This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Thomas Robert Wukawitz, Jr.,


Filed December 29, 1998


Crippen, Judge

Ramsey County District Court

File No. K398430

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

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, Suite 315, 50 Kellogg Boulevard West, St. Paul, MN 55102 (for respondent)

Sherri D. Hawley, John H. Alme, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, Ten South Fifth Street, Minneapolis, MN 55402 (for appellant)

Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Foley, Judge.[*]



On March 12, 1998, appellant Thomas Wukawitz, Jr. pleaded guilty on two counts of criminal sexual conduct in the first degree. One month later, shortly before he was to be sentenced, he moved to withdraw the plea, claiming ineffective assistance of counsel when the plea was submitted. We affirm the trial court's denial of the motion, concluding the trial court did not abuse its discretion in assessing whether appellant's criticism of his attorney demonstrated cause for withdrawal of the plea.


Appellant was charged with abuse of his stepson and his nephew between 1988 and 1992. His guilty plea was submitted on an agreement that he would be sentenced to imprisonment of 86 months on one count, twice the presumptive sentence of 43 months for each count, but that the state in turn would not press additional charges regarding conduct against either appellant's stepson or his nephew. The trial court accepted the plea and appellant later was sentenced as provided in the plea agreement.


In its discretion, the trial court may allow a defendant to withdraw a plea at any time before sentencing if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of his motion and any prejudice granting the motion would cause the prosecution by reasons of the action taken in reliance on the defendant's plea. Minn. R. Crim. P. 15.05, subd. 2.[1] As the rule itself suggests, "[t]he ultimate decision is left to the sound discretion of the trial court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion." Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

Appellant contends that withdrawal is necessary because the plea was not "knowingly and understandingly" made due to inadequate advice provided by appellant's first retained attorney. See State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983) (determining that validity of guilty plea depends on evidence it is knowingly and understandingly made--"accurate, voluntary and intelligent"). Legally defective assistance of counsel is found where counsel fails to exercise customary skills, resulting in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984) (announcing standard for determining whether conviction must be set aside based on performance of counsel); Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).[2]

Appellant recites five alleged errors of counsel. Each lacks seriousness or is poorly demonstrated and none suggests that this is "the rare case in which the appellate court can fairly conclude that the trial court abused its discretion." Kim, 434 N.W.2d at 266.

1. Statute of Limitations. Appellant argues that his first retained counsel failed

to inform him of a potential affirmative defense under the statute of limitations found in Minn. Stat. § 628.26(c) (1996). The record indicates that the offenses were reported to a relative more than three years before the prosecution began, but the three-year provision of the statute provides that the limitations period begins to run when the offenses are "reported to law enforcement." Appellant's original lawyer did not improperly fail to raise a statute of limitations argument.

2. Plea Agreement. Pointing out that the plea agreement provided for the equivalent of two presumptive sentences (43 months) running consecutively, appellant argues that the agreement had no value to him. But the state disclosed evidence of other offenses committed against the same victims, assuring the defendant that it would not prosecute other charges if the plea agreement were accepted. The state did not prosecute the other reported offenses. Appellant voluntarily signed and initialed the plea agreement, signaling his acquiescence to it. Counsel was not ineffective in assisting appellant with this agreement.

3. Significance of the 86-month sentence. Appellant argues that he did not understand the "significance of the potential increased penalty" on the first of the two counts, evidently implying that he did not know the sentence on that count would constitute a doubling of the guidelines sentence on the count. But appellant faced two counts with separate victims, and he disclosed his express consent that one count be "increased from 46 to 83 months," initialing the increase in his own handwriting. Appellant has failed to demonstrate that he was not informed when he consented to the sentence.

4. Advice on rights. Appellant argues that his attorney performed ineffectively in advising him to make a statement and plead guilty without furnishing adequate advice on his right to silence. This claim is neither detailed nor substantial. Appellant has not attempted to describe what advice was given to him, and the plea agreement and statements specifically acknowledge appellant's understanding of his right to enjoy a trial and elect against testifying.

5. Appellant's incarceration pending sentencing. Appellant argues that he "fully expected" to be released between the date of his plea and the subsequent sentencing hearing. There is no indication in the record that appellant was informed he would be released pending sentencing, and the record does not establish, as appellant now concludes, that he would have entered a not guilty plea if he had been informed that he would be imprisoned immediately. Appellant has shown no authority for the suggestion that he was entitled to be warned of immediate imprisonment by counsel or by the court. There is nothing in the record to sustain appellant's additional argument on appeal that continued release before sentencing was an implied part of the plea agreement.

We conclude the trial court adequately considered the reasons advanced by appellant and did not abuse its discretion in denying withdrawal of appellant's plea.


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

[1] Before or after sentencing, the plea can be withdrawn if this is "necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. Appellant confines his arguments to the "fair and just" provision of subdivision 2 of the rule.

[2] We are not asked to determine whether appellant's first retained counsel was ineffective, but rather whether the trial court abused its discretion in determining whether appellant's first retained counsel effectively advised him prior to appellant's statement of a guilty plea.