This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)




State of Minnesota,



Leon Tart,


Filed October 6, 1998


Lansing, Judge

Olmsted County District Court

File No. K3971559

Hubert H. Humphrey III, Attorney General, James P. Spencer, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Raymond F. Schmitz, Olmsted County Attorney, Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Thoreen, Judge.*



A criminal defendant challenges the district court's denial of his motion to withdraw his guilty plea following sentencing. Because the district court did not abuse its discretion in denying the motion, we affirm.


Leon Tart was charged in Winona County District Court with two counts of second degree burglary in violation of Minn. Stat. § 609.582, subd. 2(a). He was subsequently charged in Olmsted County with a single count of second degree burglary in violation of Minn. Stat. § 609.582, subd. 2(a).

Tart appeared in Olmsted County District Court for a combined plea hearing and pleaded guilty to the Olmsted County charge and to one of the Winona County charges. The other Winona County charge was dismissed. Before Tart entered his plea, his attorney acknowledged that Tart's criminal history score would result in a presumptive commitment under Minnesota sentencing guidelines, but requested that the court consider an alternative sentence that would place Tart in Damascus Way, a re-entry program. The court agreed to place Tart in the program pending sentencing and stated that it would consider Tart's progress in determining his sentence.

At sentencing, Tart moved for a dispositional departure. The state opposed Tart's motion, arguing that the record did not support a finding of substantial and compelling mitigating circumstances. After reviewing submitted reports, the court denied Tart's motion and sentenced him to concurrent executed prison terms of 38 and 43 months, plus restitution. Tart moved to withdraw his guilty plea. The court denied his motion but indicated that further consideration was possible if Tart filed supporting affidavits. Tart did not file further affidavits but proceeded with this appeal from the judgment of conviction.


The two bases for withdrawal of a guilty plea are set forth in Minn. R. Crim. P. 15.05, subd. 1 and 2. Under subdivision 1, a defendant has a right to withdraw his guilty plea at any time before or after sentence, upon timely motion, if the defendant establishes that withdrawal is necessary to correct a manifest injustice. State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991). "Manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent." Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). Under subdivision 2, a defendant may be allowed to withdraw his guilty plea, subject to the court's discretion, if the defendant has not been sentenced and it is "fair and just" to do so. Kaiser, 469 N.W.2d at 319. A criminal defendant does not have an absolute right to withdraw a guilty plea once entered. Perkins, 559 N.W.2d at 685. The ultimate decision is left to the discretion of the district court and will be reversed only when the appellate court can conclude the district abused its discretion. See id. (manifest injustice standard); Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989) (fair and just standard).


Tart first argues the district court's refusal to grant his motion to withdraw his guilty plea constitutes reversible error under Minn. R. Crim. P. 15.05, subd. 1. Tart contends his plea was induced by the court's implied promise to place him on probation if his presentence placement was successful. After reviewing the record, we believe Tart has failed to show manifest injustice under Minn. R. Crim. P. 15.05, subd. 1.

First, the record shows that Tart's plea was accurate, knowing, and intelligent. At the plea hearing, Tart's attorney told the court he anticipated that Tart would enter a plea in both cases, explained the terms of the alternative sentencing plan, and acknowledged there was "no commitment from either the County or the State." (Emphasis added.) Moreover, after finding Tart competent to proceed, but before taking his guilty plea, the court carefully explained the agreement:

The agreement, then, basically is a plea of guilty, ah, both in the Olmsted County file and the Winona County file with some expectation that the Court would look at the Damascus Way with no promises but looking at the report of what Damascus Way has to say about Mr. Tart. Is that correct?

(Emphasis added.) Tart's attorney replied, "Correct, your Honor." The court questioned Tart to make sure he understood the charges, the possible sentences, and his right to plead not guilty and go to trial. Before accepting Tart's plea, the court also made sure that Tart understood the terms of the agreement, emphasizing that it had sole responsibility for determining the final sentence:

And I'll look seriously at that program, but do you understand there's no promise that you would remain in that program if they accept you. Do you understand that? Do you understand that? That it's up to the Court to make the decision where you should be placed for sentencing?

(Emphasis added.) Tart replied, "Yes, ma'am."

Second, we reject Tart's assertion that the court made an implied promise to send Tart to Damascus Way based on his "success" in the program. The court told Tart it would consider placement at Damascus Way based on his progress during his presentence placement. And that is exactly what happened. The evidence submitted at the sentencing hearing indicates that Tart was not especially successful at Damascus Way. The court accurately characterized his progress report as "not particularly strong" and "one of the weaker reports I've ever seen about progress or lack of progress." We find no merit in the additional charge that the PSI report misrepresented the nature of the program to the court. The court had past experience with Damascus Way, reviewed a program description, and allowed Tart's attorney to describe its merits on the record.

Third, in denying Tart's motion to withdraw his guilty plea, the court explained that sentencing could be further considered if Tart submitted supporting affidavits. Tart did not submit additional information. Accordingly, we conclude that Tart failed to provide adequate factual support for his withdrawal claim.


In the alternative, Tart argues he should have been allowed to withdraw his guilty plea under the "fair and just" standard. Under Minn. R. Crim. P. 15.05 subd. 2, a defendant may withdraw a guilty plea under the "fair and just" standard only before sentencing. Because Tart moved to withdraw his plea after the court imposed sentence, this alternative argument has no merit.


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