This opinion will be unpublished and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

A03-1892

 

 

State of Minnesota,

Respondent,

 

vs.

 

Randy Allen Gordon,

Appellant.

 

 

Filed May 4, 2004

Affirmed

Robert H. Schumacher, Judge

 

Crow Wing County District Court

File No. K401547

 

 

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

 

Donald F. Ryan, Crow Wing County Attorney, Kristine R. DeMay, Assistant County Attorney, County Service Building, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

Joseph Kaminsky, 6300 Shingle Creek Parkway, Suite 260, Brooklyn Center, MN 55430-2183 (for appellant)

 

 

Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.


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

ROBERT H. SCHUMACHER, Judge

Appellant Randy Allen Gordon challenges the district's court's denial of his motions to withdraw his guilty plea or, alternatively, for a downward dispositional departure from the presumptive sentence for second-degree controlled-substance crime. We affirm.

FACTS

Gordon entered an Alford guilty plea to one count of controlled-substance crime in the second degree under Minn. Stat.  152.022, subd. 2(1) (2002) (possession of methamphetamine). At the plea hearing, the prosecution provided the court with the terms of the plea agreement stating, in part, that the state would be recommending a 44-month executed sentence and would not oppose Gordon's qualification for participating in the Challenge Incarceration Program (CIP). The district court also stated that it would not oppose Gordon's qualification for CIP. Gordon's attorney said Gordon "understands that the ultimate decision for the acceptance in [CIP] is up to the Commissioner of Corrections."

After these remarks, the court asked Gordon if he had heard and understood the statements made by both of the attorneys regarding the terms of the plea agreement. Gordon said, "Yes" and, "I believe so." Later, the court asked Gordon if he understood that the second-degree offense was "punishable by 25 years in prison and a $500,000 fine." Gordon said, "Yes."

During the remainder of the plea hearing Gordon explained that prior to the hearing he had been involved in an automobile accident and had been diagnosed with a "bruise on [his] brain." He stated he had experienced severe headaches and short-term memory loss since the accident and was taking an antibiotic and pain pill to treat his symptoms. The court asked Gordon:

Q. Do you believe that you understand what's happening here today?

A. Yes.

Q. Despite the fact that you have taken the medication, are you satisfied in your own mind that you fully understand what's happening here in court?

A. Yes.

Q. And that the medication is in no way interfering with your ability to arrive at a reasoned decision as to what you want to do?

A. I don't believe so.

 

The court accepted Gordon's guilty plea. Sentencing was continued numerous times due to Gordon's deteriorating medical condition.

At sentencing, the prosecution recommended Gordon be sentenced to a prison term of 44 months. Gordon argued he should be allowed to withdraw his guilty plea because it was based on his acceptance into CIP for which he was no longer eligible because of his medical condition. In the alternative, Gordon requested a dispositional departure based on his medical condition or permission to obtain an evaluation by CIP prior to sentencing.

The court denied Gordon's motions and sentenced him to a prison term of 44 months. The presumptive sentence for a defendant with zero criminal-history points convicted of a second-degree controlled-substance crime is 48 months, executed. Minn. Sent. Guidelines IV-V. A judge may sentence a defendant to between 44 and 52 months without the sentence being deemed a departure. Id.


D E C I S I O N

1. It is well-established that a person who has "entered a plea of guilty to a criminal complaint does not have the absolute right to withdraw it." State v. Knight, 292 Minn. 419, 423, 192 N.W.2d 829, 832 (1971). A court may permit a defendant to withdraw a plea before sentencing "if it is fair and just to do so," taking into consideration whether granting the motion would prejudice the prosecution. Minn. R. Crim. P. 15.05, subd. 2. 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).

Gordon argues he is entitled to withdraw his guilty plea because it was based on the parties mutual mistake as to his eligibility for CIP. A guilty plea may be withdrawn where there is a mutual mistake by the parties of a material fact that bears on sentencing. See State v. DeZeler, 427 N.W.2d 231, 235 (Minn. 1988) (holding district court erred in denying defendant's motion to withdraw his guilty plea where there was mutual mistake as to defendant's criminal-history score and crime's presumptive, dispositional sentence). But where the district court has made no promises concerning the nature or length of the sentence, a defendant may not withdraw a guilty plea. See Spann v. State, 368 N.W.2d 377, 379 (Minn. App. 1985) (holding defendant's mistaken belief as to likely sentence, where district court has made no promise as to sentence, is not grounds for withdrawing guilty plea).

Here, the transcript demonstrates the district court and prosecution made no promise that Gordon would be accepted into CIP other than not to oppose his qualification. There is no allegation that the prosecution or district court violated this promise. The transcript further demonstrates both Gordon and his attorney understood that acceptance into CIP would ultimately be determined by the Commissioner of Corrections. We conclude, based on this record, that there was no mutual mistake regarding Gordon's guilty plea.

We note Gordon appears to be seeking to withdraw his plea on the ground that he did not realize a collateral consequence of his guilty plea. But Gordon received the sentence contemplated by his plea agreement, and the district court had no control over the fact that Gordon's current medical condition may have made him ineligible for CIP. See Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998) (holding defendant was not entitled to withdraw his plea where he was not informed he could be deported if convicted of charged crimes because deportation is collateral rather than "direct consequence" of guilty plea).

2. Under the guidelines, a district court may impose a downward dispositional departure if "[t]he offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed" or "[o]ther substantial grounds exist which tend to excuse or mitigate the offender's culpability." Minn. Sent. Guidelines II.D.2.a. The circumstances for departure must be "substantial and compelling." Minn. Sent. Guidelines I.4; State v. Richardson, 670 N.W.2d 267, 285 (Minn. 2003). The decision to depart from sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

Gordon is not arguing that his medical condition affected his actions at the time of the crime charged. Rather, Gordon argues he should not have been sentenced to incarceration because of the deterioration of his medical condition. This argument does not show an abuse of discretion by the sentencing court. See State v. Miller, 374 N.W.2d 529, 532 (Minn. App. 1985) (noting prison had adequate facilities to treat health problems when rejecting claim that poor physical health compelled alternative sentencing arrangements).

Affirmed.