This opinion will be unpublished and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

C7-96-1404

Vincent E. Fields, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed March 11, 1997

Affirmed

Short, Judge

Hennepin County District Court

File No. 92092399

Vincent E. Fields, F.C.I. Greenville, P.O. Box 5000, Greenville, IL 62246 (pro se appellant)

Hubert H. Humphrey, III, Attorney General, 102 State Capitol, St. Paul, MN 55155 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

Vincent E. Fields pleaded guilty to third-degree possession of a controlled substance in violation of Minn. Stat. § 152.023, subd. 2(1) (1996). On appeal from a denial of postconviction relief, Fields argues he is entitled to withdraw his plea because there was an insufficient factual basis and he made the plea without knowledge of its consequences. We affirm.

D E C I S I O N

In reviewing the order of a postconviction court, our function is to determine whether the record sustains the findings and whether the decision constitutes an abuse of discretion. Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995). In postconviction proceedings, the defendant bears the burden of establishing the facts by a preponderance of the evidence. Minn. Stat. § 590.04, subd. 3 (1996); Saliterman v. State, 443 N.W.2d 841, 843 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989).

A criminal defendant has no absolute right to withdraw a guilty plea once it is entered. State v. Knight, 292 Minn. 419, 423, 192 N.W.2d 829, 832 (1971). Because of public policy favoring the finality of judgments, courts

are not disposed to encourage accused persons to 'play games' with the courts * * * by setting aside judgments of conviction based upon pleas made with deliberation and accepted by the court with caution.

Chapman v. State, 282 Minn. 13, 16, 162 N.W.2d 698, 700 (1968) (quoting Everett v. United States, 336 F.2d 979, 984 (D.C. Cir. 1964)). However, after sentencing, withdrawal of a plea will be allowed upon a timely motion when the defendant proves withdrawal is necessary to correct a manifest injustice. Minn. R. Crim. P. 15.05, subd. 1; State v. Weisberg, 473 N.W.2d 381, 383 (Minn. App. 1991), review denied (Minn. Oct. 11, 1991).

Fields argues the postconviction court erred by refusing to set aside his guilty plea, which lacked sufficient factual basis and was made without knowledge of the consequences. We disagree. The record demonstrates: (1) Fields was found in possession of a controlled substance during the execution of a search warrant; (2) the state charged Fields with a second-degree controlled substance crime, which carried a presumptive prison sentence; (3) Fields's public defender negotiated a plea bargain whereby Fields pleaded guilty to a third-degree controlled substance crime, which carried a presumptive probationary sentence; (4) Fields read and signed each page of a guilty plea petition; (5) the sentencing court accepted the guilty plea and sentenced Fields to five years probation on certain conditions, including Fields's completion of a 90-day stay at the Hennepin County Adult Correctional Facility; and (6) Fields did not appeal his conviction directly, but petitioned for postconviction relief over two years later, when the conviction was used to enhance a federal criminal sentence.

Fields's two-year delay in seeking to withdraw his guilty plea weighs against his petition for postconviction relief. See Jones v. State, 288 Minn. 527, 529, 179 N.W.2d 315, 317 (1970) (permitting consideration of defendant's delay in seeking relief, noting defendant should have realized earlier that he had pleaded guilty to wrong charge); see, e.g., State v. Searles, 274 Minn. 199, 200, 142 N.W.2d 748, 749 (1966) (affirming denial of postconviction relief, noting three years had elapsed since conviction). The timing of Fields's petition for postconviction relief is likely attributable to the use of this conviction to enhance a federal sentence. See, e.g., Weisberg, 473 N.W.2d at 383 (affirming denial of postconviction relief where defendant waited to challenge validity of plea until state moved to revoke probation 17 months after conviction). As a practical matter, the withdrawal of Fields's plea after this two-year delay would bar reprosecution due to passage of time. See Chapman, 282 Minn. at 16-17, 162 N.W.2d at 700-701 (requiring the "strongest of reasons" to withdraw plea after conviction where effect would be to seriously prejudice state and warning against use of guilty plea as tactical device to frustrate prosecution); cf. Wensman v. State, 342 N.W.2d 150, 151 (Minn. 1984) (permitting withdrawal of plea after two-year delay where delay did not cause prejudice).

Moreover, permitting the withdrawal of Fields's guilty plea is not necessary to correct a manifest injustice. See Weisberg, 473 N.W.2d at 383 (refusing to allow withdrawal of plea, even on timely motion, if no manifest injustice exists). While a guilty plea must be set aside if based on an unqualified promise which is thereafter dishonored, it should not be set aside "merely because the accused has not achieved an unwarranted hope." Schwerm v. State, 288 Minn. 488, 491, 181 N.W.2d 867, 868 (1971). Fields bargained for and received a probationary sentence. He remained silent when the prosecutor stated on the record that the precise terms of the probationary sentence would be left to the court's discretion. Fields's disappointment at receiving less favorable conditions of probation than expected is not grounds for withdrawing his guilty plea. See id. at 489-90, 181 N.W.2d at 868 (denying postconviction relief where defendant pleaded guilty, believing he would receive seven-year sentence, but in fact received 20-year sentence); State v. Robinson, 388 N.W.2d 43, 45 (Minn. App. 1986) (refusing to permit defendant, who unexpectedly received aggravated sentence, to withdraw plea), review denied (Minn. July 31, 1986). In addition, Fields was represented by counsel, who questioned him extensively, on the record, regarding the rights he waived by pleading guilty, the charges against him, and the factual basis for his plea. See State v. Milton, 295 N.W.2d 94, 95 (Minn. 1980) (acknowledging that trial court's failure to personally question defendant did not invalidate factual basis for guilty plea). Under these circumstances, the trial court did not err in denying Fields postconviction relief.

Affirmed.