This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Brent James Kolander,
Filed October 4, 2005
Gordon W. Shumaker, Judge
Nobles County District Court
File No. K5-03-700
Attorney General, 1800
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.
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
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 (
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 (
††††††††††† 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
††††††††††† 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
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.†
††††††††††† The district court is required to
impose a presumptive sentence unless there exist substantial and compelling
circumstances for a departure.†
††††††††††† 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 (
††††††††††† 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 (