This opinion will be unpublished and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
State of Minnesota,
Filed July 2, 2002
Affirmed as modified.
Robert H. Schumacher, Judge
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Mark Antoine Wynn challenges the order denying his postconviction petition seeking to withdraw his 1992 guilty plea to two counts of third-degree controlled substance crime. Wynn argues that the postconviction court abused its discretion in setting aside his conviction on count III, to which he had agreed to plead guilty, and allowing the conviction on count II to stand. Wynn argues that his plea was inaccurate due to confusion between the two offenses, was not voluntary because he pleaded guilty to two counts, one more than provided for in the plea negotiation, and was not intelligent because the district court failed to inquire adequately and because he relied on his attorney’s deficient advice. We affirm as modified.
On June 18, 1991, Wynn was charged with six counts of felony controlled substance crime: two counts of third-degree controlled substance crime (possession), two counts of third-degree controlled substance crime (sale), and two counts of second-degree controlled substance crime (sale). These six separate crack cocaine offenses occurred between April 4, 1991, and May 3, 1991. Counts II and III charged Wynn with third-degree controlled substance crime for unlawfully selling one or more mixtures containing cocaine base. Count II charged Wynn with activity that took place on April 25, 1991, and count III charged Wynn with activity that took place on May 1, 1991.
At the plea hearing on September 3, 1992, the prosecutor stated on the record:
We’ve reached a resolution of this matter, the terms and conditions of which we recommend to the Court as follows:
The defendant to enter a plea of guilty to Count III and the State recommends a six month cap on any incarceration. It looks like the defendant’s done a fair chunk of that. This may well be a release at sentencing kind of deal. All other counts to be dismissed at the time of sentencing.
Defense counsel agreed on the record. At that point, there was a misunderstanding when the clerk arraigned Wynn on the wrong date. Wynn proceeded to plead guilty to sale of cocaine occurring on or about April 25, 1991, and to sale of cocaine occurring on or about May 1, 1991. Wynn also entered a factual basis admitting that on April 25, 1991, and May 1, 1991, he sold cocaine to undercover police officers. Both defense counsel and the district court conducted an inquiry of Wynn on the record. The plea petition provided that Wynn agreed to plead guilty to counts “2 + 3” in exchange for a “6 month cap.” The district court accepted Wynn’s plea petition and his guilty plea. On September 18, 1992, Wynn was conditionally released and ordered to appear for sentencing on September 23, 1992. Wynn failed to appear and a bench warrant was issued for his arrest.
At the sentencing hearing on March 1, 1995, the prosecutor stated on the record that Wynn had pleaded guilty in September 1992 to counts II and III, third-degree controlled substance crime, for the sale of crack cocaine. Pursuant to the negotiation, and at the request of defense counsel and the prosecutor, Wynn was sentenced to 21 months for count II and 26 months for count III; the sentences were to run concurrent to each other and to Wynn’s federal sentence. Wynn was given credit for 599 days, satisfying both sentences. Counts I, IV, V, and VI were dismissed at sentencing.
On January 11, 2001, Wynn filed a postconviction petition to withdraw his guilty plea. On September 18, 2001, the postconviction court denied Wynn’s motion to set aside his conviction for count II and granted his motion to set aside his conviction for count III. This appeal followed.
Appellate courts “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) (citation omitted). Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Id. (citation omitted). “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Id. (citation omitted). 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).
“A criminal defendant has no absolute right to withdraw a guilty plea once entered.” Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997) (citations omitted).
The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.
Minn. R. Crim. P. 15.05, subd. 1. A defendant bears the burden of proving by a preponderance of the evidence that the facts warrant withdrawal of the plea. Lundin v. State, 430 N.W.2d 675, 679 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988).
Wynn pleaded guilty in September 1992 and did not file his postconviction petition to withdraw his guilty plea until more than eight years later, in January 2001. A petitioner must act with due diligence in pursuing his postconviction claims, Sutherlin v. State, 574 N.W.2d 428, 432-33 (Minn. 1998), and must seek to withdraw a guilty plea in a timely manner. Smith v. State, 596 N.W.2d 661, 664-65 (Minn. App. 1999), review denied (Minn. Aug. 27, 1999).
Wynn argues that his plea was inaccurate, involuntary, and the result of ineffective assistance of counsel. Because Wynn failed to raise these issues before the postconviction court, these issues are waived. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding that claim had been waived by defendant’s failure to raise it before district court on petition for postconviction relief).
Wynn argued below and argues on appeal that he should be allowed to withdraw his guilty plea because it was not knowing and intelligent and because the district court did not honor the plea agreement. Both of these arguments are based on the confusion surrounding the date of offense for the various counts, and on the fact that Wynn pleaded guilty to two counts of third-degree sale of cocaine, when the initial negotiation called for him to plead guilty only to one count. The postconviction court sought to remedy the situation by setting aside one of the convictions so that Wynn would have what he bargained for, one conviction of third-degree sale of cocaine.
In its September 2001 order, the postconviction court found that Wynn “negotiated an agreement with the State of Minnesota to plead guilty to one count of Third Degree Sale of Cocaine,” that “[t]hrough the inadvertence of counsel, [Wynn] entered a plea and factual basis to two counts of Sale of Cocaine in the Third Degree,” and that the district court, “relying on the representations of counsel, sentenced [Wynn] on two counts of Sale of Cocaine in the Third Degree.” There is sufficient evidence in the record to support the postconviction court’s findings, and these findings are not clearly erroneous.
The postconviction court then denied Wynn’s motion to set aside his conviction on count II and granted his motion to set aside his conviction on count III. These two counts are identical, except that the offenses occurred on different dates. Wynn argues that the postconviction court abused its discretion in setting aside his conviction on count III, to which he had originally agreed to plead guilty, and allowing his conviction on count II, which was not part of the original plea negotiation, to stand. We modify the postconviction court’s order; we order entry of judgment on count III and set aside Wynn’s conviction on count II.
Affirmed as modified.