This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2465

 

State of Minnesota,

Respondent,

 

vs.

 

Brent James Kolander,

Appellant.

 

Filed October 4, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Nobles County District Court

File No. K5-03-700

 

 

 

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

 

Gordon Moore, III, Nobles County Attorney, Prairie Justice Center, 1530 Airport Road, P.O. Box 337, Worthington, MN 56187 (for respondent)

 

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

 

 

††††††††††† Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

 

 

U N P U B L I S H E D†† O P I N I O N

GORDON W. SHUMAKER, Judge

Appellant contends that the district court abused its discretion in denying his motion to withdraw his plea of guilty on the ground that the state violated the plea agreement.† Because appellant waived the violation, has failed to show manifest injustice, and has failed to show any prejudice from the violation, we affirm.

FACTS

The state charged Brent Kolander with the felony of ineligible person in possession of a firearm and several misdemeanors and petty misdemeanors.† Kolander agreed to plead guilty to the felony in return for the dismissal of all other charges, certain jail credit, concurrent sentences, and the prosecutorís agreement to remain silent at sentencing as Kolander argued for a departure from the mandatory minimum 60-month executed sentence.

At the sentencing hearing, a different prosecutor appeared and argued against a departure from the mandatory sentence.† Kolanderís attorney did not object, did not call the courtís attention to the prosecutorís prior agreement to remain silent, and did not move to withdraw Kolanderís plea. Rather, the attorney argued that Kolander played a passive role in the crime that mitigated the severity of the offense.

The facts established at the taking of the plea revealed that the police stopped Kolander while he was driving a pickup truck.† The record does not show whether this was Kolanderís truck.† There was a firearm in the front seat area of the truck.† The plea transcript contains no description of the firearm except that it was a gun in a brown case.† Kolander testified that the gun belonged to someone else and that it was lying in the truck among hats, gloves, and brown coveralls.† He contended that he did not know the gun was there, and that he did not look over into that area of the truck but rather just looked straight ahead as he drove.

Despite his contention that he did not know the gun was in the car, Kolander acknowledged that he was ineligible to possess a firearm and that the evidence that would be offered against him would be sufficient to support a conviction.† That evidence included the statement by a deputy sheriff who assisted with the stop of the truck that he looked into the cab of the truck from the driverís side and saw in plain sight a partially unzipped gun case containing a shotgun.

Without expressly addressing the departure motion, the district court imposed and executed the mandatory minimum sentence of 60 months.

About a month later, Kolander moved to withdraw his plea because the state failed to honor its promise to remain silent at the sentencing hearing.† His attorney argued that his representation was deficient because he failed to object to the prosecutorís sentencing argument and that it would be a manifest injustice for the court to deny the motion.† The attorney also contended that he was ineffective in not presenting sufficient facts to justify a downward departure.† Finally, counsel contended that Kolanderís only benefit from pleading guilty was the silence of the prosecutor on the departure issue and that benefit was negated when the prosecutor violated his promise to remain silent.

The district court denied Kolanderís motion, ruling that there was no manifest injustice because the plea was accurate, voluntary, and intelligent.† The court also held that, by failing to object to the prosecutorís argument against the departure motion, Kolander waived any objection to the violation of the plea agreement.† Finally, the court ruled that the violation did not result in prejudice to Kolander because the court would have imposed the 60-month sentence based on the presentence investigation, the corrections agentís recommendation, and defense counselís argument.† The court did not cite the prosecutorís argument as being a factor in its denial of the motion.† Kolander appealed.

D E C I S I O N

A reviewing court will reverse the district courtís determination of whether to permit the withdrawal of a plea of guilty only if the district court abused its discretion.† Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).† Here, the district court gave three bases for denying Kolanderís motion: (1) There was no manifest injustice by allowing the plea to stand; (2) Kolander waived the violation by failing to object; and (3) Kolander was not prejudiced by the violation.

1.†††††††† Manifest Injustice

††††††††††† ďThe court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.Ē† Minn. R. Crim. P. 15.05, subd. 1.† Manifest injustice results when a defendantís plea is not entered accurately, voluntarily, and intelligently.† Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).† It is clear from the record of Kolanderís plea that he fully understood that the law provided for a mandatory minimum sentence of 60 months imprisonment.† Although he knew that the court could depart from that sentence, nothing was promised or intimated that the court would do so.† When he entered his plea, Kolander knew he was facing a 60-month sentence, although his attorney would argue for a departure.† Any expectation of a departure at that point was purely speculative.† Furthermore, Kolander told the court that his plea was not the product of threat or coercion.† Kolander has failed to show that his plea was inaccurate or involuntarily or entered unintelligently.

2.†††††††† Waiver

††††††††††† When the prosecutor began to argue at the sentencing, Kolanderís attorney did not object.† When the court asked Kolander if he had anything to say, he did not point out the prosecutorís violation of the plea agreement.† In State v. Witte, 308 Minn. 214, 215, 245 N.W.2d 438, 439 (1976), the supreme court noted that there can be a waiver of a violation of a plea agreement, stating, ď[i]n the absence of any explanation, it seems unjust for defendant and his counsel to sit idly by without objection and, after finding out what the sentence is, to then cry foul.Ē† Id.

††††††††††† There was no explanation given by defense counsel for his failure to object.† Rather, he merely noted that his assistance was ineffective.† It is probable that the court in Witte intended by the wording ď[i]n the absence of any explanation,Ē an explanation that might justify or excuse the failure to object.† As in Witte, counsel here sat ďidly byĒ and cried foul too late.

††††††††††† Waiver is also supported by State v. Ferraro, 403 N.W.2d 845 (Minn. App. 1987), on which the district court relied.† There the state agreed to remain silent on all sentencing issues other than restitution.† Id.at 846.† The state violated the agreement by opposing the defendantís departure motion and by moving for an upward departure or a vacation of the plea.† Id.at 847.† But defense counsel did not object or move to vacate the plea because of that violation.† Id.at 848.† The court held that the defendant waived objection to the violation.† Id.

3.†††††††† Absence of Prejudice

††††††††††† In Ferraro, this court held that the defendant waived his objection to the plea agreement violation and that he was not prejudiced by the violation.† Id.† The court pointed out that the defendant ďfailed to present any compelling reason for a downward departure from the presumptive sentence.Ē† Id.

††††††††††† The district court is required to impose a presumptive sentence unless there exist substantial and compelling circumstances for a departure.† Minn. Sent. Guidelines II.D.† The only basis offered for a departure from Kolanderís sentence was the contention that he played a passive role in the crime.† But mere passive possession of a firearm by an ineligible person is nevertheless clearly violative of the law and is sufficient justification for the presumptive sentence for that crime.† There was an encased shotgun in the front seat area of the truck that Kolander was driving.† His knowing possession may be inferred from the nature of the firearm as a readily visible long gun, its placement in the front cab area, and its plain view, as noted by one of the deputies.† Although Kolanderís possession was passive in the sense that he was not using the shotgun in any way, the definition of this †crime does not distinguish between active and passive possession.

††††††††††† Irrespective of the arguments of the prosecutor and the defense attorney, there† was no proper basis upon which the district court could have departed from the required sentence.† Thus, although we do not condone the violation of the plea agreement, we hold that Kolander has failed to show any prejudice as a result of the violation.

4.†††††††† Other Issues

††††††††††† a. ††††††† Ineffective Assistance of Counsel

††††††††††† In a footnote in his brief on appeal, Kolander notes that his attorneyís failure to object to the plea agreement violation constituted ineffective assistance of counsel.† Kolander argues that the only reason he pleaded guilty was to obtain the stateís agreement to remain silent at the sentencing.† That argument appears disingenuous because the plea agreement also required the dismissal of charges of controlled substance crime in the 5th degree, transportation of firearms, driving after revocation of driverís license, possession of drug paraphernalia, and possession of a small amount of marijuana; credit for jail time served from a particular date; and a sentence concurrent with a sentence Kolander was serving at the time of the plea.† Thus, he did receive benefits from the plea of guilty despite the violation.

††††††††††† Furthermore, to establish ineffective of counsel Kolander is required to show that, but for his attorneyís error, the outcome would have been different.† State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)).† He argues that, but for his attorneyís failure to object, he would not have pleaded guilty.† His argument does not follow.† Had his attorney objected, the state would have remained silent on the departure issue, and the sentencing would have proceeded.† However, that would not have assured a departure, and the record shows that the court still would not have departed because there was no substantial and compelling reason to justify a departure.

††††††††††† b.†††††††† Due Process

††††††††††† For the first time on appeal, Kolander contends that the courtís denial of his motion resulted in the denial of due process of law.† He did not make that argument in the district court.† Generally, this court will not consider matters not argued and considered below.† Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).† Considering this record, there is no persuasive reason to deviate from this guideline.

††††††††††† Affirmed.