This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed October 31, 2006
Washington County District Court
File No. K3-00-4785
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Doug Johnson, Washington County Attorney, Robert J. Molstad, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082-0006 (for respondent)
Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)
Considered and decided by Dietzen, Presiding Judge; Willis, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s denial of his motion to withdraw his guilty plea. Appellant argues that the district court abused its discretion by denying his motion because (1) the state violated the plea agreement when appellant, after being sent to New Mexico in accordance with the agreement, was transferred back to the Minnesota prison system; (2) his attorney made an unqualified promise that appellant would never be returned to Minnesota; and (3) his attorney provided ineffective assistance of counsel. We affirm.
Appellant Israel Ray Gaitan, Jr.
appeals from the district court’s denial of his motion to withdraw his plea of
guilty to aiding and abetting second-degree murder. The facts and procedural history of this case
are not disputed. In August 2000, Gaitan
was charged by indictment with the first-degree murder of a fellow inmate at
the Minnesota Correctional Facility-Stillwater.
Gaitan pleaded guilty under a plea agreement with the state that
contained the following provisions: (1) Gaitan
offered an Alford plea of guilty to aiding and abetting second-degree
unintentional murder, and he agreed to a sentence of 169 months that would run
concurrently with the sentence he was then serving; (2) certain items of
Gaitan’s personal property that were taken during the investigation and search
of his cell would be returned to him; (3) all fines and fees would be waived;
(4) Gaitan would be transferred to a state correctional facility in New
Mexico, Wyoming, or Montana within 45 days after the date of the plea hearing;
(5) “the state would play no part now or in the future seeking [Gaitan’s]
return to the State of Minnesota”; and (6) “should one or more of the
elements of the agreement not be met, [Gaitan] reserves the right to withdraw
his plea and proceed to trial.” Gaitan
was transferred to a
district court’s denial of a motion to withdraw a guilty plea is reviewed for
an abuse of discretion. Barragan v. State, 583 N.W.2d 571, 572 (
a guilty plea is entered, a criminal defendant has no absolute right to
withdraw that plea.
argues that his guilty plea was involuntary because “it was induced by a
promise the state failed to honor.” When
a guilty plea is induced by a government promise, such a promise must be
fulfilled or due process is violated. State
v. Wukawitz, 662 N.W.2d 517, 522 (
district court found that Gaitan’s plea agreement included the condition that
the state of
The state asserts that Gaitan cannot
“contest that the State abided by the literal language of the plea agreement”
and that Gaitan “incorrectly recasts the plain language of the agreement.” The attorney who prosecuted Gaitan submitted
an affidavit acknowledging that “[l]eaving the State of
The plea agreement reflects no
promise by the state that Gaitan would never be returned to
Gaitan next argues, for the first
time on appeal, that “even if the court did not err in finding that the state
was not directly responsible for Gaitan’s return to
that are not raised before the district court generally will not be considered
on appeal. Roby v. State, 547 N.W.2d 354, 357 (
Finally, Gaitan argues that he should be allowed to withdraw his guilty plea because his attorney’s representation was ineffective. Gaitan argues that it was unreasonable for his lawyer to make him a promise that “caused him to plead guilty but not ensure that the promise would be kept.” Gaitan also argues that there is a reasonable possibility that but for his attorney’s ineffectiveness, he would have rejected the plea bargain.
defendant’s guilty plea is rendered involuntary by the ineffective assistance
of counsel. State v. Ecker, 524 N.W.2d 712, 718 (
To prove ineffective assistance of counsel, Gaitan must show that (1) his attorney’s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that but for his attorney’s errors, the outcome of the proceedings would have been different. See Alanis, 583 N.W.2d at 577 (articulating the test in Strickland v. Washington, 466 U.S. 668 (1984)).
the district court concluded that (1) under the plea agreement, the state would
not seek Gaitan’s return to
state argues that Gaitan’s attorney had no obligation to inform Gaitan of the
possibility that he could be transferred back to
Gaitan does not argue merely that his attorney failed to warn him of a possible
consequence of his guilty plea. Rather,
Gaitan argues that his attorney misinformed him that he would not be returned
 We note that whether Gaitan’s attorney made an
unqualified promise to Gaitan is a question of fact, which the district court
did not have an opportunity to determine.
And appellate courts do not find facts on appeal. In re
Welfare of M.D.O., 462 N.W.2d 370, 374–75 (
 The district court stated in the memorandum incorporated into its order denying Gaitan’s motion to withdraw his guilty plea that “[i]n her letter memorandum . . . Plaintiff’s attorney makes the curious argument that her representation of [Gaitan] was inadequate and that her failure to state on the record that ‘under no circumstances’ would Mr. Gaitan be returned to Minnesota, subjects him to a manifest injustice.” As we have noted above, whether Gaitan’s attorney made an unqualified promise that was unfulfilled was not before the district court, and there is no finding on the issue. But we also note that Gaitan testified at his plea hearing that he was made no promises other than those made in open court and reflected in the plea agreement.