This opinion will be unpublished and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

C8-97-1910

Edward Joseph Boroski, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed July 7, 1998

Affirmed

Kalitowski, Judge

Roseau County District Court

File No. K394598

Mark D. Nyvold, Suite 1030, 46 E. Fourth Street, St. Paul, MN 55101 (for appellant)

Hubert H. Humphrey III, Attorney General, Natalie E. Hudson, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michelle Moren, Roseau County Attorney, 606 5th Avenue SE, Room 10, Roseau, MN 56751 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Davies, Judge.

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

KALITOWSKI, Judge

Appellant Edward Joseph Boroski contends the district court erred in denying his postconviction claim. Boroski contends he received ineffective assistance of counsel because after failing to advise him of a mandatory minimum prison sentence his trial counsel failed to inform him that he could attempt to withdraw his guilty plea prior to sentencing. We affirm.

D E C I S I O N

If there is sufficient evidence to support the postconviction court's findings, we will not reverse its decision absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

This court may dispose of an ineffective assistance of counsel claim when the appellant fails to prove there was a reasonable probability the outcome would have been different.

Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997). "An appellate court cannot judge the credibility of a witness or the weight, if any, to be given to testimony." Sigurdson v. Isanti County, 386 N.W.2d 715, 721 (Minn. 1986).

[W]hen the record contains credible evidence to support the fact findings and those findings support the trial court's conclusion, we may not reverse just because we might have found the facts differently in the first instance.

Stiff v. Associated Sewing Supply Co., 436 N.W.2d 777, 780 (Minn. 1989).

After pleading guilty, but before sentencing, Boroski learned, contrary to a statement by his trial counsel, that by pleading guilty he faced a mandatory minimum prison sentence of 36 months. The postconviction court properly concluded Boroski may have suffered prejudice because he was not informed that he could attempt to withdraw his plea before sentencing under the "fair and just" standard of Minn. R. Crim. P. 15.05, subd. 2, but instead attempted to withdraw his plea after sentencing under the stricter "manifest injustice" standard of Minn. R. Crim. P. 15.05, subd. 1. The postconviction court held an evidentiary hearing to determine whether there was a reasonable probability the outcome would have been different, which involved a determination as to whether Boroski would have attempted to withdraw his plea before sentencing if he had been advised of that option.

At the hearing Boroski claimed that if properly advised he would have attempted to withdraw his plea before sentencing. The postconviction court determined this claim lacked credibility because: (1) Boroski was faced with overwhelming evidence of his guilt; (2) Boroski had been informed by his trial counsel concerning the 10-year statutory maximum sentence; (3) when Boroski, who was represented by a different attorney than at trial, brought an appeal after sentencing, he made no attempt to have the conviction vacated; and (4) on the day that Boroski notified the court of his desire to plead guilty, the court was prepared to go forward with a jury trial.

We disagree with Boroski's contention that the district court's reasons for denying the postconviction petition are without support in the record. Further, we reject his argument that these reasons do not support the district court's conclusion that Boroski failed to demonstrate that he would have moved to withdraw his plea. In particular we note: (1) the evidence of Boroski's guilt included a confession, which had been held to be admissible at an omnibus hearing; (2) Boroski's trial counsel had informed him that the district court could exercise its discretion at sentencing; and (3) Boroski and his trial counsel agreed that trial counsel never promised Boroski that he would receive a specific sentence.

Given the support on the record for the court's findings and our limited standard of review, including our deference on the issue of Boroski's credibility, we cannot say the postconviction court abused its discretion.

Affirmed.