This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1473

 

State of Minnesota,

Respondent,

 

vs.

 

Juan L. Mireles,

Appellant.

 

Filed August 2, 2005

Affirmed as modified
Klaphake, Judge

 

Watonwan County District Court

File No. KX-04-10

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Lamar Piper, Watonwan County Attorney, Courthouse, 101 South 7th Street, Box 518, St. James, MN  56081 (for respondent)

 

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Juan Mireles pleaded guilty to two counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2002).  Appellant argues that his plea agreement was neither voluntary nor accurate and the district court abused its discretion in denying his motion to withdraw his plea.  Because the plea was voluntary and accurate, we affirm.  Appellant also argues that the district court erred in executing his previously stayed sentence.  Because the district court erred in its execution of appellant’s previous stayed sentence, we modify.

D E C I S I O N

            1.         Withdrawal of Guilty Plea

The district court has broad discretion in deciding whether to permit the withdrawal of a plea of guilty.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  This court will reverse only if it can fairly conclude that the district court abused its discretion.  Id.  A criminal defendant has no absolute right to withdraw a plea of guilty once it has been entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).

The rules of criminal procedure provide two bases on which the district court may exercise its discretion to allow a criminal defendant to withdraw a plea of guilty.  Minn. R. Crim. P. 15.05.  A district court must allow a defendant to withdraw a plea of guilty upon a timely motion and proof that “withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1.  A manifest injustice occurs when a plea is not accurate, voluntary, and intelligent.  Alanis, 583 N.W.2d at 577.  A defendant may premise a motion to withdraw a plea on this basis either before or after sentencing.  State v. Abdisalan, 661 N.W.2d 691, 693 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003). 

            Appellant argues that the district court abused its discretion in denying his motion to withdraw his plea agreement because the plea was not voluntary.  A plea is voluntary if it is not made in response to improper pressures, inducements, or promises.  Alanis, 583 N.W.2d at 577.  A criminal defendant has the burden of establishing facts warranting the reopening of his case.  King v. State, 562 N.W.2d 791, 794 (Minn. 1997).  

Appellant contends that (1) the court did not secure a valid waiver of rights from him; and (2) his plea was induced by pressure from defense counsel.  But throughout the plea hearing, the court questioned appellant to insure the accuracy of his plea.  Appellant produced no evidence of pressure from defense counsel.

            Appellant contends that defense counsel impermissibly asked leading questions to establish the factual basis for his guilty pleas.  The district court bears the primary responsibility to advise and interrogate the defendant in sufficient detail to establish an adequate factual basis for the plea. 

            [I]t is the trial judge’s sole and awesome responsibility to determine whether the plea he is being asked to accept is voluntary and that defendant’s admissions of the relevant facts and circumstances of his conduct establish that he committed the offense charged or an offense at least as serious as the offense to which he is tendering his plea.

 

State v. Hoaglund, 307 Minn. 322, 325, 240 N.W.2d 4, 5 (1976).  “[T]he purpose of the factual-basis requirement is to ensure the accuracy of the plea.”  Beaman v. State, 301 Minn. 180, 183, 221 N.W.2d 698, 700 (1974).  An accurate plea is one entered without improper inducement and with a full understanding of the possible consequences; it is also one that demonstrates that defendant is guilty of a crime at least as serious as that to which he is pleading.  Id.

            Here, the court questioned appellant regarding the facts of the case until appellant denied having sexual intercourse with an “individual who was over 13 but under 16.”  The court then asked if appellant was pleading not guilty and appellant stated, “I’m pleading guilty, man.  You guys gave me a deal I couldn’t refuse.”  The court then indicated that they were going back to trial and that the state would need to meet its burden of proof.  Before the judge was able to call the jury back in, defense counsel asked for a minute with his client.  After an off-the-record conversation, defense counsel asked leading questions to establish the remaining facts of the case. 

            The record shows that appellant had full understanding of the possible consequences.  Appellant even commented that he was getting a “deal [he] couldn’t refuse.”  The district court did not abuse its discretion by denying appellant’s motion to withdraw his plea.

            Appellant also argues that the district court should have allowed him to withdraw his guilty plea at sentencing, when the attorneys discovered that the presumptive sentence in his plea agreement was incorrect.  On the record during the plea hearing, appellant agreed to the guidelines sentence.  The attorneys believed at the time that the presumptive sentence would be 33 months.  At sentencing it was discovered that the presumptive sentence was between 38 and 43 months.  Appellant made no request at that time to withdraw his guilty plea because the presumptive sentence was higher than he expected.  This court does not review matters not properly raised at the district court level and raised for the first time on appeal.  See State v. Packard, 366 N.W.2d 721, 726 (Minn. App. 1985), review denied (Minn. July 17, 1985).

            2.         Previously Stayed Sentence

            Appellant also argues that the district court erred in executing his previously stayed sentence consecutively to the sentence for criminal sexual conduct.  A district court cannot make a previously imposed sentence run consecutively to a subsequently imposed sentence.  State v. Klang, 320 N.W.2d 718, 719 (Minn. 1982); see also Minn. Sent. Guidelines II.F. (stating that concurrent sentencing is presumptive when prior felony sentence has not expired or been discharged).  Under Minn. Stat. § 609.14, subd 3 (2002), the district court, upon finding that grounds for revocation existed, had the choice of either continuing the stay and placing the defendant on probation or ordering execution of the sentence previously imposed.  It had no authority to make the previously imposed sentence run consecutively to the subsequently imposed sentences.  Thus, we modify appellant’s previously stayed sentence to run concurrently with the sentence for third-degree criminal sexual conduct.

            Affirmed as modified.