This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Charles F. Kealy,




Filed November 7, 2006


Lansing, Judge



Chisago County District Court

File No. 13-K9-03-002014



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


Katherine Johnson, Chisago County Attorney, Thomas D. Wedes, Assistant County Attorney, Chisago County Government Center, 313 North Main Street, Room 373, Center City, MN 55012 (for respondent)


John Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            The district court denied Charles Kealy’s presentence motion to withdraw his guilty plea.  On appeal, Kealy disputes the district court’s determination that he did not present a fair and just basis for withdrawal.  The district court did not abuse its discretion in denying Kealy’s motion, and we affirm.


            Charles Kealy was charged with aiding and abetting simple robbery for stealing, in November 2003, an eighty-six-year-old woman’s purse.  Kealy’s case was continued throughout 2004 to allow him to complete surgery unrelated to the robbery charge.  In January 2005, Kealy and the state negotiated an agreement under which Kealy would enter a guilty plea and the state would recommend a sentence capped at thirty-two months.  This sentence amounted to a twenty-four-month reduction from the fifty-six-month sentence that Kealy anticipated receiving under the sentencing guidelines.

            At the January 2005 plea hearing, Kealy entered an Alford plea.  Although he denied committing the robbery, he acknowledged the strength of the evidence identifying him as the robber and told the court that he believed that his lengthy criminal history, if admitted into evidence, would lead to his conviction.  Kealy also stated that he was knowingly waiving his trial rights and that he had lengthy conversations with his attorney before deciding to enter the plea.  The district court deferred accepting Kealy’s plea until completion of the presentence investigation. 

            After reviewing the presentence-investigation report, the district court told Kealy that the plea agreement was not acceptable.  At the March 2005 sentencing hearing, Kealy and the state agreed to increase the sentence cap to forty-six months.  In exchange, the state agreed to a three-month sentencing continuance to allow Kealy to complete additional surgery and to appear in court in another county for sentencing on an unrelated charge.  Kealy stated on the record that he understood that, if the district court rejected the original plea agreement, he could withdraw his guilty plea but that he was freely and voluntarily choosing to allow the plea to stand as modified by the renegotiated sentence cap.  He testified that he had not been coerced or forced to accept the plea revision.  The district court accepted the modified plea agreement and rescheduled the sentencing hearing for June.

            At the June hearing, Kealy submitted a motion to withdraw his guilty plea.  He reasserted his innocence and indicated that he no longer believed that the Spreigl evidence would be as damaging as he had previously believed and that he wanted to have a jury trial.  The district court denied Kealy’s motion and sentenced him to forty-six months in prison.  Kealy now appeals the district court’s denial of his plea-withdrawal motion.


            A defendant who enters a valid guilty plea does not have an absolute right to withdraw it.  Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).  But a district court may allow plea withdrawal if, on due consideration of the reasons advanced for the withdrawal and any prejudice to the state, the court determines that withdrawal of the plea is fair and just.  Minn. R. Crim. P. 15.05, subd. 2.  This determination is committed to the sound discretion of the district court and rarely will be reversed.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  If the district court concludes that withdrawal is not fair and just, we review that determination under an abuse-of-discretion standard.  Id. at 267.

            The fair and just standard precludes a defendant from withdrawing a guilty plea “for any reason or without good reason at any time before” sentencing.  Id. at 266.  Permitting a lesser standard would turn the plea-taking process into “a means of continuing the trial to some indefinite date in the future when the defendant might see fit to come in and make a motion to withdraw his plea.”  Id. (quotation omitted).  When applying the fair and just standard, “the [district] court is to give due consideration not just to the reasons advanced by the defendant but to any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.”  Id. (quotation omitted). 

            At his plea-withdrawal hearing, Kealy argued that he should be permitted to withdraw his plea because he had entered an Alford plea and always maintained his innocence; he misunderstood his previous attorney’s advice on Spreigl evidence when he agreed to plead guilty; and the state would not be prejudiced.  The district court found that Kealy had knowingly waived his trial rights and that the state would be prejudiced by withdrawal of his plea.  Based on those findings the district court determined that Kealy had not presented a fair and just basis for withdrawal and denied his motion. 

            On appeal, Kealy does not renew the Spreigl argument that he made at the plea-withdrawal hearing, but challenges what he considers to be the three reasons for the district court’s denial of his motion:  the validity of his jury-trial waiver, the prejudice to the state from withdrawal, and the district court’s statement that he was “playing the system.”

            We first consider Kealy’s argument that the waiver of his trial rights was insufficient and, therefore, invalid.  Kealy waived his trial rights at the January 2005 plea hearing, but he contends that the validity of this waiver was negated by two events that occurred at the March 2005 sentencing hearing.  The first purported invalidation was the district court’s failure to advise him in open court that he was entitled to withdraw his plea because the January 2005 plea had been rejected.  The second purported invalidation is based on Kealy’s claim that the district court withheld a continuance unless he agreed to enter a plea.  The record does not provide factual support for either of Kealy’s claims. 

            Rule 15.04 of the Minnesota Rules of Criminal Procedure requires that the district court reject a previously submitted plea agreement in open court and allow the defendant an opportunity to withdraw the plea.  But the procedure in this case did not violate the rule because Kealy and the state renegotiated the plea.  Kealy affirmed the renegotiated plea in open court, and the record conclusively demonstrates that he was well aware of his right to withdraw his earlier guilty plea. 

            Kealy’s second claim, that later events negated the validity of his original guilty plea, rests on his contention that the court put him in a position where he had to bargain for a continuance to undergo scheduled surgery.  The record fails to provide factual support for this claim.  At the March 2005 hearing, Kealy testified that he was modifying his plea freely, voluntarily, without coercion, after consultation with his attorney, and with the knowledge that he had other options.  Kealy’s January 2005 waiver remained valid.

            Kealy’s next challenge to the denial of his motion is the district court’s assessment of prejudice to the state.  We note that prejudice to the prosecution must be balanced against the defendant’s reasons for withdrawal.  Minn. R. Crim. P. 15.05, subd. 2.  The state bears the burden of proving that it will be prejudiced by withdrawal of a guilty plea.  State v. Wukawitz, 662 N.W.2d 517, 527 (Minn. 2003).  Assertions of prejudice based on incomplete investigation will not satisfy the burden of demonstrating prejudice. Hoagland v. State, 518 N.W.2d 531, 536-537 (Minn. 1994). 

            In responding to Kealy’s motion to dismiss, the state argued that its main witness, the then eighty-seven-year-old victim, would be susceptible to memory loss because of her age.  The state also claimed that it had lost contact with some of the other witnesses.  The state did not, however, present concrete evidence of either the elderly witness’s memory loss or its inability to locate the other witnesses.  Nonetheless, the district court could reasonably take into account that an average eighty-seven year old might likely have a diminished recollection of an event that occurred almost two years earlier and that a trial, which the court noted would have to be scheduled several months in the future, might be affected by the victim’s physical availability.  Consequently, the district court could properly conclude that the state would be prejudiced by a plea withdrawal.

            Finally, we turn to Kealy’s objection to the district court’s comment that Kealy was attempting to “play” the system.  In the course of denying Kealy’s motion, the district court used this phrase to describe part of the history of the continuances.  A fair reading of the transcript indicates that the comment was not an explanation of the court’s reason for denying the plea-withdrawal motion but an expression of the court’s frustration in confronting a fifth request for a continuance on a case that had been charged eighteen months earlier.  Because the comment did not form a basis for the district court’s ruling, we do not analyze its accuracy.  See State v. Bryant, 378 N.W.2d 108, 109 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986) (directing appellate analysis to facts and circumstances that form basis for decision).

            To overturn the district court’s denial of his motion to withdraw his guilty plea, Kealy is required to show that the denial was an abuse of discretion.  On this record, Kealy has not demonstrated that the district court abused its discretion by declining to allow him to withdraw his plea.