may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
Gillian Martin, petitioner,
State of Minnesota,
File No. T200101606
Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Manuel Cervantes, St. Paul City Attorney, Stephen J. Christie, Assistant City Attorney, 15 West Kellogg Boulevard, Suite 500, St. Paul, MN 55102 (for respondent)
Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Around 1:00 a.m. on December 28, 2000, a St. Paul police officer stopped Martin, a 22-year-old college student, for speeding. While stopped, Martin admitted to drinking vodka and beer earlier that night. The officer also observed indicia of intoxication, and he arrested Martin for driving under the influence of alcohol. The officer took Martin to the police station and read her the implied consent advisory. Martin declined to call an attorney and agreed to take a breath test. The test showed an alcohol concentration of .13. While at the police station, the officer allowed Martin to use a telephone to call her parents and told her that she would be released at 6:00 a.m. Martin could not reach her parents.
Martin was transferred from the police station to the Ramsey County jail where she was placed in a cell. She was not allowed to use a telephone at the jail. At approximately 7:30 a.m., Martin was placed in a different cell with several women who were all wearing orange jump suits. Martin believed from the conversations among the other women that they had been arrested for various crimes. Martin became confused, upset, and frightened.
Martin was taken from the second jail cell to a courtroom where a woman who said that she was Martin’s attorney approached her. The woman was a certified student attorney, but she did not tell Martin that she was not a licensed attorney or that she was a student attorney. Martin conferred with the student attorney for about five minutes and never met with the student attorney’s supervisor.
Martin had been charged by citation with one count each of driving under the influence of alcohol in violation of Minn. Stat. § 169.121, subd. 1(a) (1998); driving with an alcohol concentration of .10 or more in violation of Minn. Stat. § 169.121, subd. 1(d); driving with an alcohol concentration of .10 or more as measured within two hours, in violation of Minn. Stat. § 169.121, subd. 1(e); and speeding in violation of Minn. Stat. § 169.14 (2000). The student attorney drafted a plea petition for Martin, and the petition was offered to the court in a plea hearing that occurred later the same day.
During the plea hearing, the prosecutor stated that if Martin admitted one of the driving-under-the-influence counts, he would dismiss the remaining counts. The student attorney responded that Martin would take advantage of pleading to driving with an alcohol concentration of .10 or more and having the remaining charges dropped, and Martin pleaded guilty. Responding to questions from the student attorney, Martin told the court that she had gone over the plea petition “line by line” with counsel; admitted that she drove with a .10 alcohol concentration; and acknowledged that she was giving up her rights to a trial by jury, to cross-examine and confront witnesses, to remain silent or testify on her own behalf, to subpoena and present witnesses, and to a pretrial hearing. The district court accepted Martin’s guilty plea, sentenced her to a stayed, 30-day jail term, and placed her on probation.
On January 5, 2001, Martin filed a motion to withdraw her plea pursuant to Minn. R. Crim. P. 15.05. On February 20, 2001, the motion was denied. Martin appealed to this court from the order denying her motion to withdraw her plea. She also moved to stay the appeal and requested a remand for postconviction proceedings in order to develop a factual record regarding the issue of ineffective assistance of counsel. The appeal was dismissed, and the case was remanded for postconviction proceedings.
1. A reviewing court will reverse the district court’s determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998). There is no absolute right to withdraw a guilty plea after it is entered. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). But if a defendant demonstrates that “withdrawal is necessary to correct a manifest injustice,” the district court shall permit withdrawal after sentencing. Minn. R. Crim. P. 15.05, subd. 1. “Manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent, and thus the plea may be withdrawn.” Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997) (citation omitted).
Martin argues that her plea was not accurate because she believed that the only way she would be released from jail was if she pleaded guilty, and the student attorney told her that if she pleaded guilty, she could be released. But even if Martin’s belief was not correct, she did not establish that her plea was not accurate.
The main purpose of the accuracy requirement is to protect the defendant from pleading guilty to a more serious offense than he could properly be convicted of at trial.
Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989) (citation omitted). There is no basis to conclude that Martin could not have properly been convicted of driving with an alcohol concentration of .10 or more had she gone to trial. Martin was stopped for speeding, and she does not claim that the stop was improper. After the implied consent advisory was read to her, Martin declined to speak with an attorney and agreed to take a breath test, which yielded a .13 result. Martin does not claim that either the implied consent advisory or the breath test was improperly administered. Based on the breath test result, had Martin chosen to go to trial, she could have been convicted of driving with an alcohol concentration of .10 or more.
Martin argues that her plea was not intelligent because the student attorney did not discuss with her alternatives other than pleading guilty and did not explain the collateral consequences of pleading guilty, such as a chemical-use assessment, suspension of her driver’s license, and other possible probation terms.
The purpose of the requirement that the plea be intelligent is to insure that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea.
State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).
For a guilty plea to be intelligent, the defendant must be aware of the direct consequences of pleading guilty. Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998). “[I]gnorance of a collateral consequence does not entitle a criminal defendant to withdraw a guilty plea.” Id. (citation omitted). “[D]irect consequences are those which flow definitely, immediately, and automatically from the guilty plea—the maximum sentence and any fine to be imposed.” Id. This court has determined that revocation of a defendant’s driver’s license is a collateral consequence of pleading guilty to an impaired-driving offense. State v. Washburn, 602 N.W.2d 244, 246 (Minn. App. 1999). Therefore, the fact that Martin was not informed of the possible revocation of her driver’s license did not make her plea unintelligent.
Martin provides no support for her claim that a chemical-use assessment and possible conditions of probation are direct consequences of her guilty plea.
The rule is that an assignment of error based on mere assertion and not supported by any argument or authorities is deemed waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.
State, by Burnquist v. Bollenbach, 241 Minn. 103, 124, 63 N.W.2d 278, 291 (1954) (citations omitted). It is not apparent on mere inspection that either of these consequences flows definitely, immediately, and automatically from a guilty plea.
Martin also argues that her plea was not intelligent because the student attorney did not explain that she had a right to read the police reports and the intoxilyzer-test record, or have an attorney review them, before deciding whether to plead guilty. But Martin does not show that a review of these documents was essential to her understanding the charges against her, the rights she waived by pleading guilty, or the consequences of her plea.
The district court did not abuse its discretion by not permitting Martin to withdraw her guilty plea.
2. In her petition for postconviction relief, Martin claimed that because she received ineffective assistance of counsel, her guilty plea was not accurate or intelligent.
A “postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.” State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (citations omitted). “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).
Postconviction courts and appellate courts must apply a two-part test when considering a claim of ineffective assistance of counsel. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). Under this test,
[t]he defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id.
Martin claims that the student attorney’s representation fell below an objective standard of reasonableness because the student attorney (1) did not go over any documents, such as the police report and the intoxilyzer-test record, with Martin; (2) did not inform Martin of the full ramifications of pleading guilty; (3) did not inform Martin about Minn. Stat. § 609.035 (1998 & Supp. 1999), which prohibits serialized prosecution and multiple punishments for offenses arising out of a single behavioral incident; (4) did not inform Martin about the availability of a petition for judicial review; (5) did not inform Martin that she was a student attorney; and (6) advised Martin to plead guilty without informing her about the option of pleading not guilty.
The postconviction court concluded that Martin’s
plea was accurate because it was supported by an adequate factual basis and she did not plead guilty to a charge more serious than she could have been convicted of had she gone to trial.
The postconviction court concluded that Martin’s
plea was intelligent because [Martin] understood the charges, her rights under the law, and the direct consequences of pleading guilty to the offense of Driving While Having a Blood Alcohol Content of Over .10. In addition, [Martin] has made no showing that her attorney failed to advise her of the direct consequences of such a plea.
As we have already discussed, even if the student attorney failed to advise Martin about the things that Martin contends she was not advised about, the failure to do so does not demonstrate that Martin did not have the information she needed to make an accurate and intelligent plea. Therefore, the postconviction court did not abuse its discretion when it concluded that Martin’s plea was accurate and intelligent and denied her motion for postconviction relief.
On appeal, Martin argues that if she had received effective assistance of counsel, she would not have pleaded guilty and would have insisted on going to trial. In the context of guilty pleas, the second part, or “prejudice” requirement of the ineffective-assistance-of-counsel test,
focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.
Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).
But Martin did not argue in the postconviction court that she would not have pleaded guilty if she had not received ineffective assistance of counsel; she only argued that because she received ineffective assistance, her plea was not accurate and intelligent. “This court generally will not decide issues which were not raised before the district court.” Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Whether Martin would not have pleaded guilty if she had not received the advice that she received is a factual determination. But because this issue was not raised in the postconviction court, the court made no factual determination whether Martin would not have pleaded guilty but for counsel’s errors. Therefore, we decline to address this issue on appeal.