This opinion will be unpublished and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
Thomas Hubers, Jr., petitioner,
State of Minnesota,
Filed August 6, 1996
Rice County District Court
File No. C1941330
Deborah Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for Appellant)
Hubert H. Humphrey III, Attorney General, Susan C. Gretz, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for Respondent)
Jeffrey D. Thompson, Rice County Attorney, Rice County Courthouse, Faribault, MN 55021 (for Respondent)
Considered and decided by Short, Presiding Judge, Schumacher, Judge, and Foley, Judge.
U N P U B L I S H E D O P I N I O N
This appeal challenges the district court's denial of a motion to withdraw a guilty plea entered ten years earlier. The plea was properly entered, and a petition to withdraw a plea, ten years after its entry, is not timely. We affirm.
Appellant Thomas Hubers, Jr. was convicted of a drug offense in 1980. In 1984 he was charged with possession of a controlled substance with the intent to distribute, receiving stolen property, and theft. Hubers's private defense counsel and the prosecutor reached a plea agreement. In return for pleading guilty to possession of a controlled substance with the intent to distribute, the prosecutor agreed to drop all other charges and recommend a 40-day jail sentence.
Hubers was concerned that federal authorities would prosecute him for possession of firearms by a felon. At the prosecutor's request, the district court permitted Hubers to withdraw his plea if federal authorities prosecuted him for offenses related to his 1984 charges.
While laying the factual foundation for Hubers's plea, the prosecutor inquired about Hubers's drug suppliers and customers. Hubers claimed that the questions violated his Fifth Amendment protection against self-incrimination. The district court informed Hubers that he could invoke the privilege, but the district court could consider his cooperation or lack of cooperation in sentencing. Hubers answered all the prosecutor's questions and never invoked his privilege.
Hubers served a six-month jail term and was later discharged from probation. In 1990 federal authorities convicted Hubers on new drug charges. His federal sentence was substantially enhanced because of his two earlier state drug offense convictions. In 1994 he petitioned the district court to withdraw his 1984 plea. The petition was denied, and Hubers appeals.
D E C I S I O N
This court reviews postconviction proceedings only to determine whether there is sufficient evidence to sustain the district court's findings, and the district court's decision on a petition for postconviction relief will not be disturbed absent an abuse of discretion. Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995).
A district court may permit a withdrawal of a guilty plea "upon a timely motion * * *." Minn. R. Crim. P. 15.05, subd. 1. Hubers never appealed his sentence. He served his entire sentence and was discharged from probation. Ten years after pleading guilty, he sought to withdraw his plea. Delays in filing for postconviction relief weigh against the petitioner. Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991). Hubers did not present a timely motion for postconviction relief.
Hubers alleges that the prosecutor improperly induced his plea by unfulfillable promises to bar federal prosecution. The record indicates no promise. The court told Hubers it did not have the power to bind federal authorities. The prosecutor requested and the court permitted Hubers to enter the plea on the condition that federal authorities would not charge him with gun charges related to his 1984 offense: "if the federal authorities don't go along, and we know that prior to sentencing which we anticipate, you then have the right to withdraw your plea." Federal authorities never charged Hubers for crimes related to his 1984 offense. No promise was offered. No federal prosecutions arose. Hubers suffered no violation of his rights.
Hubers alleges that he received ineffective assistance of counsel. To prove ineffective assistance of counsel a defendant must show that the representation fell below objective standards of reasonableness and must prove that there is a reasonable probability that the results would have been different, but for the counsel's unprofessional errors. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). Hubers told the district court at the time he entered his plea that he was satisfied with his attorney's representation. Twelve years later, Hubers argues that his attorney accepted the plea agreement too quickly. The agreement dismissed two charges and bound the prosecutor to recommend a 40-day jail sentence when the mandatory minimum sentence required one year in jail. The district court noted that the plea agreement was extremely favorable to Hubers, considering his earlier drug conviction. The plea agreement does not demonstrate representation below objective standards of reasonableness.
Hubers argues that his attorney failed to directly contact the U.S. Attorney's office to determine whether federal authorities intended to prosecute Hubers. This decision had no prejudicial impact on Hubers because the federal authorities never prosecuted him and, even if they had, he could have withdrawn his plea. Electing not to draw the federal prosecutors' attention was a valid tactical choice under the circumstances.
Finally, Hubers argues that he must be resentenced because the district court would have improperly considered his silence if he had invoked his Fifth Amendment protection against self-incrimination during a combined plea and sentencing hearing. Hubers pleaded guilty and confessed his crimes. Once a defendant pleads guilty, a sentencing court may compel a defendant to explain the facts surrounding his crime without impairing Fifth Amendment protections. State ex rel. Jones v. Tahash, 276 Minn. 188, 191, 149 N.W.2d 270, 272-73 (1967). The district court must inquire about the factual basis for a guilty plea. State v. Johnson, 279 Minn. 209, 215, 156 N.W.2d 218, 223 (1968). And a district court considering a plea should determine whether a defendant "has given or offered cooperation which has resulted or may result in the successful prosecution of other offenders engaged in serious criminal conduct." Minn. R. Crim. P. 15.04, subd. 3(2)(e). The district court did not violate Hubers's constitutional protections by informing him that it could consider his silence during questioning at a combined plea and sentencing hearing.
The postconviction court did not abuse its discretion by denying Hubers's motion to withdraw his guilty plea. There is no evidence that acceptance of his plea impaired his constitutional rights. Without doubt, Hubers now regrets his 1984 plea, given the way it enhanced his later federal prison sentence, but that alone is insufficient to withdraw a plea twelve years after its entry, long after the sentence has been served, and the offender's discharge from probation.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ' 10.