This opinion will be unpublished and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

A04-359

 

 

LaQuan Carter, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed November 30, 2004

Affirmed

Robert H. Schumacher, Judge

 

 

Hennepin County District Court

File No. 97046419

 

Daniel L. Gerdts, Brink & Gerdts, P.A., 401 Second Avenue South, Suite 840, Minneapolis, MN 55401 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)     

 

Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Parker, Judge.*


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

ROBERT H. SCHUMACHER, Judge

Appellant LaQuan Carter challenges the district court's denial of postconviction relief, arguing he should be permitted to withdraw the guilty plea he entered in 1997 as part of a plea agreement. We affirm.

FACTS

Searching for suspects in the investigation of a drive-by shooting in June 1997, police stopped Carter's vehicle. During a search of the vehicle, the police found, among other things, four pistols, two soda bottles filled with gasoline, and cotton rags. Carter and his three passengers were reputed to be members of the gang police believed were involved in the drive-by shooting.

Carter was charged in state court with five counts related to the drive-by shooting. The district court dismissed the first two counts. Carter entered a plea agreement, whereby he pleaded guilty to the charge of a crime committed for the benefit of a gang under Minn. Stat.  609.229 (1996). The prosecution dropped the two remaining counts, recommended a sentence of one year and one day and agreed that Carter could withdraw his guilty plea if he was prosecuted in federal court. Carter was sentenced to prison for one year and one day, with credit for time served. He served the full sentence.

Carter is now being prosecuted in federal court for crimes related to gang activity, drug trafficking, and related violence. One specific charge against Carter is conspiracy to possess firearms during and in relation to a drug trafficking crime, which Carter allegedly committed between 1996 and 2004. Carter petitioned the state district court for postconviction relief, seeking an order permitting him to withdraw his guilty plea to the 1997 state charge because the federal prosecutor intends to use evidence of the 1997 drive-by shooting against him. The postconviction court denied Carter's petition, reasoning that the federal prosecution is based on new charges and is not a federal prosecution of the same 1997 offense to which Carter pleaded guilty in state court.

D E C I S I O N

If a defendant demonstrates that "withdrawal [of a guilty plea] is necessary to correct a manifest injustice," the postconviction court shall permit withdrawal after the defendant has been sentenced. Minn. R. Crim. P. 15.05, subd. 1. If a prosecutor violates an essential element of a plea agreement, the defendant may withdraw the plea. State v. Ferraro, 403 N.W.2d 845, 848 (Minn. App. 1987).

In determining whether the prosecutor breached a plea agreement, courts should look to what the parties to the plea arrangement reasonably understood the terms of the agreement to be. State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000). Determining what the parties agreed to is an issue of fact for the district court to resolve. State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004). Factual findings of the district court will not be disturbed if substantiated by sufficient evidence. Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979). But issues involving the interpretation and enforcement of plea agreementsare issues of law that we review de novo. Rhodes, 675 N.W.2d at 326.

Here, we must review the postconviction court's factual finding of what the parties to the plea agreement understood "federal prosecution" to mean. Thus, we should only disturb the postconviction court's finding that the federal prosecution does not violate the plea agreement if this finding is clearly erroneous. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

Carter pleaded guilty to a crime committed for the benefit of a gang under Minn. Stat.  609.229 (1996). In exchange for the guilty plea, the plea agreement provided that there would be no federal prosecution, or if there was, Carter would be able to withdraw his plea. The district court determined the plea agreement unambiguously meant if federal charges were pursued against Carter for the same incident he could withdraw his guilty plea. The district court concluded the federal charges do not constitute a prosecution of the 1997 offense. We agree.

In federal court, Carter is charged with several crimes related to his on-going criminal activity including conspiracy to distribute and possess with intent to distribute under 21 U.S.C.  841(a)(1), 841 (b)(1)(A), 846 (2000); conspiracy to possess firearms during and in relation to a drug trafficking crime under 18 U.S.C.  924(o) (2000); and threat to commit a crime of violence under 18 U.S.C.  1959(a)(4) (2000), and Minn. Stat.  609.185, 609.713 (2000). Only the charges of conspiracy are alleged to have occurred in the same time period as the offense to which Carter pleaded guilty in state court; the fifth superseding federal indictment states that the conspiracies occurred "from at least 1996" through January 2004. The federal prosecution is based on Carter's ongoing criminal activity, not the crime to which Carter pleaded guilty. Additionally, the elements of the state charge and the federal charges are substantially different. Compare Minn. Stat.  609.229 with 18 U.S.C.  924(o), 1959(a)(4); 21 U.S.C.  841(a)(1), 841 (b)(1)(A), 846; and Minn. Stat.  609.185, 609.713.

Because the plea agreement sought to avoid prosecution of Carter for the same offense in both state and federal court, we look to caselaw defining offenses for the purpose of double jeopardy for additional support that the federal charges against Carter and the predicate state charges are not the same offense. The Supreme Court of the United States has stated that a substantive crime and a conspiracy to commit that crime are not the same offense for double jeopardy purposes. United States v. Felix, 503 U.S. 378, 389, 112 S. Ct. 1377, 1384 (1992); Garrett v. United States, 471 U.S. 773, 778, 105 S. Ct. 2407, 2411 (1985). The Supreme Court explained that a conspiracy charge and charges for the same overt acts making up the conspiracy are separate charges because "the agreement to do the act is distinct from the act itself." Felix, 503 U.S. at 390, 112 S. Ct. at 1384 (quotation omitted). Thus, the federal charges are separate and distinct from the state crime to which Carter pleaded guilty, and the postconviction court did not err in its findings or in refusing Carter's request to withdraw his guilty plea.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.