This opinion will be unpublished and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-01-988

 

State of Minnesota,

Respondent,

 

vs.

 

James Alexander Gilligan,

Appellant.

 

Filed March 5, 2002

Affirmed

Willis, Judge

 

Winona County District Court

File No. K899962

 

 

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

 

Charles E. MacLean, Winona County Attorney, Kevin P. O’Laughlin, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN  55987 (for respondent)

 

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

 

            Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

This appeal is from a postconviction order denying appellant’s motion to withdraw his plea of guilty to second-degree controlled-substance crime.  Because we conclude that appellant’s plea was voluntarily and intelligently entered and that he was not denied the effective assistance of counsel in entering it, we affirm.

FACTS

            Appellant James Gilligan was charged in a delinquency petition with having committed third-degree controlled-substance crime and conspiracy to commit third-degree controlled-substance crime.  The petition alleged that Gilligan conspired to sell crack cocaine on April 15, 1999, and on the same day completed a sale of cocaine.  A second petition alleged that Gilligan committed third-degree controlled-substance offense on May 1, 1999, by possessing cocaine with intent to sell.  The state made a written offer to Gilligan’s public defender under which Gilligan would waive a challenge to adult certification and plead guilty to an adult criminal complaint charging him with second-degree controlled-substance offense, in exchange for the state’s agreement to recommend a downward dispositional departure in the form of a stay of the imposition of sentence and a 180-day cap on probationary jail time. 

            After Gilligan appeared on the criminal complaint, he submitted a petition to plead guilty reciting the same basic terms as the state’s written plea offer:  a guilty plea to second-degree controlled-substance crime, with the state to recommend a stay of the imposition of sentence and a 180-day cap on probationary jail time.  All counts in the delinquency petitions were to be dismissed. 

            At the plea hearing, Gilligan admitted that he had made a sale of cocaine in the amount of .7 gram and that he was later found in possession of 2.2 grams, under circumstances indicating an intent to sell.  Gilligan acknowledged that “in order to qualify * * * for a second degree” controlled-substance-offense charge, the state would have to prove a total of 3 grams, or .1 gram more than was involved in the conduct outlined in the petition.  Gilligan’s attorney did not ask him to specify what evidence of the additional .1 gram there might be.  But the prosecutor elicited testimony from Gilligan that on April 3, 1999, he had delivered one rock of crack cocaine, which Gilligan acknowledged was probably .1 gram, and on April 5, 1999, he had delivered a total of four rocks of cocaine to two different locations. 

            Gilligan acknowledged at the hearing that the presumptive sentence for second-degree controlled-substance offense was an executed prison sentence.  He stated that he understood that the agreement called only for a recommendation of a stayed sentence and that the court could “very well” send him to prison.  At the sentencing hearing, the court sentenced Gilligan to a stay of imposition and 180 days of probationary jail time.

            Following the revocation of his probation, Gilligan moved to withdraw his guilty plea.  Gilligan argued that his plea was not knowingly and accurately entered, due to his attorney’s inadequate advice, and that he was denied the effective assistance of counsel.  Following a hearing, which included testimony by the attorney who represented Gilligan when he pleaded guilty, the district court denied the motion.  This appeal followed.

D E C I S I O N

            “We review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001); Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997).  A postconviction court’s decision will not be disturbed absent an abuse of discretion.  Dukes, 621 N.W.2d at 251.

I.

            Gilligan argues that he was deprived of his right to the effective assistance of counsel when he entered his guilty plea because his attorney failed to tell him that the third-degree controlled-substance crimes charged against him carried presumptively stayed sentences.  He also argues that his attorney should not have induced him to plead guilty to second-degree controlled-substance crime, a charge greater than that alleged in the delinquency petition and one requiring proof of an additional quantity of cocaine that the state would have difficulty presenting.

            A defendant claiming ineffective assistance of counsel must show that his attorney’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.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  A defendant claiming ineffective assistance in the entry of a guilty plea must show a reasonable probability that, but for his counsel’s errors, he would not have pleaded guilty.  Berg v. State, 557 N.W.2d 593, 596 (Minn. App. 1996).

            Gilligan’s first claim is that his attorney should have informed him that third-degree controlled-substance offenses, which were the charges in the delinquency petitions, carried a presumptively stayed adult sentence.  But, as the state points out, with concurrent sentencing and calculation of his criminal-history score using the Hernandez method, Gilligan’s presumptive sentence as an adult, with a criminal-history score of three, would have been an executed sentence of 39 months.  Minn. Sentencing Guidelines IV-V.  Therefore, Gilligan’s attorney did not provide deficient advice regarding the presumptive sentence Gilligan faced. 

            Gilligan’s second claim is that his attorney induced him to accept an “improvident” plea bargain because Gilligan pleaded guilty to an offense more serious than that charged in the petition and one that required an additional fact that the state might not have been able to prove.

            As the state notes, there is no authority firmly establishing a right to be protected from “improvident” plea bargaining.  See State v. Johnson, 279 Minn. 209, 214, 156 N.W.2d 218, 222 (1968) (acknowledging the defendant’s claim to such a right but declining to fully address the “questions of far-reaching potential” raised by the claim); Barnes v. State, 489 N.W.2d 273, 276-77 (Minn. App. 1992) (quoting Johnson, but relying on public-policy considerations in holding that plea entered after jury had retired to deliberate was “involuntary, improvident, and lacking the intelligent acquiescence of” the defendant), review denied (Minn. Nov. 3, 1992).  Nevertheless, if the plea bargain was “improvident,” it would bolster Gilligan’s claim that his attorney gave him inadequate advice that induced him to plead guilty.

Gilligan’s attorney testified that the prosecutor told him that she was going to amend the delinquency petition to charge the greater offense of second-degree controlled-substance crime.  Gilligan testified that his attorney informed him of this impending amendment.  Therefore, Gilligan pleaded guilty to an offense he fully expected to be charged with in an amended petition.

We also reject Gilligan’s argument that the state would have had difficulty proving second-degree controlled-substance crime.  The state’s case, which was based on telephone wiretaps of Gilligan’s dealer and visual surveillance of Gilligan’s deliveries, amply established that Gilligan made deliveries of four “rocks” of crack cocaine on April 5, 1999, in addition to the six rocks police obtained from Gilligan in a controlled buy and the 17 rocks seized from his home.  Gilligan argues that the weight of a rock of crack cocaine was not established and could have been less than .05 gram.  But the six rocks obtained in the controlled buy weighed .7 gram, and the 17 rocks seized from Gilligan’s home weighed 2.2 grams.  Thus, the rocks actually being handled by Gilligan, and provided by his dealer, averaged significantly more than .1 gram.  The state would not have had difficulty convincing a jury that the four rocks delivered by Gilligan on April 5 together weighed more than the .1 gram of additional cocaine required to prove the second-degree offense.

We conclude that Gilligan’s attorney did not provide ineffective assistance and did not induce Gilligan to accept an “improvident” plea bargain in advising him on the plea of guilty to second-degree controlled-substance crime.

II.

Gilligan also argues that he must be allowed to withdraw his guilty plea to avoid  manifest injustice because the plea was not intelligently and voluntarily made.  This court will reverse a district court’s determination of whether to allow withdrawal of a guilty plea only if the district court has abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).

            A guilty plea, to be valid, must be accurate, intelligent, and voluntary.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  If the plea lacks any of these essential attributes, a manifest injustice has occurred that requires that the defendant be allowed to withdraw the plea.  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  The state argues that Gilligan’s 17-month delay in seeking to withdraw his plea makes his motion untimely.  But, although significant delay may bar consideration of some grounds for withdrawal of the plea, in general, delay is only one factor to consider in determining whether to allow withdrawal.  See State v. Vieburg, 404 N.W.2d 312, 314 (Minn. App. 1987) (holding that delay was relevant factor but defendant who moved to withdraw as soon as he obtained counsel was not barred); cf. State v. Weisberg, 473 N.W.2d 381, 383 (Minn. App. 1991) (holding that delay in moving to withdraw plea and failure to challenge complaint until after state moved for probation revocation barred claim that plea was invalid due to lack of specificity in complaint), review denied (Minn. Oct. 11, 1991); State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986) (holding that 11-month delay made motion untimely but addressing merits of the motion), review denied (Minn. Feb. 14, 1986).

            Gilligan argues that his plea was not voluntary and intelligent because he was not given enough information to assess it intelligently but rather assumed that it was a “good deal,” when in fact it exposed him to a more severe sentence than he would have received for the crimes charged in the juvenile petitions.  As discussed above, the postconviction court had ample evidence from which to conclude that Gilligan was given enough information regarding the merits of the plea bargain. 

The record establishes that, at the time Gilligan pleaded guilty, the state had filed a motion for adult certification.  Moreover, Gilligan testified that he wanted to “get out” of the juvenile court system and therefore welcomed adult certification.  The record also shows that the state was planning to amend the petition to charge the greater offense of second-degree controlled-substance crime, that Gilligan was apprised of this, and that the state had evidence to prove the greater offense.  Although Gilligan argues that the court would have imposed a stayed sentence even without the guilty plea, nothing in the record supports this claim.

The presentence investigation report described 13 juvenile offenses on Gilligan’s record and recommended that he receive an executed prison sentence.  The court at sentencing, in staying imposition of Gilligan’s sentence despite this recommendation, indicated that it was relying on the recommendations of counsel, including the prosecutor, whose recommendation was the result of the plea agreement.  Thus, the record shows that Gilligan received a substantial benefit from the plea bargain, which was not so “improvident” as to cast doubt on the voluntariness or intelligence of the guilty plea. 

Affirmed.