This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-2018

 

Ollie Arthur Giles, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed September 7, 2004

Affirmed

Kalitowski, Judge

 

Scott County District Court

File No. 01-12977

 

Barry V. Voss, Samuel Glover, 527 Marquette Avenue South, Suite 2355, Minneapolis, MN 55402 (for appellant)

 

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

 

Pat Ciliberto, Scott County Attorney, Michael J. Groh, Todd Zettler, Assistant County Attorneys, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

 

††††††††††† Considered and decided by Wright, Presiding Judge; Randall, Judge; and Kalitowski, Judge.


U N P U B L I S H E D†† O P I N I O N

KALITOWSKI, Judge

††††††††††† Appellant challenges the district courtís decision denying his petition for postconviction relief, claiming he is entitled to an evidentiary hearing to determine whether he was denied effective assistance of counsel.† We affirm.

D E C I S I O N

 

Postconviction rulings are reviewed under an abuse of discretion standard.† State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).† The courtís inquiry is limited to ďdetermin[ing] whether there is sufficient evidence to sustain the postconviction courtís findings.Ē† Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).† In the absence of an abuse of discretion, this court will not disturb the postconviction courtís decision.† Id.† But on review of a postconviction courtís denial of a petition for postconviction relief without an evidentiary hearing, any doubts about whether a hearing is required are resolved in favor of the petitioner.† Patterson v. State, 670 N.W.2d 439, 441 (Minn. 2003).† An evidentiary hearing is not required if the petition, files, and record conclusively show that the petitioner is entitled to no relief.† Id.†

††††††††††† Appellant argues that he is entitled to an evidentiary hearing to determine whether he was denied effective assistance of counsel.† Specifically, appellant asserted in his affidavit that he would not have pleaded guilty had his attorney not advised him that he was eligible for admission into the Challenge Incarceration Program, also known as boot camp.† To prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate that counselís representation fell below an objective standard of reasonableness, and a reasonable probability exists that the outcome would have been different but for counselís errors.† Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).† A reasonable probability is one that is sufficient to undermine confidence in the outcome.† Id.† There is a strong presumption that counselís performance fell within the range of reasonable assistance.† See State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).

Although not explicitly stated in his brief, the ultimate relief appellant seeks is to withdraw his guilty plea.† But 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 allow a defendant to withdraw a guilty plea after sentencing only 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).† A guilty plea must be accurate, voluntary, and intelligent to be valid.† Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).† If these requirements are not met, a manifest injustice occurs, and a defendant should be allowed to withdraw his plea.† Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).† A guilty plea is intelligent if the defendant understands the charges, his rights under the law, and the consequences of pleading guilty.† Id.† Thus, appellant was entitled to an evidentiary hearing unless the petition, files, and record conclusively show that a manifest injustice has not occurred.

††††††††††† Here, we conclude that appellant is not entitled to relief because he cannot show a manifest injustice or ineffective assistance of counsel.† Under Minnesota law, defense counselís failure to advise a criminal defendant of collateral consequences of a guilty plea does not constitute a manifest injustice requiring withdrawal of a guilty plea or ineffective assistance of counsel.† Berkow v. State, 583 N.W.2d 562, 564 (Minn. 1998).† Admission into the boot camp is a collateral consequence of appellantís guilty plea because it is undisputed that the district court does not have the authority to decide who may participate in the program.

In Alanis, as here, appellant was promised that he was eligible for boot camp.† 583 N.W.2d at 578.† But in Alanis, the Minnesota Supreme Court rejected the argument that a plea was not intelligent where the defendant claimed to have understood that he would be sentenced to six months in boot camp and was subsequently not admitted into the boot camp.† Id.† The court held that where a defendant is aware of the direct consequences of his plea and receives the sentence agreed to, his plea is intelligent despite collateral consequences.† Id. at 578-79.† Thus, because appellant here was aware of the charges, his rights, and the direct consequences of his plea, we conclude that the district court did not abuse its discretion in denying his petition for postconviction relief.

Moreover, ď[a]lthough a plea of guilty may be set aside where an unqualified promise is made as part of a plea bargain and is thereafter dishonored, a plea of guilty should not be set aside merely because the accused has not achieved his unwarranted hope.Ē† Olness v. State, 290 Minn. 198, 202, 186 N.W.2d 706, 709 (1971) (citing Schwerm v. State, 288 Minn. 488, 181 N.W.2d 867 (1970)).† In Olness, the defendant filed a petition for postconviction relief after pleading guilty.† At a postconviction hearing, the defendant, his mother, his former wife, and an acquaintance all testified that the defendantís trial counsel promised him a year in the workhouse or probation, which he did not get.† Id. at 199-200, 186 N.W.2d at 707.† Following the hearing, the district court denied relief, stating ď[w]hile the petitioner earnestly hoped that he might get probation and his attorney . . . stated that (this disposition) may be possible, the petitioner realized that he was subject to the full punishment of law by the entry of his plea of guilty.Ē† Id. at 200, 186 N.W.2d at 708.

Here, even if appellantís counsel promised appellant that he was eligible for the boot camp, that would only amount to a promise that admission into the boot camp may be possible, similar to Olness.† It would not constitute an unqualified promise made as part of a plea agreement, which might require that a guilty plea be set aside.† The record indicates that the district court advised appellant that the maximum penalty for first-degree controlled substance crimes is 30 years in prison.† Thus, appellant was made aware of the punishment he was subject to by pleading guilty.

While the sentencing transcript indicates that the district court recommended that appellant participate in the boot camp, there is no evidence that the district court ever promised appellant that he would participate in the program.† Nor is there anything in the plea petition, plea transcript, or sentencing transcript that indicates that appellant was promised that he was eligible for the boot camp.† The only evidence of a promise anywhere in the record is appellantís statement, filed nearly 17 months after sentencing.† And courts have denied postconviction relief where a petitionerís assertion of an unfulfilled promise is not supported in the record.† See Brown v. State, 292 Minn. 174, 177, 193 N.W.2d 613, 615 (1972) (upholding district courtís decision denying postconviction relief, noting that ď[o]ther than petitionerís postconviction statement that he was promised probation, there is no proof of any such agreementĒ).† Moreover, the plea petition and transcript indicate that appellant stated that he understood the rights he was forfeiting by pleading guilty and that he admitted to every element of the crime.

Finally, if appellant was granted postconviction relief and was allowed to withdraw his guilty plea, he would still not be eligible for the boot camp.† To succeed on his claim of ineffective assistance of counsel, appellant would need to show with reasonable probability that, but for the alleged errors of his counsel, he would not have pleaded guilty.† State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).† Here, we note that appellant received a substantial benefit by pleading guilty.† As part of the plea agreement, the state agreed to dismiss the fleeing-an-officer charge against him.† Appellant also received a downward durational departure from the presumptive sentence on the first-degree controlled substance offense.† And importantly, there was substantial evidence of appellantís guilt with respect to both of the charged offenses.† See Ecker, 524 N.W.2d at 718) (noting that the state had a very strong case against the defendant and that several charges against him were dropped as a result of the plea, in concluding that he had failed to show with reasonable probability that he would not have pleaded guilty but for the errors of counsel).

Because the petition, files, and record conclusively show that appellant is entitled to no relief, we conclude that the district court did not abuse its discretion in denying appellantís petition for postconviction relief without an evidentiary hearing.

Affirmed.