This opinion will be unpublished and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

A05-1243

 

State of Minnesota,
Respondent,

vs.

DíRonne Clyde Parker,
Appellant.

 

Filed May 16, 2006

Affirmed

Wright, Judge

 

Ramsey County District Court

File No. K8-04-1924

 

 

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

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, Ramsey County Government Center, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN† 55102-1657 (for respondent)

 

 

††††††††††† Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

 

U N P U B L I S H E D† O P I N I O N

 

WRIGHT, Judge

††††††††††††††††††††††††††††

Appellant challenges the district courtís denial of his motion to withdraw his guilty plea, arguing that he was pressured into pleading guilty and the state could not demonstrate prejudice.† We affirm.

FACTS

 

Appellant DíRonne Parker was arrested and charged with two counts of first-degree criminal sexual conduct, a violation of Minn. Stat. ß 609.342, subd. 1(b), (g) (2002).† Both charges arose from an incident on March 30, 2004, when Parker sexually penetrated his 13-year-old daughter while she was sleeping. ††

At a guilty-plea hearing before the district court, Parker pleaded guilty, pursuant to a plea agreement, to one count of first-degree criminal sexual conduct involving the sexual penetration of a person less than 16 years of age with whom he had a significant relationship.† Minn. Stat. ß 609.342, subd. 1(g).† In exchange for Parkerís guilty plea, the prosecution dismissed the other count of criminal sexual conduct.† According to the plea agreement, Parker would receive a 144-month stayed sentence and serve one year in the workhouse if the district court found that such a disposition was in the best interests of the family.† The plea agreement also required Parker to undergo a sex-offender evaluation and to have no contact with the victim.† †

At the start of the sentencing hearing, Parker moved to withdraw his guilty plea.† Parker argued that he did not believe he was guilty of the crime and that he was pressured into pleading guilty.† The district court denied Parkerís motion and imposed an executed sentence of 144 monthsí imprisonment.† The district court found that Parker had several opportunities to declare his innocence at the guilty-plea hearing and noted that Parker had breached the plea agreement by having contact with the victim and refusing to cooperate with the presentence investigation.† This appeal followed.†

D E C I S I O N

 

Parker contends that the district court abused its discretion by denying his motion to withdraw his guilty plea.† A defendant does not have an absolute right to withdraw a guilty plea once it has been entered.† Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).† We will reverse the district courtís decision to deny withdrawal of a guilty plea only if the district court abused its discretion.† Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).† ††

Parker seeks to withdraw his guilty plea under the ďfair and justĒ standard of rule 15.05, which provides:

In its discretion the court may also allow the defendant to withdraw a plea at any time before sentence if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendantís plea.

Minn. R. Crim. P. 15.05, subd. 2.† Although a district court is encouraged to be lenient in allowing withdrawal of a guilty plea before sentencing,† State v. Williams, 373 N.W.2d 851, 853 (Minn. App. 1985), the ultimate decision is left to the sound discretion of the district court.† State v. Kaiser, 469 N.W.2d 316, 320 (Minn. 1991).

First, Parker asserts that he is entitled to withdraw his guilty plea because he is innocent of the charges and was pressured into pleading guilty by his attorney.† This argument is unsupported by both the law and the record.† An assertion of innocence alone after a guilty plea is not a sufficient reason for finding that the district court abused its discretion in refusing to allow a plea withdrawal.† Williams, 373 N.W.2d at 853.†

At the guilty-plea hearing, Parkerís guilty plea was reviewed three times.† First, Parkerís attorney examined Parker using his guilty-plea petition.† During that examination, Parker stated that he was guilty of the charged offense and asked the judge to accept his plea of guilty.† Next, the state conducted an examination of the factual basis for the guilty plea to establish each element of the crime.† During the colloquy, Parker admitted that he sexually penetrated his 13-year-old daughter while she was sleeping and again admitted that he was guilty of the offense.† Finally, the district court questioned Parker, and Parker stated that he was guilty as charged and that he did not challenge the facts as presented by the prosecution.

Parker alleges that his attorney threatened him with the removal of his children from their motherís home by child protection services in order to coerce his guilty plea.†† But Parker points to no evidence in the record that supports this contention.† Moreover, at the guilty-plea hearing, Parker specifically testified that no one forced him to plead guilty.†

Further, the record establishes that the state demonstrated that it would suffer prejudice if the plea were withdrawn.† In opposing the plea-withdrawal motion, the state offered evidence that the young victim had entered counseling and was starting to recover from the sexual abuse.† Parker contends that the state must claim more than some ďvague, global harmĒ for a showing of prejudice.† Consideration of prejudice to the prosecution, however, does not impose an affirmative burden on the prosecution to establish prejudice.† Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).† Arguably the degree of prejudice to the state would be only moderate if Parker were allowed to withdraw his plea.† But because (1) the state established some evidence of prejudice, (2) the record does not support Parkerís claim that he was pressured to plead guilty, and (3) Parkerís claim of innocence is insufficient to meet the fair-and-just standard, the district court did not abuse its discretion by denying Parkerís motion to withdraw his guilty plea.

††††††††††† Finally, Parker argues for the first time on appeal that the district court failed to honor his absolute right to withdraw his guilty plea as guaranteed in the plea agreement. †The plea agreement provided that Parker would have an absolute right to withdraw his guilty plea and proceed to trial if the district court did not approve the agreement.† Parker maintains that this provision entitled him to withdraw his guilty plea when the district court disregarded the plea agreement and imposed an executed prison sentence.

††††††††††† This argument is unavailing.† The district court accepted the plea agreement subject to the conditions of the agreement, which included no contact with the victim and cooperation with the presentence investigation.† Parker failed to abide by those conditions.† The district court did not reject the sentence contemplated by the plea agreement and impose an executed prison sentence until after it found Parker in violation of the conditions of the plea agreement.† As such, Parker is not entitled to withdraw his guilty plea based on the terms of the plea agreement.

††††††††††† Affirmed.