This opinion will be unpublished and

may not be cited except as provided by

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




Florencio Mendoza Barragan, petitioner,



State of Minnesota,


Filed December 2, 1997


Thoreen, Judge

Ottertail County District Court

File No. K8-96-891

Richard D. Varriano, 200 Fifth Street South, Suite 106, Moorhead, MN 56560; and Richard E. Edinger, Richard Edinger Law Office, 200 Fifth Street South, Suite 103, Moorhead, MN 56560 (for appellant)

Hubert H. Humphrey, III, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and Waldemar B. Senyk, Ottertail County Attorney, Ottertail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Thoreen, Judge.



Appellant challenges the district court's denial of his motion to withdraw his guilty plea on the grounds of manifest injustice. We reverse.


In May 1996, appellant Florencio Mendoza Barragan was charged with controlled substance crime in the fifth-degree in violation of Minn. Stat. § 152.025, subds. 1(1) and 3 (1996). Barragan's public defender, David Phillipe, and the prosecutor, David Hauser, entered into plea negotiations. Barragan told Phillipe he was hesitant about pleading guilty, because he is a resident alien and was concerned about the possibility of deportation. Phillipe stated that he did not know the policy on deportation and would consult with Hauser.

Phillipe and Hauser discussed the deportation consequences in connection with a guilty plea. Hauser indicated that deportation was no problem in this case and was highly unlikely. We assume that Hauser did not know that in fact it was the current practice of the INS to deport in this type of case. Phillipe informed Barragan of Hauser's statements and, relying thereon, in July 1996, Barragan pleaded guilty. With the assistance of an interpreter, Barragan admitted that he was involved in the delivery of marijuana and was aware that it would be sold. He testified that he had not received any money and had participated in the delivery as a favor to a friend. He also testified that he was aware deportation was a possibility, and that no one knew if he would be deported.

In September 1996, Barragan was sentenced according to a plea agreement. The imposition of the felony sentence was stayed and Barragan was placed on probation for up to five years. The probation terms included 45 days in jail and a $1,000 fine.

In October 1996, the United States Department of Justice served Barragan with an order to show cause and notice of hearing in deportation proceedings. The order was based on Barragan's criminal conviction.

In December 1996, Barragan retained attorney Richard Varriano. Barragan filed a motion to withdraw his guilty plea on the ground of manifest injustice. Barragan contended that the prosecutor's statements led him to believe he would not be deported. He argued the statements constituted an inducement to plead guilty and were part of the plea agreement.

The district court denied the motion. The court relied on Schwerm v. State, 288 Minn. 488, 181 N.W.2d 867 (1970), and ruled that the prosecutor's statements were merely a collateral event and not a promise or essential element of the plea agreement. The court found Barragan was aware of the unpredictability of deportation, and therefore, withdrawal of the guilty plea was not necessary to correct a manifest injustice.


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 a reviewing court will not reverse a district court's denial of such a 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.

1. Timing

The state argues that Barragan's motion is untimely. Motions to withdraw guilty pleas brought as soon as eight months after the guilty plea and two months after sentencing have been held untimely. State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984); see also State v. Weisberg, 473 N.W.2d 381, 383 (Minn. App. 1991) (17 months after sentencing was untimely), review denied (Minn. Oct. 11, 1991); State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986) (11 months after sentencing was untimely), review denied (Minn. Feb. 14, 1986); Doughman v. State, 351 N.W.2d 671, 675 (Minn. App. 1984) (22 month delay after plea raised question of legitimacy of motion to withdraw plea), review denied (Minn. Oct. 16, 1984). In State v. Vieburg, 404 N.W.2d 312 (Minn. App. 1987), the court decided the timing issue based on the circumstances of the particular case and held that the motion, made seven months after the guilty plea, was timely. Id. at 314. Here, Barragan moved to withdraw his guilty plea just five months after his plea and three months after sentencing. The delay did not prejudice the state, and the time period between the plea and the motion is shorter than in Andren and other cases where the motion was held to be untimely. Under the circumstances of this case, the motion was made in a timely fashion.

2. Manifest Injustice

We have listed three factors to consider:

The first is the strength of the defendant's reason for withdrawing the plea, including whether the defendant asserts his innocence of the charge. * * * The second is the possible existence of prejudice to the government's case as a result of the defendant's untimely request to stand trial. * * * Finally, the trial court must consider whether the defendant's misunderstanding of the collateral consequences of the plea is the result of misleading statements by governmental authorities or the defendant's own ignorance.

Lopez, 379 N.W.2d at 637 (quoting United States v. Russell, 686 F.2d 35, 39 (D.C. Cir. 1982)). Under this test, we find that the district court abused its discretion when it denied Barragan's motion to withdraw his plea.

First, Barragan has a strong reason for withdrawing the plea. He has lived in the United States for many years, has a family here, and now faces deportation to Mexico. We do not find it critical that Barragan has not asserted innocence, because "[t]he defendant may move to withdraw a plea of guilty without an assertion of not guilty of the charge to which the plea was entered." Minn. R. Crim. P. 15.05, subd. 3. This rule became effective in 1990, after Lopez was decided. Moreover, though Barragan did not claim innocence at the guilty plea hearing, the factual basis was not entirely convincing. He was a minor participant in the drug transaction, and he testified that he was involved only as a favor to a friend and would not have received any money.

With respect to the second factor, the district court ruled that the state would not be prejudiced by a trial, and the state does not argue that it would be prejudiced.

The third factor asks if Barragan was misled by governmental authorities or by his own ignorance. In Lopez, the defendant asserted that his own attorney should have informed him of the deportation consequences of pleading guilty. Lopez, 379 N.W.2d at 637. The court denied his motion to withdraw his guilty plea. Id. at 638. In contrast, Barragan's misunderstanding about the likelihood of deportation primarily resulted from the statements of the prosecutor. In addition, Barragan specifically asked the defense attorney about deportation, and his attorney never looked into it; he merely relayed an unreliable answer from the prosecutor. A simple phone call to the INS could have answered Barragan's questions but neither attorney took such action. Unlike Lopez, Barragan actively sought information on the likelihood of deportation and relied on the answer.

In Russell, the prosecutor misstated the laws of deportation, and the defendant pleaded guilty based on the misinformation. Russell, 686 F.2d at 41. The court allowed the defendant to withdraw his guilty plea. Id. at 42. Similarly, the prosecutor in this case predicted the consequences of a guilty plea without accurate knowledge. Barragan pleaded guilty in reliance on those misstatements.

The district court found that the prosecutor's statements constituted a collateral event rather than an unqualified promise. We disagree. The prosecutor told Barragan not to worry about deportation in this case, and Barragan relied on that statement. The statements were not collateral to the guilty plea, but were central to Barragan's decision. The district court abused its discretion when it did not allow Barragan to withdraw his plea, and we hold that withdrawal is necessary to correct a manifest injustice.


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