed to receive on a third conviction, which was later reversed.  Thus, in Schaaff, a plea was entered on the understanding that it would not result in any additional prison time.  Here, the plea agreement called for consecutive sentencing.