This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1005

C6-96-1006

State of Minnesota,

Respondent,

vs.

Steven Paul Fjerstad,

Appellant.

Filed January 21, 1997

Affirmed in part and reversed in part

Foley, Judge

[*]

Polk County District Court

File No. K8-95-133

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Wayne S. Swanson, Polk County Attorney, Scott A. Buhler, Assistant Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for Respondent)

Kevin T. Duffy, 1008 West Second Street, P.O. Box 715, Thief River Falls, MN 56701 (for Appellant)

Considered and decided by Klaphake, 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

FOLEY, Judge

In this consolidated appeal, Steven Paul Fjerstad challenges the trial court's denials of his motions to withdraw guilty pleas in two different cases. We affirm in part and reverse in part.

FACTS

This consolidated appeal arises out of two separate guilty pleas (one presentencing and one postconviction) that resulted from charges against appellant in four different criminal files.

Presentencing Motion to Withdraw

On January 17, 1996, appellant Stephen Paul Fjerstad entered an Alford plea[1] to the charges of third degree assault and attempt to coerce. As a result of the plea agreement, the remainder of the charges in one case and all the charges in another case were dismissed. On February 27, 1996, Fjerstad moved to withdraw these guilty pleas. The trial court denied Fjerstad's motion on March 5, 1996 and sentenced him to 32 months executed on the third degree assault charge (the presumptive guidelines sentence) and 12 months (concurrent) on the attempt to coerce charge.

Postconviction Motion to Withdraw

On August 2, 1995, Fjerstad pleaded guilty to one count of possession of a firearm without a serial number (a misdemeanor) and one count of felon in possession of a firearm (a felony). He was sentenced on September 18, 1995. The trial court stayed execution of the 15-month prison sentence and placed Fjerstad on supervised probation for five years for the felony charge, and sentenced him to 90 days' confinement for the misdemeanor charge. On March 15, 1996, Fjerstad moved to withdraw his guilty plea on the firearms possession charges. He also moved to be resentenced in the other cases. On March 28, 1996, the trial court denied the motions to withdraw the guilty plea and to resentence.

Fjerstad appealed the denial of both motions to withdraw his guilty pleas. This court consolidated the cases for briefing and decision.

D E C I S I O N

I. Presentencing Motion to Withdraw

Fjerstad makes three arguments regarding withdrawal of these guilty pleas: (1) he did not admit he was guilty; (2) because his criminal history score was higher than all the parties assumed it was, the presumptive sentence was longer than he anticipated when he pleaded guilty; and (3) the state will not be prejudiced by the withdrawal of the guilty pleas.

No Admission of Guilt

Fjerstad notes that in his affidavit to withdraw his guilty pleas, he stated that "he never admitted any guilt or wrongdoing concerning the attempt to coerce charge or the assault charge," and that he explained the circumstances behind both charges.

The state correctly notes that because a defendant does not admit guilt in an Alford plea, a later assertion that one did not admit guilt is not a valid reason for withdrawing such a plea. See State v. Ecker, 524 N.W.2d 712, 716-17 (Minn. 1994) (affirming trial court's refusal to allow first-degree murder defendant to withdraw Alford plea on ground that he failed to acknowledge intent to kill). If such an argument were allowed, then every defendant who entered an Alford plea could withdraw that plea later because in every case he would be able to assert that he had not admitted guilt. See id. at 716 (with Alford plea, "a defendant may plead guilty to an offense, even though the defendant maintains his or her innocence").

Criminal History Score

Fjerstad notes that all assumed that his criminal history score was four and that the presumptive sentence based on that score would be 25 months. He argues that because his criminal history score was higher than four, and the presumptive sentence was 32 months, not 25 months as he assumed it would be when he pleaded guilty, he should be able to withdraw his plea.

In State v. DeZeler, 427 N.W.2d 231, 234-35 (Minn. 1988), the supreme court held that the trial court should have allowed the defendant to withdraw his plea "on the ground of mutual mistake." The court reasoned:

In this case there was a mutual mistake as to what defendant's criminal history score was. The agreement to plead guilty was based entirely on the assumption that the presumptive sentence was a stayed sentence. Because of this mistaken assumption and because of the fact that there were no grounds for an upward departure from the presumptive sentence, the parties mistakenly believed that the only real issue left for the trial court was the length of probationary jail time that defendant had to serve. Once the mutual mistake was discovered, the trial court, in fairness, should have allowed defendant to withdraw his plea.

Id. at 235.

The state argues that DeZeler is distinguishable because the mutual mistake of fact in that case made a difference between a stayed sentence and an executed sentence, whereas in this case, the mistake made a difference of seven months of an executed sentence. However, the court in DeZeler did not base its holding on the stayed/executed distinction. In fact, the court stated that State v. Benson, 330 N.W.2d 879 (Minn. 1983), was "controlling." DeZeler, 427 N.W.2d at 235. In that case, according to the court in DeZeler,

the parties made a mistake as to the defendant's criminal history score, with the result that defendant agreed to plead guilty believing that the presumptive sentence was a 32-month, not a 41-month, sentence. We held that the trial court erred in departing downward by imposing the 32-month sentence, but we added that "[t]he fact that defendant mistakenly misunderstood that the presumptive sentence was 32 months * * * would be a ground for letting him withdraw the guilty plea and stand trial on the original charges."

427 N.W.2d at 235 (quoting Benson at 880). In Benson, the presumptive sentence was nine months longer (or 28.1% longer) than the parties had assumed. In this case, the presumptive sentence was seven months longer (or 28% longer) than the parties had assumed. Expressed as a percentage, the mistake in Benson was of almost exactly the same magnitude as the mistake in this case. Thus, based on DeZeler and Benson, we conclude that the trial court should have granted Fjerstad's presentencing motion to withdraw his guilty plea.

Prejudice

Because we determine that Fjerstad should have been allowed to withdraw his plea under DeZeler and Benson, we do not reach the prejudice issue.

II. Postconviction Motion to Withdraw

Fjerstad argues that he should have been allowed to withdraw his guilty plea to the gun possession charges because he had not been convicted of any felonies after August 1, 1994 (the effective date of the statute), and thus there was no reason to issue the search warrant (as a result of which the deputies found the guns).

Fjerstad pleaded guilty to the firearms charges on August 2, 1995 and was sentenced on September 18, 1995. He moved to withdraw his guilty plea on March 15, 1996, over seven months later. The trial court denied his motion on March 28, 1996. As a threshold matter, the state claims that Fjerstad's motion to withdraw his guilty plea was untimely. We agree. See Minn. R. Crim. P. 15.05, subd. 1 (trial court is to allow defendant to withdraw guilty plea "upon a timely motion" and proof that withdrawal is necessary to correct manifest injustice); State v. Andren, 358 N.W.2d 428 (Minn. App. 1984) (motion to withdraw eight months after plea, and three months after sentencing, was untimely). We note that in this case, Fjerstad's motion to withdraw his guilty plea came seven months after his plea and six months after sentencing. Thus, we conclude that the motion to withdraw was untimely.

Affirmed in part and reversed in part.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970).