This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed August 27, 1996
Hennepin County District Court
File No. 77900496
Mark D. Nyvold, 386 N. Wabasha, Suite 654, St. Paul, MN 55102 (for Appellant)
Hubert Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St.MN 55101 (for Respondent)
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)
Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
This appeal is from an order denying appellant Daniel Ford's postconviction petition to withdraw his 1977 guilty plea to burglary. Ford argues that he was entitled to an evidentiary hearing on this postconviction petition. We affirm.
Appellant Daniel Ford pleaded guilty in February 1977 to residential burglary, a violation of Minn. Stat. §subd. 2(3) (1974). He admitted breaking the window of the residence and entering with intent to steal. Under the plea agreement, Ford was granted a stay of imposition of sentence. The stay and its associated probation were later revoked, and he was sentenced to zero to three years in prison.
Ford filed a postconviction petition in January 1994, seeking to withdraw his then 17-year-old guilty plea. He claimed his attorney in 1977 made a number of misstatements or omissions that induced him to plead guilty and persuaded him to keep some facts from the court. The court denied the postconviction petition without an evidentiary hearing.
D E C I S I O N
Ford argues that he is entitled to an evidentiary hearing on his petition to withdraw his 1977 guilty plea. The supreme court has held that a postconviction petitioner is not entitled to an evidentiary hearing unless alleging facts that, if proven, would entitle the petitioner to the requested relief. State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995). Ford has not alleged facts raising sufficiently serious questions about the voluntariness or intelligence of his guilty plea that he should be allowed to withdraw the plea, given the extreme prejudice to the state in reconstructing the 1977 prosecution.
In deciding whether to allow withdrawal of a guilty plea, the trial court must consider the possible prejudice to the state even when the motion to withdraw the plea is made before sentencing. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). Here, with a 1976 offense, it is questionable that the state could even locate the necessary witnesses, or elicit from them any recollection of the relevant events. For example, the prosecution stated at the postconviction scheduling hearing that it had destroyed its file on the case.
Delay in asserting a postconviction claim is only one factor to be considered in determining whether to grant the petition. See Bailey v. State, 414 N.W.2d 503, 507 (Minn. App. 1987) (nine-year delay did not prevent consideration of postconviction claims), review denied (Minn. Dec. 22, 1987). But inexcusable delay in pursuing a postconviction claim may constitute an abuse of the judicial process. McMaster v. State, ___ N.W.2d ___ (Minn. July 3, 1996). And Ford has not given any excuse for waiting 17 years to challenge his 1977 conviction.
Generally, a defendant is entitled to a hearing on allegations bearing on the validity of his guilty plea. Krominga v. State, 311 N.W.2d 858, 859-60 (Minn. 1981). But Krominga involved a guilty plea less than two years old. Id. To have this case reopened--a case that would be nearly impossible for the prosecution to retry--Ford needed to allege error of a greater magnitude than his claims of attorney misinformation, or provide some support for his contention that his attorney coerced the guilty plea. Cf. State v. Kaiser, 469 N.W.2d 316, 318-19 (Minn. 1991) (defendant entitled to hearing on claim that attorney coerced guilty plea, which attorney admitted by affidavit).
We note, too, that Ford's claim that his counsel told him he would receive a five-year sentence if convicted following trial is negated by the guilty plea transcript.