This opinion will be unpublished and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

C0-01-1664

 

State of Minnesota,

Respondent,

 

vs.

 

Juan Ricardo Martinez,

Appellant.

 

Filed May 21, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Clay County District Court

File No. K394503

 

 

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, No. 500, St. Paul, MN 55103; and

 

Lisa N. Borgen, Clay County Attorney, Courthouse, 807 11th Street North, Moorhead, MN 56561 (for respondent)

 

Mark Nyvold, 46 East Fourth Street, 1030 Minnesota Building, St. Paul, MN 55101 (for appellant)

 

 

            Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Willis, Judge.

 

 

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

            Appellant contends that the district court abused its discretion when it denied his motion to withdraw his plea of guilty.  He argues that the plea had no factual basis, was inaccurate and involuntary, and was not entered intelligently because he did not understand English and because his attorney’s assistance was ineffective.  We find no abuse of discretion, and we affirm.

FACTS

 

During an altercation in 1994, appellant Juan Ricardo Martinez stabbed a man to death.  The state charged him with intentional second-degree murder and felony second-degree murder.  In exchange for the dismissal of the intentional-murder charge, Martinez pleaded guilty to felony murder.

Martinez filed a petition for postconviction relief on May 7, 2001, arguing that he is entitled to withdraw his plea of guilty.  He contends that there was no adequate factual basis for the plea, the plea was involuntary and inaccurate because he did not understand English, and his attorney did not effectively assist him.  The district court denied the petition, finding that the facts do not establish any of the grounds Martinez asserts in support of the petition and that Martinez offered no reason for delaying nearly six years to raise issues that he knew about at the time of sentencing.  Martinez appeals.

D E C I S I O N

The appellate courts will reverse a postconviction court’s determination of whether to permit a withdrawal of a guilty plea only if the postconviction court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  A postconviction court does not abuse its discretion if the record contains sufficient evidence to sustain the court’s finding.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). 

1.         Timeliness

Martinez waited approximately six years before seeking to withdraw his plea of guilty.  The grounds for his motion were all circumstances that necessarily existed as of the sentencing date.  He offers no explanation for the lengthy delay in bringing his petition.  He merely asserts that the district court abused its discretion in denying the petition because a manifest injustice has occurred.

There is no absolute right to withdraw a plea of guilty.  Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).  A motion to withdraw a plea of guilty must be timely and must show to the satisfaction of the court that withdrawal of the plea is necessary to correct a manifest injustice.  Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).  The law has not fixed a time period within which a motion to withdraw a plea must be made; rather, it is within the district court’s discretion to decide whether or not the motion is timely.  See Smith v. State, 596 N.W.2d 661, 664-65 (Minn. App. 1999), review denied (Minn. Aug. 27, 1999) (a five-and one-half-year delay in seeking to withdraw plea held untimely and weighed against postconviction relief); State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984) (holding that motion to withdraw plea of guilty untimely when made eight months after plea and only two months after sentencing).

Martinez should have known at the time of sentencing that he could not understand English and that his lawyer did not help him, and he could have learned of the alleged inadequate factual basis for the plea soon after the sentencing.  Yet, he took no action for six years and offers no reason for the delay.  We hold that his petition for postconviction relief was untimely and that fact alone supports the district court’s denial of the petition.  We will nevertheless address the grounds Martinez asserts in support of his petition.

2.         Factual Basis

Martinez argues that there is an inadequate factual basis to support his guilty plea, and thus the district court abused its discretion in finding that there was an adequate factual support for the plea.

To find a person guilty of second-degree murder under Minn. Stat. § 609.19(2) (1994), there must be evidence that the individual caused the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony.

A guilty plea must be supported by an adequate factual basis in the record.  Minn. R. Crim. P. 15.20.  On appeal, our scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court’s findings.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994); State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  The factual basis requirement is satisfied if the district court personally questions the defendant and the defendant tells in his or her own words what happened.  Holscher v. State, 282 N.W.2d 866, 867 (Minn. 1979).

In this case, the district court directly questioned Martinez about the crime.  Martinez testified that he stabbed the victim with a knife and that caused his death.  He also testified that this act was not an accident.  Moreover, Martinez testified with certainty:

Court:             And you’re sure in your mind, Juan, that you’re the person that stabbed [the victim] in that bedroom; is that a fair statement?

 

Appellant:       Yes, sir.

 

Martinez’s testimony establishes that the factual basis for his plea was adequate in that it proves all elements of second-degree murder.  The district court, therefore, did not abuse its discretion in finding that there was an adequate factual basis for the acceptance of the guilty plea.

3.         Accurate, Voluntary, and Intelligent Plea

Martinez next asserts that his plea was not accurate, voluntary, and intelligent because he had ineffective assistance of his counsel and because he did not understand English.

a.          Ineffective Assistance of Counsel

To receive postconviction relief based on ineffective assistance of counsel, Martinez must show that his counsel’s representation fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).  To establish Strickland’s prejudice requirement, Martinez must show that, absent his attorney’s errors, he would not have pleaded guilty and would have insisted on a trial.  Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985).

During the plea hearing, Martinez answered “yes” when the court asked him if he was satisfied with his counsel’s performance:

Q:        Do you feel you’ve had enough time to talk with [your attorney] about this charge against you?

 

A:        Yes.

 

Q:        Are you satisfied that he’s become fully informed as to all the facts and circumstances that led to this charge being brought against you?

 

A:        Yes.

 

Q:        Are you satisfied with the representation he’s provided you during this action?

 

A:        Yes.

 

Q:        Now, in your conversation with [your attorney], has he discussed with you all defenses that you might be able to raise at trial?

 

A:        Yes.

 

Martinez admitted on the record before the court accepted his plea that he was satisfied with his attorney’s performance and that he and his attorney fully discussed the facts, the charge, and possible defenses.  He has not demonstrated that his counsel’s performance fell below an objective standard or that his counsel’s representation prejudiced him in any way.  The district court, therefore, did not abuse its discretion in finding that appellant had adequate representation. 

b.         English

Finally, Martinez argues that his plea was not accurate, intelligent, and voluntary because he did not understand the English language and, therefore, could not understand the full meaning and consequences of his plea.  He claims that, because he does not understand the English language, he should have been provided a multilingual plea petition. 

The facts in Alanis v. State, 583 N.W.2d 573, 577-78 (Minn. 1998), are similar.  In Alanis, the supreme court held that a guilty plea by a Spanish-speaking defendant was accurate, even though a multilingual plea petition was not used.  Id. at 578.  The court found that the defendant did not indicate how the failure to use a multilingual plea petition caused any prejudice, that the district court went to great lengths to ensure that the defendant understood the allegations against him and the terms of his plea agreement, and that, therefore, the guilty plea was accurate.  Id.

Similarly, Martinez never requested a multilingual plea petition, nor did he indicate how the lack of a multilingual plea petition caused him any prejudice.  The record shows that Martinez sufficiently understood English to be aware of the meaning and consequences of his guilty plea.  He gave lengthy and detailed answers to questions in English, indicating that he adequately understood English.

Furthermore, during the plea hearing, the court specifically asked Martinez questions relating to his ability to understand the proceedings:

Q:        How far did you go in school, Juan?

 

A:        I went to the eighth grade.

 

Q:        Are you able to read and write the English language?

 

A:        Yes.

 

Q:        Do you feel that you’re able to fully understand these proceedings against you?

 

A:        Yes, sir.

 

Q:        Have you been able to discuss this matter fully with [your attorney] and understand all the things he’s talked with you about?

 

A:        Yes, sir.

 

Because this record demonstrates that Martinez understood English, the district court did not abuse its discretion in finding that he sufficiently understood the proceedings before him. 

The conclusion that Martinez sufficiently understood English is in accordance with State v. Lubinski, where the appellant pleaded a lack of understanding of the proceedings and consequences.  See State v. Lubinski, No. C1-00-13 (Minn. App. Aug. 20, 2000) (motion brought to vacate guilty plea on the ground that appellant was suffering from major depression and did not understand the nature and elements of the offense or the consequences of the plea was properly denied due to a showing in the record that appellant understood the proceedings before him).  

Affirmed.