This opinion will be unpublished and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,
Derrick Jacqueay Roberson,
Filed October 15, 2002
Steele County District Court
File No. K6-01-144
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Douglas L. Ruth, Steele County Attorney, P.O. Box 616, 303 South Cedar, Owatonna, MN 55060 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Minge, Judge.
TOUSSAINT, Chief Judge
In November 2000, a confidential reliable informant (CRI) notified Agent John Petterson of the South Central Minnesota Drug Task Force (Task Force) that an individual nicknamed “Woo” was dealing cocaine in Owatonna. “Woo” was later identified as appellant Derrick Jacqueay Roberson. The CRI specified that Roberson was soliciting assistance with selling his cocaine supply in units of grams and “eight balls.” The Task Force arranged a series of controlled buys between the CRI and Roberson.
Agent Petterson gave the CRI $260 in marked funds and a recording device to use during the first purchase, which occurred on November 30, 2000. The CRI met with Roberson and gave him $200 in exchange for a plastic baggy filled with a substance Roberson claimed was 3.5 grams of cocaine, which later tested positive for 1.9 grams of cocaine. At the time of the sale, Roberson stated that he could supply the CRI with more cocaine at a later date. Agent Petterson stored the drug evidence and arranged with the CRI, a second controlled buy which occurred on December 5, 2000. Patterson gave the CRI $300 in marked funds, a recording device, and a digital scale to verify the weight of the cocaine. Audio and video surveillance equipment was set up at the scheduled meeting place, the CRI’s apartment. Police surveillance equipment recorded Roberson’s arrival and entrance into the CRI’s apartment, the drug sale, and his leaving the scene in the same vehicle in which he arrived. The CRI gave Roberson $250 in exhange for 2.9 grams of cocaine.
On December 7, 2000, another officer told Agent Petterson that a man nicknamed “Woo,” who fit the description of Roberson, had been booked previously by the Owatonna police. Task Force agents who had worked the surveillance of the December 5 buy identified Roberson from the booking photo as the individual who sold cocaine to the CRI on November 30 and December 5. Roberson was arrested and charged with one count of second-degree sale of a controlled substance, in violation of Minn. Stat. § 152.022, subds. 1(1), 3 (2000), and two counts of fourth-degree sale of a controlled substance, in violation of Minn. Stat. § 152.024, subds. 1, 3 (2000).
In April, 2001, Roberson agreed to plead guilty to two counts of fourth-degree controlled substance crime in exchange for the state dismissing the remaining charge and taking no position regarding Roberson’s requested release pending sentencing. That same day, a plea hearing was held at which the district court accepted Roberson’s plea and released him on his own recognizance, pursuant to the plea agreement.
Roberson’s failure to complete his required pre-sentence investigation interview with the Minnesota Department of Corrections led to the district court’s issuance of a bench warrant for his arrest. On December 28, 2001, Roberson was arrested.
Ten months later Roberson filed a motion to withdraw his guilty plea and a short time later filed a second motion with an affidavit stating that he had been heavily medicated at the time of the plea and that he had received ineffective assistance of counsel because his attorney had “misrepresented” him. That same month a hearing was held on the motion. The district court denied Roberson’s motion to withdraw his guilty plea and sentenced Roberson to concurrent terms of 15 and 18 months in prison. The district court stayed execution of the sentences and placed Roberson on probation for five years. It ordered him to serve one year in jail, with 185 days stayed, as a condition of probation. This appeal follows.
Roberson argues that there was no probable cause to charge him with the alleged offenses to which he pleaded guilty. A guilty plea must be supported by an adequate factual basis in the record. Minn. R. Crim. P. 15.01; State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). The factual basis requirement of Minn. R. Crim. P. 15.01 ensures that the defendant does not plead guilty to an offense more serious than his conduct warrants. Beaman v. State, 301 Minn. 180, 183, 221 N.W.2d 698, 700 (Minn. 1974). It also ensures that a guilty plea represents a knowing, voluntary, and intelligent waiver of the rights given up by the plea. State v. Trott, 338 N.W.2d 248, 251 (1983).
When questioned by his attorney, during the plea hearing, Roberson acknowledged that he was being charged with delivering cocaine to a confidential reliable informant on November 30 and December 5, 2000. He further acknowledged that these charges were the reason that he was asking the court to accept his plea. These statements demonstrate an adequate factual basis for Roberson’s guilty plea. Because Roberson provided an adequate factual basis for the plea, we decline to address Roberson’s argument that there was no probable cause for the charges.
Roberson argues that because he was heavily medicated and had psychological problems at the time he pleaded guilty, the plea was not knowing and intelligent, and the district court abused its discretion when it denied his pre-sentencing motion to withdraw his guilty plea. See State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983) (stating that a valid guilty plea must be knowing, intelligent, and voluntary).
A criminal defendant has no absolute right to withdraw a guilty plea. Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). The decision whether to grant a pre-sentencing motion to withdraw a guilty plea is ultimately left to the sound discretion of the district court, and we will reverse only if the district court abused its discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).
Roberson argues that he should have been allowed to withdraw his plea under Minn. R. Crim. P. 15.05, subd. 2, which allows a district court to grant a defendant’s withdrawal of a plea before sentencing if it is “fair and just” to do so after considering the prejudice to the prosecution. The defendant has the burden of proving that there is a “fair and just” reason for withdrawing his guilty plea. State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991).
Although defendants who seek relief through pre-sentencing plea withdrawals under Minn. R. Crim. P. 15.05, subd. 2, are generally held to a lesser standard than those who seek withdrawals after sentencing, given the full context of the circumstances, allowing Roberson to withdraw his plea would not have been “fair and just.” See State v. Williams, 373 N.W.2d 851, 853 (Minn. App. 1985) (stating the standard for withdrawing a plea before sentencing requires a lesser showing than required for withdraw of a plea after sentencing). Roberson argues that he was heavily medicated at the time of the plea, which was a “fair and just” reason for the district court to allow the withdrawal of his plea. But, at the time of the plea, Roberson made no comments to the court suggesting that he did not understand his plea. In fact, he did just the opposite. He confirmed orally that his written plea was accurate and described all agreements that were made with respect to his plea.
Roberson also argues that he did not want to waive his right to an omnibus hearing. But the record shows that when he was asked at the plea hearing whether he understood that he was entitled to an omnibus hearing and that by entering his guilty plea he was waiving those rights, he responded in the affirmative.
In addition, during the plea hearing Roberson acknowledged that he had received psychiatric treatment in the past, but indicated that he understood the proceeding and what was taking place. Moreover, Roberson specifically acknowledged in his plea petition that he had not recently taken pills or other medication.
Roberson failed to present any evidence that his plea decision was affected by a mental condition or medications he was taking. While Roberson claims that an antidepressant medication he had taken previously may have had an impact his plea decision, there is insufficient evidence to support his claim.
Finally, Roberson argues that the district court did not fully question him regarding his condition at the time of the plea to determine whether his plea was knowing and intelligent, especially because he indicated he had recently been treated for mental illness. However, a review of the transcript shows that Roberson was asked by the court about his treatment and medications.
In light of these facts, we conclude that the district court did not abuse its discretion in denying Roberson’s motion to withdraw his guilty plea.
Roberson claims that his attorney provided him with ineffective assistance of counsel. A defendant claiming ineffective assistance of counsel must prove 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, 694, 104 S. Ct. 2052, 2068 (1984)). When determining whether an appellant has made the requisite showing, “the court must consider the totality of the evidence before the judge.” Gates, 398 N.W.2d at 562.
Roberson asserts that his attorney convinced him to plead guilty and rushed him to sign the plea petition. These claims are unsubstantiated by the record. When the court asked Roberson at the plea hearing whether he had enough time to speak with his attorney, he answered in the affirmative.
Additionally, Roberson argues that he was led to believe that entering the plea was in his best interest, and that when he sought to withdraw the plea, the original plea was no longer in his best interest. However, the district court, after reviewing the plea hearing transcript and holding a hearing on Roberson’s motion to withdraw his guilty plea, determined that Roberson’s rights were protected and explained to him by his attorney.
Because the evidence in the record is insufficient to show that Roberson’s attorney’s representation fell below an objective standard of reasonableness, we conclude that Roberson was not provided with ineffective assistance of counsel.