This opinion will be unpublished and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

C0-01-2071

 

State of Minnesota,
Respondent,

vs.

David Thomas Bernier,
Appellant.

 

Filed July 16, 2002

Affirmed

Huspeni, Judge*

 

 

Dakota County District Court

File No. K4003402

 

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

 

James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence Hammerling, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

††††††††††† Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.

U N P U B L I S H E D† O P I N I O N

 

HUSPENI, Judge

 

On appeal from his convictions of drive-by shooting and gross misdemeanor DWI, appellant argues that the district court abused its discretion by denying his presentencing motion to withdraw his Alford plea.† Because the record demonstrates that appellantís attorney, opposing counsel, and the court thoroughly explained to appellant the nature of an Alford plea and that appellant fully appreciated the consequences of the plea, we affirm.†

FACTS

 

††††††††††† Appellant David Bernier and his brother met to discuss their family relationship.† Each man sat in his own car in a parking lot and spoke to the other through rolled-down windows.† They began to argue, appellant pointed a gun at his brother, and then shot three bullets into his brotherís fleeing car.† Appellant was charged with drive-by shooting and second-degree assault; a felon-in-possession-of-a-firearm charge was subsequently added.†

††††††††††† Appellant signed an Alford plea agreement and pleaded guilty to the drive-by-shooting charge, a DWI charge (arising out of a separate incident), and probation violations.† In exchange for these pleas, respondent dismissed the assault and felon-in-possession-of-a-firearm charges, agreed to ask for no more than 68 months executed, the presumptive sentence, and agreed that appellant could argue for a durational departure.† Page one of appellantís plea agreement contains the handwritten word ďAlfordĒ; page three contains the handwritten words ďAlford Plea 1 + 3Ē following a statement acknowledging that the defense attorney had negotiated a plea.†

††††††††††† At the plea hearing, when asked for his plea by the court, appellant did not respond.† Appellantís attorney suggested,

Your Honor, I think the hesitation of my client is because Iíve explained to him that this is pursuant to an Alford plea, and so I think heís thinking that pleading guilty at this time isnít pursuant to the Alford plea.

 

The court told appellantís attorney to explain the proceeding to appellant off the record, which the attorney did, and appellant then pleaded guilty according to the agreement.† The court and both attorneys questioned appellant extensively on whether he understood his plea agreement.† The court asked appellant whether he understood and admitted to the charges against him, and appellant stated that he did.† Appellantís attorney then asked,

Q. Now pursuant to the Alford plea, as we discussed, youíre pleading guilty to drive-by shooting on the date of December 7th, 2000, in the city of Inver Grove Heights.† Is that correct?†

 

††††††††††††††††††††††† A: Yes.†

* * * *

Q: Do you understand that your brother would tell the Court or the jury that you met him at his apartment complex in the parking lot and you guys had an altercation, and as a result of that altercation, you pulled out a gun and you shot at his vehicle?† You understand thatís what he would testify to?

 

††††††††††††††††††††††† A: Yes, I understand that.†

Q: And * * * you understand that the State would also present police officers who would testify that they received a phone call from your brother and they arrested you * * * ; is that correct?

 

A: Yes, it is.

Q: And you understand that the police officers would testify that when they saw your brotherís vehicle, that there were three bullet holes in the car.† Do you understand that?

 

A: Yes.

* * * *

Q: And you have expressed to me from the very beginning of this case that you adamantly disagree with the facts of this case.† Is that correct?

 

A: Thatís correct.†

 

Q: [B]ut you feel that if the jury or the judge will hear your case and they will listen to the testimony of the other witnesses, that there is a substantial likelihood that you could be convicted of this crime as well as the other charges that youíre charged with.† Is that correct?†

 

††††††††††††††††††††††† A: Yes.†

Q: And itís based on that that you are choosing at this time to plead guilty of the drive-by shooting and proceed with sentencing at a later date.† Is that correct?

 

A: Yes.

 

The prosecutor asked appellant,

Q. Do you have any questions at all about that plea agreement?

 

A: No, I donít.

 

Q: Do you have any questions at all about whatís going on today?

 

A: No, I donít.

 

The judge told appellant that he would probably go to prison immediately after sentencing, and appellant responded, ďOkay.Ē

††††††††††† At appellantís sentencing hearing, his attorney moved to withdraw the guilty plea:

When [appellant] pled to these offenses, he pled pursuant to the Alford plea.† At that time [appellant] and his family were under the assumption that an Alford plea meant that they would have an opportunity to withdraw their plea if circumstances arose that they would be entitled to the trial.† That could have been my mistake, and Iím willing to accept that they misunderstood or I didnít articulate clearly to them.†

 

The judge reviewed the transcript and the plea agreement and stated that he found no basis to allow appellant to withdraw his plea or any ďcompelling reasonsĒ to convince him otherwise.† The court denied appellantís motion and proceeded to the hearing, where appellantís brother testified, ďI was drinking, and, you know, I canít necessarily say for sure if it was him or not.Ē† The court sentenced appellant according to the plea terms.

D E C I S I O N

 

An appellate court reviews a district courtís decision regarding withdrawal of a guilty plea under an abuse-of-discretion standard.† Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).† This court is generally limited to determining whether sufficient evidence exists to sustain the district courtís findings.† Id.† If the court makes specific findings and conclusions as to the defendantís claims, we may independently review the record.† Id.

A defendant does not have an absolute right to withdraw a guilty plea once it is entered.† Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).†

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 manifest injustice occurs if a guilty plea is not accurately, intelligently, and voluntarily entered, because entry of a plea is a waiver of the constitutional right to a trial.† Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).† To be voluntary, a guilty plea must not be in response to improper pressures or inducements.† Id.† For a guilty plea to be accurate, the defendant must be aware of the offenses that he could be properly convicted of at trial.† Id.† And for a guilty plea to be intelligent, the defendant must be aware of the relevant circumstances and direct consequences of the plea.† Id.† Direct consequences flow definitely, immediately, and automatically from the guilty plea.† Id. at 578.† The burden is on the defendant to show manifest injustice.† Id. at 577.

††††††††††† A court may also, in its discretion, ďallow the defendant to withdraw a plea at any time before sentence if it is fair and just to do so.Ē† Minn. R. Crim. P. 15.05, subd. 2.† In determining whether the defendantís reason is fair and just, the court must give due consideration to the defendantís reasons as well as to ďany prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendantís plea.Ē† Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).† The defendant bears the burden of proving that withdrawal of his plea is fair and just.† Id.

Appellant argues that he misunderstood the nature and consequences of his Alford plea.† He argues that he and his family believed that they could withdraw the plea if circumstances arose entitling appellant to a trial, and appellant asserts that he was under the pressure of ďunusually pervasive family involvement.Ē† Appellant points out that he has consistently contested respondentís factual allegations when he accepted the Alford plea and that he learned at sentencing that his brotherórespondentís primary witnessówas changing his testimony.†

We conclude that the district court was within its broad discretion in refusing to allow appellant to withdraw his plea.† The record shows that (1) appellant signed the plea agreement, which indicated twice that it was an Alford plea; (2) appellantís counsel explained to him the nature of the Alford plea before the plea hearing; (3) appellantís counsel explained to him again, at the plea hearing, that he was in fact entering into the Alford plea; and (4) the judge, appellantís own attorney, and respondentís attorney questioned appellant extensively about whether he understood the plea.† While the court should have instructed appellantís attorney to explain the Alford plea to appellant on the record, there is sufficient evidence to show that appellant must have understood the implications of his plea.†

Moreover, appellant did not plead guilty in exchange for a family member receiving a shorter sentence, and appellant has not suggested that his plea was involuntary.† See State v. Danh, 516 N.W.2d 539, 542 (Minn. 1994) (stating that the district court must carefully examine whether a ďpackage deal,Ē where a defendant pleads guilty in exchange for leniency to a family member, is made voluntarily).† Nor did appellant claim that his attorney informed him or his family that he could withdraw his plea or that the plea negotiation included a provision permitting withdrawal.† Clearly, the plea agreement contains no such provision.† In addition, appellant acknowledges that he cannot withdraw his plea merely because he has now learned that respondentís case was weaker than he originally believed when he pleaded guilty.† See State v. Tuttle, 504 N.W.2d 252, 256-57 (Minn. App. 1993) (holding that, once a defendant has admitted guilt, he cannot withdraw later even if the victim recants the charges).† Appellant has not alleged that his brotherís recantation was somehow consistent with appellantís proposed version of the facts; in fact, the majority of his brotherís testimony at sentencing was consistent with respondentís original theory of the case.†

We recognize that, because the victim was appellantís brother, appellant may have experienced strong emotional involvement during the proceedings against him.† We also note that respondent has not alleged that it would have suffered prejudice if appellant had withdrawn his plea.† But our review of the record demonstrates that the district court, opposing counsel, and especially appellantís own attorney fully informed appellant of the nature of the Alford plea and that appellant appreciated the consequences of the Alford plea when he accepted it.† The district court did not abuse its discretion by refusing to accept appellantís withdrawal of his Alford plea.

††††††††††† Affirmed.



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