This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-1292

 

State of Minnesota,

Respondent,

 

vs.

 

Derrick Allen Wilson,

Appellant.

 

Filed March 5, 2002

Affirmed

Hanson, Judge

 

Ramsey County District Court

File Nos. K4-00-3046, K6-00-3047, and K2-00-3210

 

 

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for respondent)†

 

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

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102-1657 (for appellant)

 

††††††††††† Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Poritsky, Judge.*

U N P U B L I S H E D† O P I N I O N

HANSON, Judge

On appeal from three convictions of third-degree controlled substance crimes, appellant argues that the district court abused its discretion by denying his pre-sentencing motion to withdraw his guilty pleas because (1) one of the conditions of a favorable sentencing recommendation, that he assist the police with apprehending drug dealers, had been rendered impossible to perform by actions of the police, and (2) he received ineffective assistance of counsel.† We affirm.

FACTS

Appellant Derrick Allen Wilson was arrested three times in Ramsey County for selling crack cocaine in violation of Minn. Stat. ß 152.023, subd. 1(1) (1998).† Shortly before pleading guilty, Wilson met with his attorney,[1] Minneapolis Police Officer Garman, and St. Paul Police Officer Daly to discuss a possible plea agreement.† They agreed that Wilson would plead guilty to the three crimes and would help Officer Garman try to apprehend three drug offenders before the sentencing date.† In exchange, Officer Daly would consider recommending that Wilson receive a reduced sentence for the three crimes in Ramsey County and Officer Garman would consider recommending that a lesser criminal charge pending in Hennepin County be dropped.† All agreed that the police officers would have complete discretion to decide whether to make these recommendations.† Wilsonís attorney confirmed the agreement, in writing, the next day.

After questioning Wilson to make sure that he agreed with the terms of the agreement and that he felt he received adequate representation, the district court accepted his guilty pleas.† The court warned Wilson that, despite his agreement with the police, it would not give him any special consideration at sentencing if he violated the law in any way before the sentencing hearing.† Wilson was granted a release on his own recognizance.

About two months later, Wilson was arrested in Anoka County for theft.† A warrant was issued and Wilson was placed in jail because he had violated the terms of his release.

Wilson then moved to withdraw his guilty pleas, arguing that, when he agreed to help Officer Garman, he believed he would be allowed to participate in controlled buys in both Minneapolis and St. Paul, not just in Minneapolis.† He argued that, because one of his criminal contacts was unwilling to deal drugs in Minneapolis, he was effectively prevented from performing his obligations.† He also argued that he acted in good faith when he gave Officer Garman information pertaining to the sale of drugs in Minneapolis, and that Officer Garman failed to act on his tips.† The district court heard testimony and denied his motion to withdraw his pleas.†

At sentencing, Officer Garman did not recommend that Wilson receive a reduced sentence.[2]† The district court declined to reduce Wilsonís sentence because of his failure to perform his plea agreement obligations, and because of his Anoka County arrest.

Wilson filed this appeal, challenging only the denial of his motion to withdraw his guilty pleas.

D E C I S I O N

Once a defendant enters a guilty plea, the defendant has no absolute right to withdraw it.† Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).† The district court has the discretion to decide whether to allow a defendant to withdraw a guilty plea before sentencing.† Id.† Only in the rare case in which the district court abused its discretion will that decision be reversed.† Id.

The district court may allow

the defendant to withdraw a plea at any time before sentence if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendantís plea.†

 

Minn. R. Crim. P. 15.05, subd. 2.† This rule places the burden on the defendant to prove that it is fair and just for the court to allow withdrawal.† Id.

††††††††††† Wilson argues that the district court erred because it is fair and just to allow him to withdraw his guilty plea on two grounds:† (1) he was prevented from performing the conditions of a favorable sentencing recommendation because he was only asked to participate in controlled buys in Minneapolis, and Officer Garman did not act on his tips; and (2) he did not receive effective assistance of counsel.

Wilsonís Plea Obligations

††††††††††† Wilson pleaded guilty to three violations of Minn. Stat. ß 152.023, subd. 1(1) (1998) (third-degree violations of controlled-substance law).† The signed plea agreement incorporated the terms of the agreement between Wilson and Officers Garman and Daly.† Wilson argues that he believed he could fulfill his obligations by providing information regarding St. Paul drug sales because Officer Daly, a St. Paul officer, was present when the terms of the agreement were discussed.† The state argues that the agreement was very specific Ė Wilson was to work with Officer Garman, a Minneapolis officer, to apprehend three drug offenders.† The state further argues that the only information Wilson provided was an invalid license plate number and an invalid house address.† The state argues that Wilson did not act in good faith to meet his obligations.

††††††††††† The district court agreed with the state that the terms of the agreement were clear and that Wilson was to work with Officer Garman to apprehend three drug dealers.† It found that Wilson provided Officer Garman with no beneficial information and that Wilson lied to Officer Garman when he provided the invalid address and invalid license plate number.† The district court did not find credible Wilsonís argument that Officer Garman ignored legitimate information.† Further, the district court found that the state had complete discretion to determine whether to make a sentencing recommendation.

††††††††††† The district court was in the best position to evaluate Wilsonís and Officer Garmanís credibility as well as Wilsonís justifications for withdrawing the pleas.† See State v. Lopez, 379 N.W.2d 633, 638 (Minn. App. 1986), review denied (Minn. Feb. 14, 1986) (stating that district courts are in a better position to evaluate witnessesí credibility).† Because the district court found that Wilson knew what his obligations were under the plea agreement, Wilsonís plea met the requirements of a valid guilty plea.† See State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983) (stating that a guilty plea must be accurate, voluntary, and intelligent, and that the intelligence requirement ensures that the defendant understands the charges, the rights he waives by pleading guilty, and the consequences of his plea).† The district court did not err by finding that Wilson did not establish any grounds to withdraw his pleas.

††††††††††† Ineffective Assistance of Counsel

Wilson also argues that withdrawal of his pleas would be fair and just because he received ineffective assistance from his attorney.† Wilson did not raise this issue before the district court.† ďGenerally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal.Ē† State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000) (citation omitted).† Therefore, while we decline to reach the merits of this issue, Wilsonís right to pursue an ineffective assistance of counsel claim in a petition for postconviction relief is preserved.

††††††††††† Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ß 10.

[1] A different attorney represents Wilson on appeal.

[2] By the time Wilson was sentenced, Officer Daly had retired.† Wilson does not argue that Officer Garman lacked the authority he exercised at the time of sentencing to make or not make the recommendation in Officer Dalyís place.