This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Warren Patrick Banks, Jr.,


Filed December 30, 1997


Harten, Judge

Hennepin County District Court

File No. 96021109

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant State Public Defendant, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Harten, Judge, and Willis, Judge.



Appellant Warren Banks challenges the district court's denial of his motion to withdraw his guilty plea. We affirm.


In June 1996, Banks pleaded guilty to the charge of felon in possession of a pistol in violation of Minn. Stat. § 624.713, subds. 1(b), 2 (1996). Banks signed and submitted a written plea petition to the district court. The plea petition stated, among other things, that Banks' anticipated stayed sentence would involve unsupervised probation and that "if the court [did] not approve this agreement [Banks had] an absolute right to then withdraw [his] plea of guilty and have a trial." The prosecutor stated the terms of the parties' plea negotiation on the record, but did not include unsupervised probation as part of the agreement. The prosecutor explained:

Mr. Banks had made some query through his attorney about being on unsupervised probation; we've talked about that and I think the Court would probably address that.

Banks indicated that he agreed with the arrangement as stated by the prosecutor.

In July 1996, Banks was sentenced. The district court stayed execution of a 17-month sentence and specified several conditions of supervised probation. Banks interjected that he had been under the impression that the probation would be unsupervised. Although the district court acknowledged that Banks' plea petition had proposed unsupervised probation, the district court replied that unsupervised probation was not feasible, at least initially. The district court stated a compromise alternative, whereby the stay of execution would involve supervised probation only until Banks had satisfied certain conditions, and then it would be converted to unsupervised probation. Banks accepted that alternative.

Banks later violated his probation, and in February 1997, an order for arrest, detention, and hearing was filed. In March 1997, Banks filed a motion to withdraw his guilty plea. A combined probation revocation and motion hearing was held. Banks argued that the district court had rejected the plea agreement by sentencing him to supervised probation, and therefore he had a right to withdraw his guilty plea. He also argued that the district court had an affirmative duty to inform him at sentencing of his right to withdraw the plea. The district court found that unsupervised probation was not part of an agreement between Banks and the prosecutor, but rather, merely a point of inquiry that Banks would raise at sentencing. The district court denied Banks' motion to withdraw his plea, finding that it was untimely and that there was no manifest injustice. This appeal followed.


There is no absolute right to withdraw a guilty plea after it is entered. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). A district court has broad discretion in deciding whether to grant a defendant's motion to withdraw a guilty plea, and we will not reverse a district court's denial of such motion absent a clear abuse of discretion. Id. A district court "shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1.

The motion to withdraw the plea must be timely. Id. Banks claims that his motion was timely because he did not have any reason to seek plea withdrawal before eight months elapsed. But he knew from the time of his sentencing that the district court had imposed supervised probation. In fact, he accepted supervised probation at the sentencing hearing and shortly thereafter became aware of the probationary terms. Banks understood that supervised probation differed from that described in the plea petition and was aware of his right to withdraw the plea.[1] Banks had the choice of withdrawing his plea then; instead, he accepted the court's alternative resolution and said nothing about supervised probation until eight months later when he faced probation revocation. Under the circumstances, the district court did not abuse its discretion in finding that the plea withdrawal motion was untimely.

Appellant also argues that withdrawal of the plea is necessary to correct a manifest injustice. If an unqualified promise is made regarding the sentence and that promise is not fulfilled, the defendant should be allowed to withdraw his guilty plea. State v. Kunshier, 410 N.W.2d 377, 379 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987). And where the court is aware of the plea agreement before sentencing and declines to give it effect, a manifest injustice occurs. State v. Loyd, 291 Minn. 528, 531, 190 N.W.2d 123, 125 (1971).

Banks argues that the district court rejected the plea agreement by imposing supervised probation. This argument is negated by Banks' statements and the statements of the prosecutor at the guilty plea hearing. The prosecutor did not include unsupervised probation as a negotiated term, and Banks did not indicate that he disagreed with the prosecutor's statement of the agreement. The district court correctly found that no agreement had been reached on unsupervised probation. The district court expressed an alternative resolution, to-wit, that Banks be placed on supervised probation initially, but only until he satisfied certain conditions. Banks accepted that alternative and said so.

Appellant urges that failure of the district court to inform appellant, in accordance with Minn. R. Crim. P. 15.04, subd. 3(1), that the rejection of the plea agreement entitled appellant to withdraw his guilty plea itself creates a manifest injustice. We disagree. As applied here, the rule is not dispositive. There was no plea agreement with the prosecutor for unsupervised probation. Moreover, appellant agreed with the district court alternative and so stated on the record. We conclude that plea withdrawal is not necessary to correct a manifest injustice.

The district court did not abuse its discretion when it denied Banks' motion to withdraw his guilty plea.


[1] Paragraph 20 b. of the plea petition set forth Banks' understanding that if the district court did not accept the terms of the agreement, Banks could withdraw his plea.