This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Antonio B. Brown,



Filed September 6, 2005

Klaphake, Judge


Ramsey County District Court

File No. K7-03-4318


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


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


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


            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from his conviction of and sentence for second-degree assault, appellant Antonio B. Brown argues that the district court erred in refusing to allow him to withdraw his guilty plea.  He insists that he did not receive the sentence promised him in the plea agreement and that the district court failed to conduct a hearing to determine whether he violated the conditions of his release pending sentencing.

            Because appellant never requested specific performance of the plea agreement and failed to request a hearing to determine whether he violated the conditions of his pre-sentencing release, he has waived the right to raise these issues on appeal.  We therefore affirm.


            Appellant claims for the first time on appeal that he is entitled to withdraw his guilty plea because he did not receive his bargained-for sentence of probationary jail time.  He also claims that he was denied his right to a hearing on the allegations that he violated the conditions of his release pending sentencing.  Prior to sentencing, appellant moved to withdraw his plea based on his claims that his attorney was ineffective and that she induced him to plead guilty; the district court rejected appellant’s claims and denied his motion to withdraw his plea.  Following the submission of a presentence investigation report recommending that appellant receive the presumptive sentence of 51 months, appellant moved for a downward dispositional departure based on mitigating factors that included claims that the victim was the aggressor and that appellant was amenable to probation.  The district court again rejected appellant’s arguments, denied his motion to depart downwardly, and imposed the presumptive sentence.  On appeal from his sentence, appellant now claims that his plea should be withdrawn because he did not receive the bargained-for sentence.

            An appellate court is not required to consider issues not presented to the district court and raised for the first time on appeal.  State v. Benniefield, 678 N.W.2d 42, 45 (Minn. 2004).  We may, however, choose to address issues raised for the first time on appeal when the interests of justice so require.  Id.

            The interests of justice do not require us to consider appellant’s challenges for the first time on appeal.  Appellant has raised successive challenges to his plea and sentence and has had multiple opportunities to argue that he did not receive the sentence he was promised.  Moreover, the state likely would be prejudiced by allowing withdrawal of appellant’s plea at this point:  a significant amount of time has passed since the November 2003 incident, and the state’s case against appellant may be hampered because the victim appears to support appellant and may now refuse to cooperate.  We therefore decline to consider appellant’s current challenges for the first time on appeal.[1]

            Appellant’s conviction and sentence are affirmed.


[1] We further note that appellant’s decision to move for a downward dispositional departure strongly suggests that probationary jail time was not part of the plea agreement and was merely a recommendation for sentencing.  State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988).  Moreover, appellant’s claim that he should have received a hearing on the violation of his conditions for release became moot upon sentencing.