This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-01-504

 

State of Minnesota,

Respondent,

 

vs.

 

Anthony Akeum Abari,

Appellant.

 

Filed September 11, 2001

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. 00083988

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

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

 

 

            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Lindberg, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Anthony Akeum Abari challenges the district court’s denial of his motion to withdraw his guilty plea prior to sentencing.  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 district court, “and it will be reversed only in the rare case in which the appellate court can fairly conclude that the [district] court abused its discretion.”  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  A court may permit a defendant to withdraw a plea before sentencing “if it is fair and just to do so,” taking into consideration whether granting the motion would prejudice the prosecution.  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).

If a guilty plea can be withdrawn for any reason or without good reason at any time before sentence is imposed, then the process of accepting guilty pleas would simply be a means of continuing the trial to some indefinite date in the future when the defendant might see fit to come in and make a motion to withdraw his plea. 

 

Id. (quotation and citations omitted). The defendant bears the burden of proving that the reason for withdrawing the plea is fair and just.  Id.

            Appellant contends that withdrawal is fair and just because he pleaded guilty out of fear of being found guilty of robbery.  But he provides no caselaw establishing that entering a plea induced by the fear of being found guilty of a higher offense is a proper justification for withdrawing a plea.  Moreover, appellant’s criminal record makes it unlikely that he did not understand the consequences of pleading guilty.  State v. Doughman, 340 N.W.2d 348, 353 (Minn. App. 1983), review denied (Minn. Mar. 15, 1984).   We conclude that appellant’s fear of being found guilty of a higher offense is not a valid justification for withdrawal of his guilty plea.

Appellant also contends that the victim’s recantation and appellant’s new version of what took place establishes a justification for withdrawal.  But the district court did not find the victim’s recantation credible and rejected appellant’s new version of what happened:

I frankly have no basis to believe what you’re saying today any more than what you said at the time of the plea.  So I am accepting what you said at the time of the plea. 

 

The district court was in the best position to evaluate appellant’s credibility and his justifications for withdrawing his plea.  See State v. Lopez, 379 N.W.2d 633, 638 (Minn. App. 1986) (stating district court is in better position to evaluate witnesses’ credibility), review denied (Minn. Feb. 14, 1986) .

            Finally, appellant contends that the state’s failure to show prejudice favors his  motion to withdraw.  But appellant has not met his burden of establishing an adequate justification for withdrawal; thus, it is not necessary to evaluate the prejudice the state would suffer.  We conclude that appellant has failed to meet his burden of showing that the district court abused its discretion in denying his motion to withdraw his guilty plea.

            Affirmed.