This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1981

 

State of Minnesota,

Respondent,

 

vs.

 

Charles Geiger,

Appellant.

 

Filed August 10, 2004

Affirmed; motion denied

Harten, Judge

 

Olmsted County District Court

File No. K0-01-4117

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Raymond F. Schmitz, Olmsted County Attorney, Lisa R. Swenson, Senior Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, Cathryn Young Middlebrook, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

            Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the trial court abused its discretion in denying his pre-sentence motion to withdraw his guilty plea because his lack of knowledge of a collateral consequence makes it “fair and just” to allow withdrawal of the plea.  We affirm.

FACTS

On 28 November 2001, appellant Charles Geiger was charged with two counts of first-degree criminal sexual conduct.  The complaint alleged that appellant’s stepdaughter stated that “her daddy put his thingy, referring to his penis, in her butt.”  Appellant denied the allegations.  On 11 July 2003, appellant pleaded guilty to one count, and the other was dismissed.[1]  At the plea hearing, appellant admitted that, from January through July 2000, he was living with his wife and her two-year-old daughter and had unsupervised contact with her daughter.  He also admitted that, during this time period, he penetrated his stepdaughter with his penis for sexual purposes.  Following extensive questioning about appellant’s understanding of the plea agreement, the possible sentence, and whether appellant was entering into the plea agreement voluntarily, the district court accepted appellant’s guilty plea.

            On 15 September 2003, appellant moved to withdraw his plea.  The district court, noting that appellant had to show that withdrawal of his plea was “fair and just,” denied the motion:

I think the advisory of rights was complete.  I think it was understood by [appellant].  I think the explanation of possible consequences of a guilty plea was complete as well.  And furthermore, I think the factual basis was complete.  This was never an Alford plea, anything like that, this was a specific admission of the elements of the charged offense.

            I’m satisfied that the plea taking was complete, that the plea was knowingly and intelligently made.  I think [appellant] has changed his mind about whether he wishes to enter a guilty plea or have a trial.  But in my view he’s past the point at which he has that choice to make.  I don’t consider it to be fair and just in this case, I don’t consider fairness and justice in this case to require me to allow [appellant] to withdraw his plea.

Appellant was sentenced to an upward durational departure of 19 months in addition to the 86 months presumptive sentence for a total of 105 months.  He now challenges the denial of his motion to withdraw his guilty plea.

D E C I S I O N

There is no absolute right to withdraw a guilty plea.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  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).  Our review is limited to determining whether there is sufficient evidence in the record to sustain the district court’s findings.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).

A district court may allow a defendant to withdraw a guilty plea before sentencing, in its discretion, “if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and 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 defendant bears the burden of establishing a “fair and just” rationale for withdrawal of a guilty plea.  State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991).  The showing required to withdraw a plea before sentencing is less than that required to withdraw a plea at any time to correct a “manifest injustice.”  State v. Williams, 373 N.W.2d 851, 853 (Minn. App. 1985) (comparing “fair and just” to the “manifest injustice” showing required under Minn. R. Crim. P. 15.05, subd. 1).

In Williams, this court held that “[t]rial courts should generally be lenient in allowing withdrawal of a plea before sentencing.”  Id. at 853.  But the supreme court has since held:

Underlying the rule is the notion that giving a defendant an absolute right to withdraw a plea before sentence would undermine the integrity of the plea-taking process. . . .  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.

Kim, 434 N.W.2d at 266 (citations and quotation omitted).

            Appellant argues that withdrawal of his guilty plea is fair and just because he was unaware that registration as a sex offender would impede his ability to live with his parents at a retirement community.  The duty to register as a sex offender is a collateral consequence of a guilty plea, and ignorance of the duty to register does not constitute a “manifest injustice” required for withdrawal of a guilty plea after sentencing.  Kaiser v. State, 641 N.W.2d 900, 907 (Minn. 2002).  Appellant argues that ignorance of a collateral consequence “may reach the lesser standard of ‘fair and just.’”  (Emphasis added.)  But appellant does not argue that he was ignorant of his duty to register; he argues that he was unaware of a consequence of the registration, which is an even less direct consequence of his guilty plea than the actual duty to register.  Appellant cites State v. Abdisalan, 661 N.W.2d 691, 695 (Minn. App. 2003), review denied (Minn. 19 Aug. 2003), for the proposition that ignorance of serious collateral consequences, such as deportation or extended incarceration, would meet the fair-and-just standard.  But his reliance is misplaced because Abdisalan did not address ignorance of collateral consequences.[2]

Appellant also claims that his guilty plea was coerced because it was based on his desire for treatment.  He argues that, because he could not afford treatment himself, he needed the state to pay for it.  But a defendant who seeks to withdraw a guilty plea based on coercion must show that the state induced the guilty plea “through actual or threatened physical harm, or by mental coercion overbearing the will of the defendant.”  Sykes v. State, 578 N.W.2d 807, 813 (Minn. App. 1998) (quotation omitted), review denied (Minn. 16 July 1998), cert. denied, 525 U.S. 1055, 119 S. Ct. 619 (1998).  There is no evidence in the record that appellant’s decision to plead guilty was based on the state’s promise of treatment.  The record reveals that the state only promised to join defense counsel in recommending that appellant be put on probation if appellant was found to be amenable to probation by court services.  Appellant stated during the plea hearing that there were no other promises, bargains, deals, or understandings that were made to him to motivate him to plead guilty and that the entire agreement was stated in the plea petition.

The state argues that it would be prejudiced by withdrawal of appellant’s guilty plea because the prosecutor told the victim that she would not have to testify.  Appellant claims the state would not necessarily be prejudiced because the district court would have to complete a competency evaluation of the victim before she would be permitted to testify.  But appellant’s argument ignores the fact that the victim would have to go through a competency evaluation if appellant’s guilty plea were withdrawn.

Taking the relevant factors under rule 15.05 into consideration, we conclude that the district court did not abuse its discretion in denying appellant’s motion to withdraw his guilty plea.[3]

Affirmed; motion denied.