This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Michael Jeffers, petitioner,
State of Minnesota,
Ramsey County District Court
File No. K4961484
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
Appellant challenges the postconviction court’s order denying his motion to withdraw his guilty plea or vacate his sentence, arguing that the court abused its discretion by holding that appellant’s motion was untimely and that the imposition of the conditional-release term was not a manifest injustice. Because we conclude that the postconviction court was within its discretion, we affirm.
Appellant Michael Jeffers was charged with one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subds. 1(a), 2 (1994 & Supp. 1995). On June 24, 1996, appellant pleaded guilty to the charged offense. The maximum sentence under Minn. Stat. § 609.342, subd. 2, was 30 years; the presumptive sentence was 86 months. Minn. Sent. Guidelines IV. In exchange for appellant’s guilty plea, the state agreed not to seek an upward durational departure from the guidelines. Although the district court said that it was making no promises, the court indicated that it did not anticipate departing from the guidelines and that appellant could expect a sentence that was within the presumptive range. The mandatory five-year conditional-release term required by Minn. Stat. § 609.346, subd. 5(a) (1994), was not mentioned at the plea hearing or in the plea petition.
On July 25, 1996, the district court sentenced appellant to 86 months with five years of conditional release. Appellant’s later petition for postconviction relief claimed that, because he was not informed of the conditional-release term at the time he pleaded guilty, his plea was not knowingly entered. As a result, appellant argued that he should be permitted to withdraw his guilty plea or have his sentence modified. The postconviction court denied the petition on the grounds that it was not timely and because the imposition of the conditional-release term was not a manifest injustice or a violation of the plea agreement. This appeal follows.
D E C I S I O N
Appellant contends that the postconviction court abused its discretion by denying appellant’s motion to withdraw his guilty plea or modify his sentence. “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted). We will reverse the postconviction court’s denial of a motion to withdraw a guilty plea only if the court abused its discretion. Barragon v. State, 583 N.W.2d 571, 572 (Minn. 1998).
Once a criminal defendant enters a guilty plea, there is no absolute right to withdraw the plea. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). Rather, a court will only allow a defendant to withdraw a guilty plea after sentencing upon a timely motion and proof that the withdrawal is necessary to correct a manifest injustice. Minn. R. Crim. P. 15.05, subd. 1. The 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, 1998).
Appellant asserts that the postconviction court abused its discretion by denying appellant’s motion to withdraw his guilty plea on the ground that it was untimely. Generally, a defendant must seek to withdraw a guilty plea in a timely manner. Minn. R. Crim. P. 15.05, subd. 1; Smith v. State, 596 N.W.2d 661, 664-65 (Minn. App. 1999), review denied (Minn. Aug. 27, 1999). A delay is given greater weight against a defendant when the delay may effectively bar reprosecution. Chapman v. State, 282 Minn. 13, 16-17, 162 N.W.2d 698, 700-01 (1968) (holding that withdrawal of a plea after conviction should not be allowed without “strongest of reasons” where effect would be to seriously prejudice state’s ability to reprosecute charge due to changes in evidentiary circumstances and warning against use of guilty plea as tactical device to frustrate prosecution); Smith, 596 N.W.2d at 664-65. Delays of less than one year have been held to make a motion to withdraw a guilty plea untimely. State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986) (eleven months), review denied (Minn. Feb. 14, 1986); State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984) (eight months). Here, the time period between appellant’s sentencing and motion is almost six years. Appellant entered his guilty plea on June 24, 1996, was sentenced on July 25, 1996, and moved to withdraw his guilty plea on April 23, 2002.
Appellant asserts that his delay in seeking relief was the result of the ineffective assistance of his appellate counsel. Appellant claims that, shortly after he was sentenced, he contacted the public defender’s office in an effort to contest the imposition of the conditional-release term and was told that there was no legal basis for such a challenge. It was not until several years later, when appellant had returned to prison after violating the terms of his supervised release, that appellant read a prison newspaper article concerning possible challenges to conditional-release terms. Thereafter, appellant again contacted the public defender’s office and petitioned for postconviction relief.
To prevail on a claim of ineffective assistance of counsel, appellant must show that his counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced as a result of the deficient performance. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). Even if we accept appellant’s characterization of the public defender’s response to him in 1996, appellant has not met his burden of showing that the public defender’s performance fell below an objective standard of reasonableness when the advice given was consistent with the court’s later ruling. Further, appellant cannot demonstrate prejudice when he is unable to establish that he would have prevailed on an earlier appeal.
Because appellant waited nearly six years before moving to withdraw his guilty plea, we conclude that the postconviction court was within its discretion in determining that appellant’s motion was untimely. While we conclude that appellant’s petition is untimely, and need go no further, we will also address the merits of appellant’s claim.
2. Manifest Injustice
Appellant argues that the imposition of the conditional-release term at sentencing resulted in a manifest injustice because he was not informed of the conditional-release requirement when he entered his guilty plea. A guilty plea must meet three requirements in order to be valid—it must be accurate, voluntary, and intelligent (i.e., knowingly and understandingly made). Perkins, 559 N.W.2d at 688. A guilty plea may be withdrawn and a manifest injustice occurs if these three requirements are not met. Id. A guilty plea is intelligent if the defendant understands the charges, his rights under the law, and the consequences of pleading guilty. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).
Here, appellant pleaded guilty to one count of criminal sexual conduct in the first degree. At the plea hearing, the court explained that, in exchange for appellant’s guilty plea, the state had agreed not to seek an upward departure from a guidelines sentence. The court said that it was not making any promises, but that the court did not anticipate notifying appellant or his counsel of an intent to depart from the guidelines. While the conditional-release requirement was not mentioned during the guilty-plea hearing, it was stated at the sentencing hearing when appellant was sentenced to 86 months and five years of conditional release. Neither appellant nor his counsel objected to the sentence or sought to withdraw the plea at that time. And no direct appeal on any issue was made.
Appellant argues that, because he was not informed of the conditional-release requirement when he entered his guilty plea, his plea was not “intelligent” and the imposition of the five-year conditional-release term was a manifest injustice. But appellant knew of the conditional-release term at sentencing, which is the concluding phase of the guilty-plea process. We note that the district court may postpone acceptance of the plea until sentencing, the sentence imposed may represent a rejection of the plea agreement, and the defendant may withdraw the plea at that time if the sentence violates the agreement. See Minn. R. Crim. P. 15.04, subd. 3(1); see generally State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988) (noting that court may reject an agreement as to sentence but defendant may then withdraw his plea). Other cases allowing plea-withdrawal on this basis have pointed out that the conditional-release term was not mentioned at sentencing. See State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000) (allowing plea withdrawal or sentence modification where conditional-release term not imposed until after sentencing creating sentence exceeding upper limits of plea agreement); State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (holding that defendant may withdraw sentence modified at resentencing where conditional-release term not agreed to in the plea agreement was added). Appellant cites no case holding that a defendant informed of the conditional-release term at sentencing but offering no objection can later obtain a withdrawal of his plea. Because appellant was made aware of the conditional-release term at sentencing, we cannot say that a manifest injustice has occurred in this case. Therefore, the postconviction court acted within its discretion.