This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Kanabec County District Court
File No. KX-02-35
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Norman J. Loren, Kanabec County Attorney, Amy R. Brosnahan, Assistant County Attorney, 18 North Vine Street, Suite 202, Mora, MN 55051 (for respondent)
John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Appellant entered an Alford plea of guilty to two counts of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subd. 1 (h)(iii) and (g) (2000). The district court subsequently denied appellant’s motion to withdraw his guilty plea and, in accordance with the plea agreement, sentenced him to 60 months on one count and to a consecutive term of 21 months on the other count. Appellant challenges the district court’s decision denying his motion to withdraw his guilty plea. We affirm.
D E C I S I O N
The ultimate decision to allow a defendant to withdraw a guilty plea before sentencing is left to the sound discretion of the district court, “and it will be reversed only in the rare case in which the appellate court can fairly conclude that the [district] court abused its discretion.” Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). A court may permit a defendant to withdraw a plea before sentencing “if it is fair and just to do so,” considering whether granting the motion would prejudice the prosecution. Minn. R. Crim. P. 15.05, subd. 2. The “fair and just” standard does not entail an absolute right to withdraw a guilty plea before sentencing, and the court must guard against a standard that “would undermine the integrity of the plea-taking process.” Kim, 434 N.W.2d at 266.
If a guilty plea can be withdrawn for any reason or without good reason at any time before sentence is imposed, then the process of accepting guilty pleas would simply be a means of continuing the trial to some indefinite date in the future when the defendant might see fit to come in and make a motion to withdraw his plea.
Id. (quotation and citations omitted). The defendant bears the burden of proving that the reason for withdrawing the plea is fair and just. Id.
Appellant argues that the district court erroneously applied the “manifest injustice” standard instead of the “fair and just” standard when determining whether he should be allowed to withdraw his guilty plea. While the fair and just standard is applied to plea withdrawals before sentencing, a motion for withdrawal based on manifest injustice can be brought before or after sentencing. State v. Abdisalan, 661 N.W.2d 691, 693-94 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003). Thus, it is appropriate for a court to consider both standards when addressing whether a defendant should be allowed to withdraw his or her guilty plea before sentencing. And where an appellant argues that the district court erroneously applied the manifest injustice standard, this court will affirm if the appellant fails to demonstrate an abuse of discretion under the fair and just standard. State v. Williams, 373 N.W.2d 851, 853 (Minn. App. 1985).
A review of the record indicates that the district court properly considered both standards in ruling on appellant’s motion to withdraw. The district court stated on the record that the plea was knowing, voluntary, and intelligent, and thus did not constitute manifest injustice. But the court also considered appellant’s alleged lack of knowledge of the collateral consequences of the guilty plea. Specifically, the district court considered but ultimately rejected appellant’s argument that because of the Alford plea he may not be able to complete sex offender treatment, which may result in a more dangerous sex offender rating and a more stringent supervised release. The district court also noted that the plea was beneficial to appellant, and the court allowed the victim’s guardian ad litem to speak at the hearing. See Kim, 434 N.W.2d at 267 (noting that the trial court was not unjustified in considering the interests of the victim when analyzing defendant’s motion to withdraw his guilty plea under the fair and just standard). Thus, the record indicates that the district court considered factors that would have justified withdrawal only under the fair and just standard. And because the district court considered factors under both standards, we conclude that it thoroughly considered appellant’s motion.
Appellant also argues that he established that it would be fair and just for him to withdraw his guilty plea. Appellant first contends that the district court erred in denying his motion on the ground that when a different attorney showed up on the day of trial he was coerced into pleading guilty because the new attorney did not have adequate time to prepare for trial. We disagree. The district court correctly noted that (1) the new attorney was there to select the jury, while the previous attorney intended to handle the trial; (2) (2) over four months had elapsed between appointment of counsel and appellant’s guilty plea; (3) appellant testified that the new attorney had adequate time to talk with him about the case; (4) appellant acknowledged that the attorney went over the plea petition with him line-by-line; (5) both attorneys were experienced; and (6) appellant testified that he had sufficient time to talk to his attorney, that nobody persuaded him to plead guilty, and that it was his own free decision to plead guilty.
Appellant next argues that he is entitled to withdraw his guilty plea because he did not have time to go over the victim’s medical record with his trial attorney before pleading guilty. We disagree. Although appellant claims that he did not get the requested medical records until two or three days before the trial, at the plea hearing, he stated that he had adequate time to discuss the case with his attorneys. And appellant noted that he and the new attorney spent considerable time “discussing his case” the day he pleaded guilty.
Appellant also argues that he should be allowed to withdraw his plea because he was not informed of several possible consequences of his plea until after he entered it. Specifically, appellant argues that because this was an Alford plea he will not be able to complete sex offender treatment, which may result in a more dangerous rating as a sex offender and a more stringent supervised release. The district court properly rejected this argument, noting that an Alford plea does not prevent appellant from completing a sex offender treatment program. And at the plea hearing, the district court carefully explained to appellant the prison term, supervised release, the five-year conditional release term, and the total time that he would be under the control and supervision of the Commissioner of Corrections.
Finally, appellant argues that it would be fair and just to let him withdraw his guilty plea because there is no evidence of prejudice to the state. But when making this determination, the district court can also consider the interests of the victim. Kim, 434 N.W.2d at 267. While the district court did not mention prejudice to the state in considering the motion, the court heard the victim’s guardian ad litem speak against letting appellant withdraw his plea. Also, both of the state’s witnesses are minors, and the state would be prejudiced if appellant were allowed to withdraw his plea because witnesses’ memories fade over time. And by pleading guilty and then withdrawing his plea, appellant would be delaying the length of time between the incident and trial.
We conclude that the district court did not abuse its discretion in denying appellant’s motion to withdraw his guilty plea. The district court addressed appellant’s reasons for withdrawing his plea and found them insufficient. The district court is in the best position to make this determination, and it did not abuse its discretion in doing so.
Appellant filed a pro se supplemental brief in which he makes essentially the same arguments as in his other brief; he also argues that he was denied effective assistance of counsel. We disagree. To prevail on a claim of ineffective assistance of counsel, appellant must first show that his counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). This requires a showing of errors so serious that counsel’s representation fell below an objective standard of reasonableness. Id. at 687-88, 104 S. Ct. at 2064. Second, appellant must show prejudice. Id. at 692, 104 S. Ct. at 2067.
At the hearing to withdraw appellant’s guilty plea, the district court noted that appellant “had in fact been represented by competent counsel.” And during the plea hearing, appellant agreed that his attorneys had been fully informed as to the facts of the case and had fully advised him. Appellant also agreed that he had read the police reports and existing witness statements. There is nothing in the record that indicates that the performance of appellant’s attorneys fell below an objective standard of reasonableness, or that, but for counsels’ errors, the result of the case would have been more favorable to appellant. We conclude that appellant has failed to establish ineffective assistance of counsel.
Appellant also states that he believed he could withdraw his guilty plea, and the district court instructed him that he could withdraw his plea. But the district court instructed appellant that “if the Court for any reason would not approve this plea agreement, you then have the right to withdraw your plea of guilty and have a trial.” Appellant also argues that he should be able to withdraw his plea because he alleges that certain evidentiary items were not disclosed until two or three days before the trial. But the district court noted, and appellant agreed, that there was ample time to discuss the evidence with counsel before entering the plea.
Finally, appellant admits in his pro se brief that he pleaded guilty to “stall for time.” But guilty pleas are not intended to continue a trial to some indefinite date in the future. Kim, 434 N.W.2d at 266.