This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-99-1372

 

State of Minnesota,

Respondent,

 

vs.

 

Brian Leslie Dziubak,

Appellant.

 

Filed March 21, 2000

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. K8982643

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, Ramsey County Government Center-West, 50 West Kellogg Blvd., Suite 315, St. Paul, MN  55102 (for respondent)

 

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

 

            Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Brian Leslie Dziubak challenges the district court’s denial of his motion to withdraw his guilty plea.  We affirm.

D E C I S I O N

            The ultimate decision to allow a defendant to withdraw a guilty plea before sentencing 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).

            A court may allow a defendant to withdraw a guilty plea before sentencing if it is fair and just, after considering defendant’s offered reasons for the withdrawal as well as “any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.”  Minn. R. Crim. P. 15.05, subd. 2.   The “fair and just” standard does not entail an absolute right to withdraw a guilty plea before sentencing, and the court must guard against a standard that “would undermine the integrity of the plea-taking process.”  Kim, 434 N.W.2d at 266 (citation omitted).  The defendant bears the burden of proving that the reason for withdrawing the plea is fair and just.  Id.

            Appellant pleaded guilty as charged under Minn. Stat. § 152.021 (1998) (first-degree violation of controlled substance law).  Under the signed plea agreement, appellant was to (1) work undercover to aid in successfully obtaining the arrests and charging of three drug dealers, and (2) appear voluntarily at sentencing.  In exchange, the state would recommend a downward dispositional departure at sentencing.  If appellant failed to accomplish these conditions, it was agreed the state would recommend the presumptive sentence under the Minnesota Sentencing Guidelines.

            It is undisputed that three weeks after entering into the plea agreement appellant had made no progress toward obtaining the arrest of any drug dealers.  At this time, the Department of Corrections (DOC) issued a warrant for appellant’s arrest.  The DOC was not a party to the plea agreement and therefore not bound by it.  Upon learning of the warrant, appellant chose to flee the state.  He subsequently was jailed in California and failed to appear at sentencing.

            Appellant contends the plea agreement implied that he would have the entire eight-week period between the guilty plea and sentencing to fulfill the agreement and that by failing to prevent the DOC from issuing a warrant for his arrest, the state made it impossible for him to perform the conditions of the plea agreement. Therefore he contends the district court erred by denying his motion to withdraw the plea and by instead imposing the presumptive sentence.  We disagree.

            Appellant’s own conduct made it impossible to satisfy the conditions of the agreement.  There is no evidence that after learning of the DOC warrant, appellant made any attempt to contact either the state or the DOC regarding the plea agreement.  Instead, he fled.  By fleeing to California, appellant failed to fulfill the condition of the agreement that he appear voluntarily at sentencing.  In light of appellant’s breach of the agreement, we conclude the district court did not abuse its discretion in determining appellant failed to show that it was fair and just that he be allowed to withdraw his plea. 

Affirmed.