This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







DeMario James Drummond, petitioner,





State of Minnesota,



Filed April 13, 2004


Minge, Judge


Ramsey County District Court

File No. K3-96-4036



John M. Stuart, State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the denial, without hearing, of his petition for postconviction relief on the grounds that he alleged facts entitling him to relief, that his plea of guilty to the underlying crime was involuntary, and that his constitutional claims were timely.  Because the district court did not abuse its discretion in denying appellant’s postconviction petition, we affirm.     


A shooting occurred in downtown St. Paul in 1996.  Appellant DeMario James Drummond informed a police officer that he was present at the scene of the crime and had fired three shots from his 9mm handgun into the ground before running off.  Police reports indicated that the three victims identified appellant as the suspect out of a photographic array.  Appellant pleaded guilty in 1997 to two counts of second-degree assault under Minn. Stat. § 609.222, subd. 1 (1996), and one count of possession of a firearm by an ineligible person under Minn. Stat. § 624.713, subds. 1(b), (2) (1996).  He was sentenced to 45 months in prison and did not appeal his sentence. 

After appellant was discharged from his sentence in December 2000, he brought a petition for postconviction relief.  The basis for the petition was that one of the victims recently admitted that the police had coached him in identifying appellant as the perpetrator of the 1996 assault and that appellant would not have pleaded guilty if he had been aware of the circumstances of that identification procedure.  The district court denied his request for an evidentiary hearing, finding that his allegations were insufficient to entitle him to relief and further found his constitutional claims untimely.



We “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “We afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id.  In general, “[t]he decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  This deference encompasses the district court’s determination of whether to permit a petitioner to withdraw a guilty plea.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998). 

A petitioner seeking postconviction relief bears the burden of establishing facts that warrant relief by a fair preponderance of the evidence.  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999).  The allegations must be “more than argumentative assertions without factual support.”  Id. (quotation omitted).  “Unless the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief, the court shall promptly set an early hearing . . . .”  Minn. Stat. § 590.04, subd. 1 (2002).  Further, the court can 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 defendant may withdraw a guilty plea or obtain a new trial based upon newly discovered evidence if he proves:

(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.


Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). 

In Brown v. State, 481 N.W.2d 852, 853 (Minn. 1992), the supreme court held that the district court did not abuse its discretion in denying the defendant’s motion to withdraw his guilty plea when the defendant was represented by counsel at the time of the plea and sentencing, there was no evidence that the defendant was mentally incompetent, eyewitness testimony indicated that the defendant was present at the scene of the crime, and the defendant had no new evidence to prove his innocence.  In State v. Harding, 260 Minn. 464, 473, 110 N.W.2d 463, 468-69 (1961), the court held that the district court did not abuse its discretion in denying the defendant’s request to withdraw his guilty plea when his statements conclusively established his participation in the crime and the defendant offered nothing to support his claim of innocence.  In State v. Caldwell, 322 N.W.2d 574, 588 (Minn. 1982), the court held that an individual’s statement was not recently discovered evidence entitling the petitioner to relief because his attorney’s failure to question the individual was due to a lack of diligence and because the new statement would not have materially affected the outcome of the case.   

Appellant’s claims do not entitle him to relief.  He offers nothing but “argumentative assertions” that he would not have pleaded guilty had he known the circumstances surrounding the allegedly flawed identification.  He further fails to show how withdrawing his plea is required to avoid a manifest injustice or would lead to a more favorable result.  In his letter to the court seeking relief, appellant admits all of the elements of the crimes with which he was charged.  While he denies shooting in the victims’ direction or causing them any harm, the crime of assault does not require those elements.  Additionally, the other two witnesses identified appellant and he does not challenge these identifications.  This provided sufficient evidence for the jury to have found him guilty.

Appellant argues, however, that the officers failed to produce exculpatory evidence, which misled him regarding the strength of the state’s case and effectively coerced him into pleading guilty.  For a guilty plea to be valid, the plea must be accurate, voluntary, and intelligent.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  The Minnesota Supreme Court has noted:

The purpose of the voluntariness requirement is to insure that the defendant is not pleading guilty because of improper pressures.  The purpose of the requirement that the plea be intelligent is to insure that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea.


State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  In Shorter v. State, 511 N.W.2d 743, 746-47 (Minn. 1994), the supreme court allowed the defendant to withdraw his guilty plea because the state had withheld exculpatory evidence, because there was not a factual basis for the plea, and because there had been an incomplete investigation. 

            This case is not as dramatic as Shorter.  Here, there was a clear factual basis for the plea.  Also, the transcript of the plea hearing shows that appellant was aware that he could contest the state’s evidence and that he had the right to cross-examine the state’s witnesses.  We conclude that the district court did not err in finding that appellant’s plea was voluntary.

            Finally, we also conclude that the district court did not err in finding that appellant’s claims that the court violated his rights to effective assistance of counsel and a speedy trial were untimely.  These claims were known to appellant at the time of his plea, and he did not raise them on direct appeal.  His failure to raise them at that time precludes him from raising them now.  See Jihad v. State, 594 N.W.2d 522, 524 (Minn. 1999).