Filed August 9, 2005

Affirmed

Randall, Judge

Cass County District Court

File No. KX-03-1324

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

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Earl Maus, Cass County Attorney, Cass County Courthouse, 300 Minnesota Avenue, Walker, MN 56484 (for respondent))

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Forsberg, Judge.*

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

RANDALL, Judge

Appellant challenges his conviction of second-degree drug possession, arguing that the district court abused its discretion by not allowing him to withdraw his guilty plea when the motion was made before sentencing and when withdrawal would have been “fair and just.” We conclude that the district court did not abuse its discretion in denying appellant’s motion to withdraw his plea. We affirm.

FACTS

On November 25, 2003, Cass Lake Police were called to the Palace Casino Hotel in Cass Lake, Minnesota, regarding two individuals suspected of possessing firearms. One of the arresting officers recognized one of the individuals as appellant John Jerrod Jones, who the officer knew had an outstanding arrest warrant. The officer conducted a search incident to arrest and found several packets of cocaine; four tablets of hydrocodone, a schedule III controlled substance; and nine marijuana joints. The officer calculated that appellant possessed the cocaine with intent to sell due to the fact that it was in individually wrapped bindles. The complaint stated that the total weight of the cocaine was 11.8 grams. Appellant was charged with first-degree controlled-substance crime for possession of the cocaine with intent to sell and fourth-degree controlled-substance crime for possessing the four tablets of hydrocodone.

On March 12, 2004, a pretrial hearing was held, in which counsel for appellant stated that he believed a plea agreement had been reached, but also stated that appellant wished to speak with his family before making the agreement final.[1] Appellant’s mother then entered the courtroom, and the parties agreed to a recess to allow appellant to speak with his mother regarding the plea offer. Appellant, his mother, and his attorney all met in the jury room for about an hour. When court reconvened, appellant’s counsel announced appellant’s decision to accept the state’s offer and plead guilty to the lesser, second-degree controlled-substance possession; with the fourth-degree count and an escape charge from another file to be dismissed. Appellant affirmed his counsel’s statement, and was duly sworn and examined, setting forth his knowledge and consent to the plea agreement.

On March 22, 2004, the district court received a letter from appellant asking to withdraw his guilty plea and proceed to trial. On April 5, 2004, appellant’s counsel filed a motion for plea withdrawal. On April 19, 2004, a hearing was held on appellant’s motion. Appellant did not testify nor did he submit an affidavit or other documentation in support of his motion. The court took the matter under advisement. On May 14, the court denied appellant’s motion to withdraw his plea. On June 7, appellant’s attorney appeared again on behalf of appellant asking for plea withdrawal, this time based on a claim of mutual mistake regarding appellant’s criminal-history score. According to appellant and his counsel, the presumed sentence was based on a mistaken belief, by both sides, that appellant had a criminal-history score of three or four points. This would have resulted in a presumptive sentence of 78 to 88 months. However, when the PSI was submitted, appellant’s criminal-history score was determined to be six points. Respondent denied any mutual mistake and contended that length of sentence was not part of the plea agreement. The court took the matter under advisement and on June 15, denied appellant’s second motion to withdraw his plea.

During the June 21 sentencing hearing, the circumstances surrounding the criminal history score were addressed again. Appellant, represented by new counsel, argued that his prior counsel had erred in the calculation of his criminal history score. Appellant claimed that he relied on this calculation when making his plea. Apparently, from the time of the prior hearing, a subsequent PSI reflected a “new” criminal-history score of seven and one-half instead of six. Appellant argued that the court should impose sentence based on the criminal-history score of three or four – the score that he claimed he relied on. The district court first determined that it would use the PSI score of six instead of the new score of seven and one-half. In making this determination the district court stated,

With respect to the addition of the point and a half, which would amount to three more months on the sentence, I am not going to be imposing any additional time for that extra point and a half because I think that everybody had enough time to
come up with the right answer and if we were wrong in this case, I think the error is de minimis in nature and I am going to impose what was called for in the original sentencing worksheet.

The court went on, again, to deny the plea withdrawal, stating,

I am going to impose the sentence and I guess if you want to appeal it, just so you are clear, I think that you understand this, if you appeal it and you gain an opportunity to have a trial, not only will you be opening up yourself to getting sentenced on the full seven and a half points, you open yourself up to being charged with the escape charge again, and so you area looking at potentially, if I am missing three months on this one and 12 on the escape, another 15 months, and also your score is such that I am not hearing there is any argument about the actual number of the score, maybe there is, but you are opening yourself up to the habitual offender avenue which could be an even higher sentence.

The district court then sentenced appellant to the presumptive guidelines sentence of 108 months executed.

D E C I S I O N

Appellant challenges the district court’s denial of his motion to withdraw his guilty plea under the “fair and just” standard. Generally, a district court has broad discretion to permit the withdrawal of a plea of guilty. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998). The ultimate decision of whether to allow withdrawal under the fair-and-just standard is left to the sound discretion of the district court and will be reversed only in the rare case when it is clear that the district court abused its discretion. State v. Kaiser, 469 N.W.2d 316, 320 (Minn. 1991).

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. The first requires that the defendant present “proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” Id., subd. 1. The second basis for plea withdrawal is the court’s determination, upon considering the reasons for the motion and any prejudice to the prosecution, that “it is fair and just” to allow the withdrawal. Minn. R. Crim P. 15.05, subd. 2. A motion on this basis must be made before sentencing. Id.

In determining whether the defendant’s reason is “fair and just,” the district court is to give due consideration not only 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.” Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). A defendant should not be freely allowed to withdraw his guilty plea without good reason because doing so “would undermine the integrity of the plea-taking process” and “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. (quoting United States v. Suter, 755 F.2d 523, 526 (7th cir.), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331 (1985). The defendant has the burden of
proving that there is a “fair and just” reason to withdraw his plea. Kaiser, 469 N.W.2d at 319.

Appellant’s arguments were essentially the same at the district court as on appeal – that it was “fair and just” to allow him to withdraw his plea. We disagree. The record supports the district court’s determination rejecting appellant’s motion for plea withdrawal.

The plea-hearing transcript demonstrates that appellant was aware of the nature of the charges against him, that appellant agreed that he had “sufficient time” to discuss his case with his attorney, that he understood the plea agreement, and that his attorney had informed him of his right to a jury trial. When asked if he was “satisfied with the job” of his attorney, appellant replied, “Yes.” And when asked if he had “[a]ny complaints at all,” he replied, “No.” The police reports and the criminal complaint, which the district court had at its disposal, corroborate the version of the events surrounding appellant’s plea.

The record reflects that at the start of the plea hearing, appellant’s attorney indicated that appellant would like the opportunity to discuss the plea offer with his family prior to proceeding. Respondent agreed to this request and felt it was reasonable. Further, the parties were in agreement to continue the pre-trial until the following Monday. Appellant’s mother then entered the courtroom and a lengthy conference was held in the jury room with appellant, his mother, and his attorney. Appellant subsequently reentered the courtroom and entered his guilty plea. Appellant made no further request to speak to other family members or to extend the proceedings through the weekend.

Appellant claims that the night before his plea hearing, he had taken sleep medication that had left him groggy the day of the hearing. The record does not support this claim. During the plea hearing appellant denied being under the influence of any alcohol or drugs. Also, appellant was in custody the night before the hearing and presented no documentation from the jail to support access to sleeping pills. The district court viewed appellant during the plea hearing and, ultimately, made a credibility determination that appellant’s assertion about being groggy from sleeping pills was not credible. See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (emphasizing that it is exclusive function of fact-finder to weigh credibility).

Regarding the weight of the cocaine, appellant was initially charged with first-degree controlled-substance crime for possession of 11.8 grams of cocaine with intent to sell and the fourth-degree controlled-substance crime for possessing the four tablets of hydrocodone. The actual weight of the cocaine was later tested to be 7.2 grams. Appellant claims that the plea should be withdrawn based on his reliance on the inaccurate higher number. Appellant, however, pleaded guilty to the lesser-included count of controlled substance crime in the second degree. Minn. Stat. § 152.022, subd. 2(1) (2002). The 7.2 gram weight was within Minn. Stat. § 152.022, subd. 2(1), which only requires possession of six grams of cocaine.

Finally, the record supports the district court’s determination regarding appellant’s contention that his plea was in reliance on a lesser sentence. The district court addressed the sentence issue in its order dated June 15, 2004, when it denied appellant’s motion for plea withdrawal, stating that “there was no mutual mistake as to [appellant’s] criminal history score, even though the parties may have discussed different scenarios based on different scores.” Again, during the sentencing hearing, appellant made an argument, on the record, regarding this sentencing issue. And, again, the court denied appellant’s plea withdrawal. The district court determined that appellant’s claim regarding reliance on a lesser sentence was not credible. See Pieschke, 295 N.W.2d at 584.

Considering the context in which appellant’s plea of guilty occurred, appellant has failed to establish that the district court abused its discretion in denying his motion to withdraw his plea of guilty. The facts here do not present the rare case warranting reversal of a district court’s discretionary decision to deny a motion to withdraw a plea before sentencing. Kaiser, 469 N.W.2d at 320.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The original date of the hearing was set for March 15, 2004, but the date had been moved up to March 12, 2004, by request of appellant’s trial attorney. According to appellant he was not aware of the date change prior to March 12, 2004, and claims he was not prepared for the hearing.