This opinion will be unpublished and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-02-452

 

 

State of Minnesota,

Respondent,

 

vs.

 

Ambrose Cornell Davis, Sr.

Appellant.

 

 

Filed October 29, 2002

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 21814

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Ambrose Cornell Davis, Sr. claims the district court abused its discretion by refusing to allow him to withdraw his guilty plea and sentencing him to 98 months executed following Davis's failure to meet conditions of his release pending sentencing, when complying with the sentencing conditions would have resulted in a stayed sentence. We affirm.

FACTS

On March 4, 2000, Davis committed two offenses in Minneapolis, resulting in charges of first and second degree aggravated robbery. On May 24, 2000, Davis entered into a plea agreement in which he pleaded guilty to the first-degree charge in exchange for the state dropping the second-degree charge. When he pleaded guilty, Davis was a five-time felon facing a presumptive sentence under the sentencing guidelines of 98 months executed for the first-degree aggravated robbery. The plea included a downward dispositional departure the sentence would be stayed in response to Davis's specific request. Davis claimed he needed lung surgery for emphysema, and he wanted to have that surgery in Chicago. The state agreed to the departure, subject to certain conditions:

[Prosecution]: The negotiation calls for a plea to Count I, aggravated robbery first degree, for the State to dismiss Count II, aggravated robbery, second degree. There will be a stay of execution of 98 months for seven years during which time [Davis] will be on probation, initially in Minnesota but immediately after sentencing or as soon thereafter as possible, could be transferred to Chicago.

 

* * * *

 

If [Davis] would be allowed to go to Chicago prior to sentencing for some necessary surgery, between now and sentencing, if [Davis] were to commit any offenses or if [Davis] were not to appear [at] sentencing, which we have scheduled for July 19 at 9:00, the negotiation would change from a stay of 98 months to an executed sentence of 98 months.

 

After the prosecution read the agreement and terms into the record, Davis identified his written waiver of rights form for the record and also stated his waiver of rights on the record. Davis then confirmed his understanding of the plea agreement and terms as read into the record previously by the prosecution:

[Defense Counsel]: With respect to the plea agreement, is that your understanding of what we talked about this morning?

 

[Davis]: Yes, sir.

 

[Defense Counsel]: Is that what you want to do?

 

[Davis]: Yes, sir.

 

[Defense Counsel]: Do you have any questions with respect to the plea agreement of myself or the court?

 

[Davis]: No.

 

Davis then exercised his right to allocution to the crimes in question, and explained in some detail the surgery he claimed was needed in Chicago.

Davis did not return from Chicago for sentencing. Eventually, Davis was arrested, arraigned, and pleaded guilty to a felony committed in Cook County, Illinois, in October 2000. Davis was sentenced to 18 months for the Illinois offense. After serving the majority of that sentence, Davis was returned to Hennepin County District court in January, 2002, for sentencing.

The state asked the district court to impose the presumptive sentence of 98 months executed because Davis failed to meet the terms of the negotiated downward departure. Davis asked the court to stay the 98-month sentence, the downward departure, despite his failure to comply with the terms. Davis also denied that he committed the Minnesota offenses, denied that he had committed the Illinois offense, and claimed he did not understand the terms of the plea agreement.

The district court responded to Davis, indicating that Davis was told he would get the downward departure only if he met the conditions of the negotiated plea. The district court then refused to allow Davis to withdraw his guilty plea and sentenced him to the presumptive, executed sentence of 98 months.

D E C I S I O N

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). When credibility determinations are critical in determining whether a guilty plea was accurate, voluntary, and intelligent, "a reviewing court will give deference to the primary observations and trustworthiness assessments made by the district court." State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997) (citations omitted), review denied (Minn. June 11, 1997). The interpretation and enforcement of plea agreements present issues of law, however, subject to de novo review by this court. State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000).

1. To be valid, a guilty plea must be knowing, intelligent, and voluntary. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). In his principal brief, Davis claims that the plea was not knowingly made "because he was suffering from emphysema and needed to return to Illinois to have lung surgery." Davis claims he "only pled guilty so he could go home and have the surgery." Davis is apparently making a coercion argument, an argument that would be more compelling if he had actually had the surgery. Davis's own statement "the operation I [was] supposed to get" at his sentencing indicates that he never had the surgery. Accordingly, it would not appear Davis felt coerced to accept the plea because he was so concerned about getting this operation in Chicago given that he did not deem it necessary to have the operation at any time during his three months in Illinois prior to his incarceration.

The other reason Davis offers in his brief is his claim that he did not actually commit the crimes with which he was charged and to which he allocuted at the plea hearing. As set forth above, however, this court defers to the district court's determinations on credibility relative to plea agreements. Aviles-Alvarez, 561 N.W.2d at 527. It is fairly clear that the district court did not believe Davis's claim of innocence. This was not an abuse of discretion.

2. Davis also claims "he thought he was getting a probationary sentence." The district court told Davis that he was told "you get probation if you show up for sentencing and you don't commit any crimes in the interim." Clearly Davis did not show up at sentencing (nor has he offered any excuse for his absence), and he committed another crime. Thus, the issue becomes whether the district court properly interpreted the plea agreement of May 24, 2000 and terms thereof as enforced at the January 24, 2000 sentencing.

The prosecution clearly set forth the conditional nature of the stayed sentence, which would become an executed sentence should Davis fail to comply with the terms of the release pending the sentencing hearing:

[I]f [Davis] were to commit any offenses, or if [Davis] were not to appear for sentencing, which we have scheduled for July 19 at 9:00, the negotiation would change from a stay of 98 months to an executed sentence of 98 months.

 

(Emphasis added.) Davis stated on the record that he understood and agreed to the plea, and he had no questions for his attorney or the court. The plea agreement and the conditional terms associated with the stay were clearly stated on the record, and the district court correctly interpreted and enforced the plea agreement. Davis received the presumptive sentence under the guidelines.

3. We have reviewed Davis's pro se brief and find the arguments advanced without merit.

Affirmed.