C9-99-1841

State of Minnesota,

Respondent,

vs.

Raymond Benjamin,

Appellant.

Filed July 11, 2000

Affirmed

Willis, Judge

Hennepin County District Court

File No. 98019516

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

Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.

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

WILLIS, Judge

Raymond Benjamin appeals from the denial of his motion to withdraw his plea of guilty to the offense of aiding and abetting assault in the first degree, in violation of Minn. Stat. § 609.221, subd. 1 (1996) and Minn. Stat. § 609.05 (1996). We affirm.

FACTS

On June 11, 1998, appellant Raymond Benjamin pleaded guilty to aiding and abetting assault in the first degree. In response to questioning by his counsel, Benjamin testified that on the evening of February 20, 1998, he and his cousin, G.W., were at the home of Benjamin’s mother and that, after the victim of the assault entered the home, Benjamin threw him onto the floor, and that he and G.W. were involved in an altercation with the victim during which he struck the victim “a couple of times.”

As part of Benjamin’s plea agreement, the state could call Benjamin to testify at G.W.’s trial to the same information he testified to in entering his plea and Benjamin was to be sentenced after that trial. The state later dismissed the charges against G.W. when it was unable to locate the victim of the assault.

Benjamin moved to withdraw his guilty plea. His motion was denied, and he appeals.

D E C I S I O N

A defendant does not have an absolute right to withdraw a guilty plea. Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). Rather, Minn. R. Crim. P. 15.05 sets forth the only two bases for withdrawal. Kim v. State, 434 N.W.2d 263, 265-66 (Minn. 1989). Under rule 15.05, subdivision 1, a defendant “has a right to withdraw his guilty plea” either before or after sentencing if the defendant can establish that withdrawal is “necessary to correct a manifest injustice.” State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991) (citation omitted). Under rule 15.05, subdivision 2, a defendant,

in the discretion of the [district] court, may be allowed to withdraw his guilty plea only if the defendant has not been sentenced and only “if it is fair and just to do so.”

Kim, 434 N.W.2d at 266 (quoting Minn. R. Crim. P. 15.05, subd. 2).

Benjamin, who was not sentenced before moving to withdraw his guilty plea, argues that the district court erred in denying his motion because withdrawal is necessary to correct a manifest injustice or, alternatively, because it is fair and just to allow withdrawal.

A. Manifest injustice.

Benjamin argues that the district court erred in denying his motion to withdraw his guilty plea because the plea was not voluntary and thus was manifestly unjust. A valid guilty plea must meet three prerequisites: it must be accurate, voluntary, and knowingly and understandingly made. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). Manifest injustice exists if any of these three prerequisites has not been met. Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

“The purpose of the voluntariness requirement is to [e]nsure that the defendant is not pleading guilty because of improper pressures.” Trott, 338 N.W.2d at 251. Whether a plea was entered voluntarily can be determined only by “considering all of the relevant circumstances surrounding it.” State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994) (quoting Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 1469 (1970)). And a district court’s finding of whether a plea was voluntarily made is a question of fact, which will not be disturbed unless the finding is clearly erroneous. Danh, 516 N.W.2d at 544. Thus, we will affirm where there is evidence reasonably supporting the district court’s finding that a plea was voluntarily made. See id.

Benjamin first argues that his plea was not voluntary because he thought the victim of the assault would testify against him and that he was, therefore, “trapped and forced into pleading guilty in order to avoid a longer prison term if he was convicted after trial.” But while the state may not compel a defendant to plead guilty by threatened or actual physical harm or by mental coercion “overbearing the will of the defendant,” a defendant’s desire to avoid a more serious penalty or set of charges does not render a plea involuntary. State v. Ecker, 524 N.W.2d 712, 719 (Minn. 1994).

Benjamin also argues that his plea was involuntary because he did not have effective assistance of counsel. When a defendant 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.’” Id. at 718 (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369 (1970) (quotation omitted)). To demonstrate ineffective assistance of counsel in the plea process, a defendant must first show that counsel’s representation fell below an objective standard of reasonableness and must then show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (quotation omitted).

The district court found that Benjamin had effective assistance of counsel during the plea process after hearing the testimony of both Benjamin and the attorney who then represented him. Benjamin testified that at the time he entered his plea he did not feel coerced to plead guilty but that, in retrospect, he believed he was coerced. His former counsel testified that he had discussed the case with Benjamin on the telephone eight to twelve times, that he had visited Benjamin in jail when first assigned the case, that he spent the majority of the day before Benjamin pleaded guilty discussing with Benjamin both the case against him and the ramifications of either pleading guilty or continuing to trial, and that he did not coerce Benjamin to plead guilty. Benjamin was asked by the court when he entered his plea if he was satisfied with his counsel’s representation; he answered, “Yes.”

We conclude that there is evidence reasonably supporting the district court’s finding that Benjamin’s guilty plea was voluntarily made and, therefore, that the court’s finding is not clearly erroneous.

B. Fair and just.

Benjamin argues that even if the circumstances of his guilty plea do not rise to the level of creating manifest injustice, the district court erred in denying his motion to withdraw his plea because, under the circumstances, it was fair and just to allow withdrawal. A defendant bears the burden of demonstrating that allowing withdrawal of his guilty plea before sentencing would be fair and just. See Kim, 434 N.W.2d at 266. To determine whether to allow withdrawal, the district court must “give due consideration not just to the reasons advanced by the defendant but [also] to ‘any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.’” Id. (quoting Minn. R. Crim. P. 15.05, subd. 2). This determination “is left to the sound discretion of the [district] court.” Id. We will reverse only in the rare case in which we conclude that the district court abused its discretion. Id.

The record shows that the district court conducted a thorough rule 15.01 inquiry. See Minn. R. Crim. P. 15.01 (setting forth procedure for district court to question defendant before court accepts guilty plea). Benjamin was represented by counsel and had adequate time to discuss his plea with his attorney. He testified both when entering his plea and in the hearing on his motion to withdraw the plea that he did not feel coerced to plead guilty at the time he entered his plea and that he reviewed and understood his plea petition. And the record shows that the state clearly would be prejudiced by allowing Benjamin to withdraw his guilty plea because it is not able to locate the victim of the assault.

The district court determined that it would not be fair and just to allow Benjamin to withdraw his guilty plea. We conclude that this is not the rare case in which the district court abused its discretion in making that determination.

Affirmed.