This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1231

 

 

State of Minnesota,

Respondent,

 

vs.

 

Daniel Sturgeon,

Appellant.

 

Filed May 30, 2006

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 04078642

 

Mike Hatch, Attorney General, 1800 Bremer 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)

 

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

 

            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            On appeal from his conviction of felon-in-possession-of-a-firearm, Daniel Sturgeon argues that the district court abused its discretion in denying his presentencing motion to withdraw his guilty plea.  Because the district court did not abuse its discretion in concluding that appellant’s guilty plea was knowing and intelligent, we affirm.

D E C I S I O N

            A criminal defendant has no absolute right to withdraw a plea of guilty.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  A district court has broad discretion in deciding whether to grant a defendant’s motion to withdraw a guilty plea, and a reviewing court will not reverse a district court’s denial of such a motion absent a clear abuse of discretion.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

            A court may allow a defendant to withdraw his guilty plea before sentencing if it is “fair and just” to do so, taking into consideration whether granting the motion would prejudice the prosecution.  Minn. R. Crim. P. 15.05, subd. 2. The showing required to withdraw a plea before sentencing is less than that required to withdraw a plea after sentencing to correct a “manifest injustice.”  State v. Williams, 373 N.W.2d 851, 853 (Minn. App. 1985) (comparing “fair and just” to “manifest injustice” showing required under Minn. R. Crim. P. 15.05, subd. 1).  A defendant has the burden of proving that a plea withdrawal is fair and just.  Kim, 434 N.W.2d at 266.

            Here, the parties reached an agreement on the charges of prohibited-person-in-possession-of-a-firearm and felony receipt of stolen firearms.  Appellant pleaded guilty to the firearm-possession charge with a presumptive sentence of 60 months.  If, prior to the sentencing hearing, 12-14 guns were recovered from a November 2004 burglary, the felony receiving-stolen-firearms charge would be dismissed and appellant would be sentenced to a reduced sentence of 48 months.  If the guns were not recovered, the plea agreement called for a 60-month sentence.  At the time of the sentencing hearing, appellant was only able to recover ten guns, and therefore the district court sentenced appellant to 60 months.

            Appellant argues that his guilty plea was not knowing and intelligent because he believed the recovery of 12-14 guns included the three guns that were in his possession at the time of his arrest.  The facts do not support appellant’s claim that he thought recovery of 9 or 11 would satisfy the contingency.  The terms of appellant’s plea agreement were based on the November burglary, in which a total of 17 guns were taken.  Because three were found in appellant’s possession and had already been “recovered” at the time of appellant’s arrest, 14 were still at large.  The plea agreement gave appellant some leeway, requiring that 12-14 had to be turned in for appellant to receive the 48-month sentence. 

            Appellant argues further that statements made by his attorney at the sentencing hearing support his position that his guilty plea was not knowing and intelligent.  But the district court did not find appellant and his attorney’s statements to be credible.  See State v. Lopez 379 N.W.2d 633, 638 (Minn. App. 1986) (stating that district court is in best position to determine witness credibility), review denied (Minn. Feb. 14, 1986). Therefore, there is nothing in the record to show that the district court abused its discretion in denying appellant’s motion to withdraw his presentence guilty plea.

            Affirmed.