This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Billy Rae Wiley, petitioner,


State of Minnesota,

Filed February 9, 1999
Reversed and remanded
Peterson, Judge
Dissenting, Schumacher, Judge

Hennepin County District Court
File No. 97052236

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from the postconviction court's denial of his motion to withdraw his guilty plea, appellant argues that because he pleaded guilty without being informed about a mandatory fine of $10,500, his guilty plea was not voluntary. We reverse and remand.


Appellant Billy Ray Wiley was arrested and charged with aggravated robbery in violation of Minn. Stat. §§ 609.245, subd. 1, 609.11 (1996). He entered into a plea agreement, which stated that the court would have discretion to impose a sentence between 56 and 72 months. The plea agreement also stated that the statutory maximum penalty for aggravated robbery was 0-20 years and/or a fine of $35,000, but made no mention that Wiley would be required to pay a mandatory minimum fine.

The district court sentenced Wiley to an executed sentence of 65 months, a mandatory fine of $10,500, and restitution of $230. At the sentencing hearing, defense counsel did not object to the fine or move to have the fine reduced.

In a postconviction proceeding, Wiley requested that the fine be waived or reduced to $50, or alternatively, that he be allowed to withdraw his guilty plea. Wiley submitted an affidavit stating that his attorney never informed him that a fine would, or could, be a part of his sentence. Wiley's attorney stated in an affidavit that he never informed Wiley of the possibility that he would be ordered to pay a fine in excess of $10,000. Wiley's attorney also stated that he did not object to the fine at the sentencing hearing because he "was so surprised that a fine was imposed."

The postconviction court denied Wiley's motion to reduce the fine and his alternative motion to withdraw his guilty plea.


In reviewing a postconviction proceeding, we ask only whether there is sufficient evidence to sustain the postconviction court's findings. Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995). Absent an abuse of discretion, a postconviction court's decision will not be disturbed. Id.

In Blondheim v. State, 573 N.W.2d 368, 368 (Minn. 1998), the defendant's attorney negotiated a plea agreement, which called for the defendant to plead guilty to one count of criminal sexual conduct. The parties agreed that the maximum sentencing departure would be 20 months over the 58-month presumptive term, but the agreement did not address an applicable mandatory minimum fine. Id. At the sentencing hearing, the defendant's attorney never claimed that the trial court was barred from imposing a fine, but counsel did state that the agreement did not address a mandatory fine and asked the court to waive a substantial part of the mandatory fine. Id.

In a postconviction proceeding, the court denied defendant's motion to withdraw his guilty plea and this court reversed, concluding that the trial court should have allowed defendant to withdraw his guilty plea because the plea agreement did not contemplate a fine. Blondheim v. State, No. C7-97-974, 1997 WL 759831, at *1 (Minn. App. Dec. 9, 1997), rev'd, 573 N.W.2d 368 (Minn. 1998). The supreme court reversed this court's reversal of the trial court, concluding that

[i]f a fine was somehow counter to the plea agreement, then defense counsel or defendant should have, and presumably would have, objected at that time. By entering an agreement that did not speak to the matter of a mandatory minimum fine and by not actually objecting to the imposition of a fine at the time of sentencing, defendant is deemed to have waived his right to complain about it.

Blondheim, 573 N.W.2d at 368-69.

Relying on the supreme court's opinion in Blondheim, the postconviction court denied Wiley's motion to reduce his fine, concluding that Wiley waived his right to complain about the fine and that the court had no authority to reduce the fine.

But Blondheim does not address an ineffective assistance of counsel claim. There is no indication that the attorney in Blondheim failed to inform the defendant about the mandatory minimum sentence before the defendant pleaded guilty. In addition to asking the postconviction court to reduce his fine, Wiley asserted that his guilty plea was not voluntary due to ineffective assistance of counsel. The postconviction court concluded that Wiley's motion to withdraw his guilty plea due to ineffective assistance of counsel was without merit and denied the motion.

In denying Wiley's motion to withdraw his guilty plea, the postconviction court concluded that Wiley's attorney fully represented Wiley's interests and that if his failure to object to the fine imposed was an error, it was harmless. But Wiley's ineffective assistance of counsel claim is not simply that his attorney failed to object to the fine imposed. Wiley contends that his counsel was ineffective because he failed to inform Wiley prior to his guilty plea that a mandatory minimum fine would be imposed.

When an accused is represented by counsel, "the voluntariness of the plea depends on whether counsel's advice `was within the range of competence demanded of attorneys in criminal cases.'" Appellate courts must apply a two-part standard to claims of ineffective assistance of counsel arising out of the plea process. The defendant must first show "counsel's performance was deficient." To meet this standard, "defendant must show that counsel's representation fell below an objective standard of reasonableness. Additionally, "the defendant must show that [counsel's] deficient performance prejudiced the defense." A defendant establishes prejudice by showing "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Minnesota has adopted this two-part test.

State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (alteration in original).

"Once a guilty plea has been entered, there is no absolute right to withdraw it." Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). A district court has 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 an abuse of discretion. State v. Aviles-Alvarez, 561 N.W.2d 523, 525 (Minn. App. 1997), review denied (Minn. June 11, 1997).

Wiley argues that his guilty plea did not satisfy the constitutional requirements of voluntariness because he pleaded guilty without being told that he was subject to a mandatory fine. Wiley contends that his plea cannot be voluntary when he was not fully aware of the consequences of the plea.

To be valid, a guilty plea must be accurate, voluntary, and intelligent. Ecker, 524 N.W.2d at 716. A criminal defendant is entitled to be informed of the direct consequences of a guilty plea. Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998). Direct consequences are those which flow definitely, immediately, and automatically from the guilty plea, namely, the maximum sentence to be imposed and the amount of any fine to be imposed. Id

In its comments regarding the reasonableness of the representation Wiley received, the postconviction court addressed only the attorney's performance at the omnibus hearing, during jury selection, and at the sentencing hearing; it did not address events that Wiley and his attorney claimed occurred during plea negotiations.

The record indicates that even though a mandatory minimum fine applied to the offense to which Wiley pleaded guilty, Wiley's attorney did not inform him about the mandatory fine before Wiley pleaded guilty. Thus, we conclude that the evidence is not sufficient to sustain the postconviction court's finding that Wiley's attorney's representation did not fall below an objective standard of reasonableness. Also, Wiley stated in his affidavit that he had personal debts and no assets, and that he would not have pleaded guilty had he known that a fine of over $10,000 would be imposed against him. Thus, we conclude that Wiley has shown that there is a reasonable probability that but for the unprofessional errors of his counsel, he would not have pleaded guilty.

We reverse and remand to permit Wiley to withdraw his guilty plea.

Reversed and remanded.

SCHUMACHER, Judge (dissenting)

I respectfully dissent. Wiley knew from the plea agreement of the possibility of a fine up to $35,000. This, coupled with the fact that his attorney did not object to the fine at the time of sentencing, leads me to conclude that Blondheim v. State, 573 N.W.2d 368 (Minn. 1998), is controlling here. The supreme court in Blondheim cited defense silence at sentencing when a fine was imposed as a strong indication that the fine was not "counter to the plea agreement." Id. at 368. The same silence occurred here.

A defendant claiming his attorney was ineffective in representing him at a guilty plea hearing must show a reasonable probability that, but for the attorney's errors, he would not have pleaded guilty. Berg v. State, 557 N.W.2d 593, 596 (Minn. App. 1996). I do not believe Wiley's testimony is sufficient by itself to sustain that burden. Defense counsel's silence when the $10,500 fine was imposed is a strong indication, under Blondheim, that a fine was not unexpected.

The conclusion that the fine was not material to the plea agreement is supported by the supreme court's history of not requiring that plea agreements resolve issues of fines and restitution and by the need for some finality to guilty pleas. See, e.g., Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989); State v. Srey, 400 N.W.2d 722 (Minn. 1987). I would affirm the trial court.