This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-01-621

 

 

State of Minnesota,

Respondent,

 

vs.

 

Charles Ricardo Madison,

Appellant.

 

Filed December 26, 2001

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. 00094499  

 

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

Timothy J. Hickman, Barry V. Voss, Voss & Hickman, P.A., Suite 2355, 527 Marquette Ave., Minneapolis, MN 55402 (for appellant)

 

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Hanson, Judge. 

U N P U B L I S H E D   O P I N I O N

LANSING, Judge 

            Charles Madison appeals the district court's denial of his motion to withdraw his guilty plea to second-degree intentional murder.  He also contends the district court erred by imposing sentence without a presentence investigation report.  Because Madison failed to show any deficiency in his counsel’s performance in assisting him with the entry of his plea, or that he was prejudiced when his failure to cooperate prevented the completion of a presentence investigation report, we affirm.

F A C T S

            A grand jury indicted Charles Madison for first-degree and second-degree murder of Gerrell Wright.  Wright was shot in the kitchen of a relative's house during a Labor Day celebration.  At a pretrial conference, Madison's attorney negotiated a plea agreement with the state.  Under the agreement, Madison entered a plea to an amended indictment of second-degree intentional murder, and the state requested a sentence of 299 months. 

The plea negotiations involved Madison's attorney and an additional attorney from the Legal Rights Center who came to the pretrial hearing to assist in discussing the evidence and the proposed plea with Madison.  Both attorneys and an investigator, also from the Legal Rights Center, conferred with Madison about the state's evidence, including evidence released on the day of the pretrial that had previously been under seal to protect the safety of two key witnesses.  Following these discussions, which extended from the morning through the early afternoon, Madison entered a guilty plea to the reduced charge.

The district court and Madison's attorney questioned Madison thoroughly about his knowledge of the rights he was waiving, the voluntariness of his plea, and his understanding of the proceedings.  Madison stated that he understood all the evidence that would be presented against him, understood the length of his sentence, had read and signed a two-page petition to enter a guilty plea, and understood he was waiving his right to a trial by jury.  His attorney questioned him specifically about their discussion on the strengths and weaknesses of the evidence, the discovery documents, and the "severity" of the evidence previously under seal.  Madison stated that these issues had all been discussed and that he was satisfied with the representation by his attorney.  Madison stated under oath that he intentionally shot and killed Gerrell Wright in the kitchen of the Minneapolis home during a party.  The district court continued the case one month for sentencing.

            The week before the sentencing hearing, Madison filed a notice to substitute a new attorney and a motion to withdraw his plea.  Madison also refused to cooperate with a probation officer in the preparation of the presentence investigation report.

At the sentencing hearing, the district court permitted substitution of counsel and conducted a hearing to determine whether to grant Madison's motion to withdraw his guilty plea.  The investigator from the Legal Rights Center testified that he had talked to Madison shortly after Madison asked to withdraw his plea.  The investigator testified that Madison expressed no dissatisfaction with the representation he received, but had changed his mind about whether he could "beat" the charge.  He told the investigator that other friends had beat cases like this and, with a private attorney, he believed he would also prevail.

Madison testified, consistent with his affidavit in support of his motion, that he was dissatisfied with his previous attorney.  He stated that his attorney failed to interview witnesses who could provide him with an alibi, failed to give him a full accounting of the evidence against him, and did not fully explain to him the contents of the discovery documents despite Madison's inability to read.  On questioning by the state and the court, Madison acknowledged that his statements of dissatisfaction directly conflicted with his answers to a series of questions at this plea hearing, including that his 11th-grade education had provided him with the ability to read and write.  He testified that some of his statements at the plea hearing were not truthful.

On rebuttal, the investigator testified that Madison received all the available discovery evidence, that in meetings with Madison, the investigator observed the discovery documents in Madison's possession and saw that the documents contained writing in the margins and that parts of the text were underlined.  The investigator further stated that in the course of the meetings, Madison had read parts of the discovery documents aloud, had referred to his notes on the documents, had referred to information from the reports in his discussion of trial strategy, and had repeatedly drawn the investigator's attention to certain parts of the reports.

            The district court found that Madison had been effectively represented by his previous counsel and that his plea was knowing, voluntary, and intelligent.  The court specifically stated that Madison's assertion of his inability to read and write was not credible.  The court also found that withdrawal of the plea would prejudice the state in the timing of Madison's trial and its effect on related cases.  The district court sentenced Madison consistent to the plea agreement.

            On appeal, Madison argues that the district court abused its discretion by accepting the plea and concluding that Madison had received effective assistance of counsel and also abused its discretion by sentencing Madison without the benefit of a presentence investigation report.

D E C I S I O N

Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  The ultimate decision [to allow a defendant to withdraw a guilty plea before sentencing] is left to the sound discretion of the trial 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.”  State v. Kaiser, 469 N.W.2d 316, 320 (Minn. 1991)(quoting Kim, 434 N.W.2d at 266).  The court may allow a defendant to withdraw his plea at any time before he is sentenced if withdrawal is fair and just.  Minn. R. Crim. P. 15.05, subd. 2.  The burden is on the defendant to prove that a fair and just reason for plea withdrawal exists.  Kim, 434 N.W.2d at 266.  In determining whether a defendant’s reason to withdraw a guilty plea is fair and just, the district court should consider both the reasons defendant advances in support of the motion and the prejudice that granting the motion would cause the prosecution.  Kim, 434 N.W.2d 266-67; Minn. R. Crim. P. 15.05, subd. 2. 

I

Madison argues that withdrawal of his plea would be fair and just because he received ineffective assistance from his attorney.  Specifically, Madison contends that his attorney’s representation was deficient because he neglected to go over the evidence with him, he did not follow up on or question alibi witnesses, and he pressured Madison into pleading guilty.

To demonstrate ineffective assistance of counsel, Madison must establish both that his counsel’s performance was deficient and that this deficient performance prejudiced his defense.  State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064 (1984)).  If Madison can satisfy both requirements of this test, then his plea would be considered involuntary, and it would be fair and just to allow its withdrawal.  See State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983)(noting that a valid guilty plea must be accurate, voluntary, and intelligent) (emphasis added); see also Ecker, 524 N.W.2d at 718 (“[T]he voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.”) (quotation omitted).

The district court rejected Madison's claim that his attorney was ineffective by neglecting to provide Madison with discovery documents or to adequately review them.  The district court's findings are supported by the record.  The investigator testified that Madison was provided with all discovery materials available to his defense team.  At his plea hearing, Madison stated on the record that he had gone over and understood all the evidence against him.  It was only in his affidavit supporting his motion to withdraw his plea, and at the hearing on the withdrawal motion, that Madison claimed that his attorney did not present him with all the evidence or take the time to read it to him.  Madison was able to point to no discovery material that he had not been provided, and the district court specifically found that Madison's testimony that he could not read was not credible.  The district court did not abuse its discretion in rejecting the failure to provide or discuss discovery materials as a basis for Madison's withdrawal of his plea.

Madison's second contention is that the assistance of his attorney was ineffective because he failed to contact Madison’s alibi witnesses.  In his affidavit, Madison made no affirmative representations about the existence of any alibi witnesses.  At the hearing on the plea withdrawal, he made no reference to any failure to call alibi witnesses.  The absence of a list, or statement of who the alibi witnesses might be, defeats this claim of deficient representation.  See Gates v. State, 398 N.W.2d 558, 563 (Minn. 1987) (defining defendant's affirmative duty to show that witnesses would have been found and that their testimony would have an actual effect on the outcome of the proceeding); Ecker, 524 N.W.2d at 718 (applying Gates’ reasoning to plea withdrawals based on claims of ineffective assistance of counsel). 

            Madison’s third argument on ineffective assistance of counsel is that his attorney pressured him into accepting the plea agreement.  Madison claims he was pressured because his attorney did not adequately review the evidence with him during their meeting, but instead only told him that they had roughly a 5% chance of winning the case.  Madison acknowledged in questioning that the court had specifically provided a recess for Madison's attorney to explain in detail the evidence against him, that the court released evidence under seal to present to Madison in the discussion, and that at the plea hearing Madison stated that he had discussed the evidence with his attorneys.  Madison was able to point to no evidence that had not been discussed.  The district court did not abuse its discretion by finding that Madison’s attorney did not pressure him into his plea.  See Ecker, 524 N.W.2d at 719 (stating that when a record of a guilty plea shows that defendant has made a decision to plead on his own, the district court can reject later claims of coercion by the defendant).

The evidence amply supports the district court's decision.  Madison failed to demonstrate that his counsel’s performance was deficient in any aspect or that his plea was not knowing, intelligent, or voluntary.  Thus, he has failed to show that it would be fair and just to allow him to withdraw his guilty plea.

II

Madison also argues that it was inappropriate for the district court to sentence him without the presentence investigation report.  Minnesota statutes provide that before sentencing a defendant convicted of a felony, "the court shall * * * cause a presentence investigation and written report to be made to the court."  Minn. Stat. § 609.115, subd. 1(a) (2000).  Even though Madison correctly indicates that the district court did not have a complete presentence investigation report, his argument fails for two reasons.

First, at the time of sentencing, the district court possessed most of the information required by Minn. Stat. § 609.115 to be included in the presentence investigation report.  The probation department had presented to the court the victim-impact statement and the sentencing-guidelines calculations.  Minn. Stat. § 609.115, subd. 1(a), (e).  The only information unavailable to the district court at the time of sentencing was Madison's background—which was unavailable because of Madison's failure to cooperate.  To allow a defendant to thwart sentencing by failing to cooperate with a presentence investigation would defeat the policies underlying the sentencing procedure.

Second, Madison suffered no prejudice as a result of the court's not having a presentence investigation report at the sentencing hearing.  See State v. Genereux, 272 N.W.2d 33, 34 (Minn. 1978) (noting that defendant was not prejudiced by the district court's failure to wait to sentence defendant until after receiving the presentence investigation report).  Madison was sentenced to 299 months.  According to the Minnesota Sentencing Guidelines, this is the fewest number of months to which a defendant may be sentenced for second-degree murder without a sentencing departure.  Minn. Sent. Guidelines IV.  Madison did not indicate any intent to seek a downward departure or allude to any basis for such departure.  Thus, Madison suffered no prejudice from the absence of the report.  Consequently, the district court did not abuse its discretion by imposing sentence without a presentence investigation report.

Affirmed.