This opinion will be unpublished and

may not be cited except as provided by

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






Derek Leake-Bey, petitioner,





State of Minnesota,



Filed January 25, 2005


Kalitowski, Judge


Hennepin County District Court

File No. 00010656


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


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


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


            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from the postconviction court’s denial of his postconviction petition, appellant argues that he is entitled to withdraw his guilty plea to first-degree aggravated robbery because (1) he did not knowingly or intelligently plead guilty; (2) he was denied effective assistance of counsel; and (3) the postconviction court erred in denying him the opportunity to withdraw his guilty plea.  Appellant also argues that his sentence should be reduced pursuant to Blakely v. Washington, 124 S. Ct. 2531 (2004).  We affirm.



            In a postconviction evidentiary hearing, appellant bears the burden to prove by a preponderance of the evidence the facts alleged in the petition.  State v. Johnson, 653 N.W.2d 646, 649 (Minn. App. 2002) (citingMinn. Stat. § 590.04, subd. 3 (2000)).  Appellate courts “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) (citation omitted).  But interpretation and enforcement of plea agreements involve issues of law, which appellate courts review de novo.  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).



            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).  But a district court shall allow a guilty plea to be withdrawn when it is necessary to correct a “manifest injustice.”  See Minn. R. Crim. P. 15.05, subd. 1.  “A manifest injustice occurs if the plea does not comply with constitutional due process requirements that the plea be accurate, voluntary, and intelligent.”  State v. Byron, 683 N.W.2d 317, 322 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).

            Appellant argues that his attorney or her agents promised him a reduced prison sentence and drug treatment in return for a guilty plea.  Appellant pleaded guilty to first-degree aggravated robbery.  Appellant’s attorney, citing the presentence recommendations from two dispositional advisors, requested a downward dispositional departure based on appellant’s need for drug treatment and the improvements he had made in the last three years.  The prosecution requested that the district court sentence appellant to 240 months as a career and violent offender.  And the district court sentenced appellant to 180 months incarceration, an upward departure from the 108-month presumptive sentence. 

            A record showing a voluntary guilty plea may later preclude a claim that the plea was involuntary.  See State v. Ecker, 524 N.W.2d 712, 719 (Minn. 1994).  In Ecker, the defendant claimed that prosecutors and his counsel coerced him into pleading guilty by putting pressure on him and his family.  Id. at 718-19.  Five years after his plea, the defendant filed for postconviction relief.  Id. at 714.  At the evidentiary hearing, the defendant’s sister testified that the defendant expressed dissatisfaction with his attorneys and that the attorneys pressured the family for a guilty plea.  Id. at 719.  But the supreme court held that the record showed that the defendant’s plea was voluntary because he repeatedly stated on the record that he was making his own decision.  Id.

            Moreover, “[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.”  Olness v. State, 290 Minn. 198, 202, 186 N.W.2d 706, 709 (1971).  In Olness, the defendant, after pleading guilty, filed a petition for postconviction relief.  Id. at 199, 186 N.W.2d at 707.  At a postconviction hearing, the defendant, his mother, his former wife, and an acquaintance all testified that the defendant’s 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 707-08.  Following the hearing, the postconviction court denied relief, stating “[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.”  Id. at 200, 186 N.W.2d at 708.  The supreme court affirmed the district court’s findings because ample evidence in the record supported the findings.  Id.

            Here, the record shows that appellant voluntarily pleaded guilty on March 27, 2000, orally and by plea petition.  At the plea hearing, appellant indicated that he reviewed the plea petition with counsel and that he understood the petition.  After he waived his jury trial right, his attorney then questioned him on his plea.  Appellant indicated that he understood that the prosecutor could ask for an upward departure, that the district court had the discretion to sentence appellant, and that he understood that the parties had not negotiated a sentence as he had entered a straight guilty plea.

            At the evidentiary hearing, the postconviction court found that appellant’s attorney did not promise appellant that he would not go to prison if he entered a straight guilty plea.  His attorney’s agent, who was brought in to provide the district court with alternatives to incarceration, testified at the evidentiary hearing that he never promised appellant that the district court would follow the agent’s recommendations for sentencing.     Our review of the record of appellant’s guilty plea indicates that because he knowingly and voluntarily entered his guilty plea as a strategy to possibly obtain a reduced sentence, those facts are conclusive under Ecker.  And the postconviction court found that the evidence offered against appellant was “overwhelming,” thus increasing the likelihood that appellant pleaded guilty to receive a reduced sentence.  In addition, the record supports the postconviction court’s finding that the attorney’s agents did not lead petitioner to believe that he was accepted in an alternative sentencing program.  Therefore, we conclude that the postconviction court did not abuse its discretion in determining that appellant’s plea was voluntary.



            Appellant argues that he was denied effective assistance of counsel because his attorney promised him a reduced sentence that he did not receive in exchange for his guilty plea.  A defendant must affirmatively prove that his counsel’s representation “‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citation omitted) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

            Appellant argues that his attorney made a “gross mischaracterization” of his likely sentence to induce a guilty plea.  Under Gates,appellant has a significant burden because he must prove that his counsel promised him that he would receive a lesser sentence in return for a straight guilty plea, and that if appellant’s counsel made that promise, it fell below an objective standard of reasonableness for criminal representation.  Further, appellant must show that but for the error, the result of the proceedings would be different.  See Gates, 398 N.W.2d at 561-62.

            At the evidentiary hearing, the postconviction court heard testimony from appellant, appellant’s mother, appellant’s former attorney, and her agents.  The postconviction court concluded that appellant’s attorney and the attorney’s agents did not misrepresent appellant’s sentence, that appellant was not induced to plead guilty, and that no evidence existed to show that appellant’s attorney’s performance fell below the level of competence required of a defense attorney.

            We conclude that the record of the guilty plea supports the postconviction court’s findings and contradicts appellant’s allegation that his attorney promised him a different result.  The record indicates that appellant knew the consequences of pleading guilty and voluntarily did so.  Thus, the postconviction court did not abuse its discretion in concluding that appellant failed to prove that his attorney rendered ineffective assistance.



            Appellant argues that he should be allowed to withdraw his guilty plea to correct a manifest injustice.  Where a defendant is misled about the consequences of his guilty plea because of representations made by defense counsel, he should be allowed to withdraw his plea “to correct a manifest injustice.”  State v. Loyd, 291 Minn. 528, 530, 190 N.W.2d 123, 124 (1971).  The Minnesota Rules of Criminal Procedure also permit a defendant to withdraw a guilty plea upon a timely motion and with proof that withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1. 

            In Loyd, the supreme court permitted the petitioner to withdraw the plea because, before his sentence was imposed, the defendant asked leave to withdraw the plea if the plea agreement did not satisfy the judge.  Loyd, 291 Minn. at 530, 190 N.W.2d at 124.  But the district court denied the request to withdraw, refused to follow the agreement, and imposed the maximum sentence.  Id.  The supreme court held that the defendant had been wronged and permitted the plea to be withdrawn “to correct a manifest injustice.”  Id. at 530-31, 190 N.W.2d at 124-25.

            Here, appellant did not indicate at the plea hearing or sentencing hearing that he wanted to withdraw his plea for any reason.  In fact, appellant testified that the parties did not have an agreement, that he agreed to enter a straight plea to the judge, and that he understood that the judge was not bound by the sentencing alternatives proposed by the defense.  Based on the record, the postconviction court did not err to deny appellant’s request to withdraw his guilty plea because appellant failed to show a manifest injustice.


             Appellant argues that his sentence should be reduced because his jury trial right under Blakely v. Washington, 124 S. Ct. 2531 (2004), was violated when the district court sentenced him to an upward departure.  In Blakely,the United States Supreme Court held that an upward sentencing departure violates a defendant’s jury trial right unless the facts upon which the departure was based were admitted by the defendant or found beyond a reasonable doubt by a jury.  Blakely, 124 S. Ct. at 2537.  Appellant contends that because a jury did not find the factors used to increase his sentence nor did appellant admit them at sentencing, he is entitled to a sentence reduction to the presumptive sentence.

             Appellant’s conviction became final in 2000 when the period for a direct appeal was exhausted after his May 17, 2000 conviction.  During appellant’s period for appeal, the United States Supreme Court released Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  Appellant contends that Blakely should be applied retroactively in his collateral attack on his sentence because his conviction was still pending when the Supreme Court released Apprendi.  But this court has recently held that Blakely will not apply retroactively to collateral attacks on convictions pending or final prior to BlakelyState v. Gerald Houston, 689 N.W.2d 556, 560 (Minn. App. 2004) (holding that Blakely was a new rule but that it did not fit into the exceptions for retroactive application set forth in Teague v. Lane, 489 U. S. 288, 109 S. Ct. 1060 (1989)).

            Because appellant’s case was not pending on direct appeal when Blakely was decided, we conclude that the rule announced in Blakely does not apply to his sentence.