This opinion will be unpublished and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

A05-535

 

State of Minnesota,

Respondent,

 

vs.

 

Richard Faye Auman,

Appellant.

 

Filed March 7, 2006

Affirmed

Kalitowski, Judge

 

Benton County District Court

File No. K7-03-1672

 

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

 

Robert Raupp, Benton County Attorney, Karl Schmidt, Assistant County Attorney, Courts Facility, P.O. Box 189, Foley, MN 56329 (for respondent)

 

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

 

            Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

In this appeal following his convictions of felony terroristic threats under Minn. Stat. § 609.713, subd. 1 (2002), and misdemeanor violating an order for protection under Minn. Stat. § 518B.01, subd. 14(a), (b) (2002), appellant argues that the district court abused its discretion in denying his motion to withdraw his guilty plea.  We affirm.          

D E C I S I O N

            It is well established that a person who has “entered a plea of guilty to a criminal complaint does not have the absolute right to withdraw it.”  State v. Knight, 292 Minn. 419, 423, 192 N.W.2d 829, 832 (1971).  A court may allow a defendant to withdraw a guilty plea before sentencing “if it is fair and just to do so,” taking into account whether granting the motion would prejudice the prosecution.  Minn. R. Crim. P. 15.05, subd. 2.  The defendant has the burden to prove a “fair and just” reason to allow plea withdrawal.  State v. Kaiser, 469 N.W.2d 316, 320 (Minn. 1991).   A reviewing court will reverse the district court’s determination whether to permit plea withdrawal only if the district court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  

            A valid guilty plea must be accurate, voluntary, and intelligent.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).   A plea is intelligently made if the defendant knows and understands the charges, the rights he waives by pleading guilty, and the consequences of his plea.  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).  The voluntariness requirement ensures that the defendant did not plead guilty because of improper pressures or inducements.   Id.

I.

            Appellant argues that it would be fair and just to allow plea withdrawal because his plea was based on an unqualified promise as to the length of his sentence, which was not reflected at sentencing.  A defendant may be entitled to withdraw his guilty plea if he receives an unqualified promise regarding a specific sentence because of a mutual mistake on his criminal-history score.  See State v. DeZeler, 427 N.W.2d 231, 234-35 (Minn. 1988) (allowing defendant to withdraw guilty plea because of mutual mistake, distinguishing between agreements as to sentence and agreements in which prosecutor merely promises to recommend certain sentence and district court rejects recommendation).  But if a defendant merely believes that he will receive a sentence other than that imposed, he is not entitled to withdraw his plea.  See Kochevar v. State, 281 N.W.2d 680, 688 (Minn. 1979) (holding that defendant was not allowed to withdraw plea when he failed to show that representations constituted unqualified promise); Spann v. State, 368 N.W.2d 377, 379 (Minn. App. 1985) (holding that when district court made no commitment as to sentence or promise as to probation, defendant was not allowed to withdraw plea when court imposed presumptive sentence based on correct computation of his criminal-history score). 

            Here, appellant contends that, based on his plea agreement and his attorney’s representation at the plea hearing, he was unconditionally promised a 29-month sentence, rather than the 32-month sentence imposed.  But the record reflects that appellant’s sentence was calculated to include a three-month custody-status enhancement, which was imposed because of his criminal-history score and status on supervised probation for a felony when the charged offense was committed.  See Minn. Sen. Guidelines, II.B.2 (explaining custody-status enhancement). His attorney did not dispute that the custody-status enhancement added to the duration of his presumptive guidelines sentence.  At the plea hearing, the attorney stated:

The offer was to dismiss Count 1, which is the Burglary in the First Degree, that you plead to the Terroristic Threats, and the State would agree to the lower end of the [sentencing guidelines] box, plus the Violation of the Order for Protection, which is a misdemeanor, so it would get eaten up by the prison sentence, and I think it was 32 months, because we think you have that extra three points.  Lower end of the box is 29 [months]. 

 

The signed plea petition indicated that the “state agrees to the lower end of box on Sentencing Guidelines (29).”   

            Appellant’s presumptive-guidelines sentence, based on his criminal-history score of nine and his offense-severity-level of four, with his added three-month custody-status enhancement, ranges from 32-34 months.  See Minn. Sent. Guidelines IV, cmt. II.B.203-04 (stating that three-month custody-enhancement results in corresponding increase in lower and upper duration of sentencing range).  His presumptive-sentence range without the custody-status enhancement would have been 29-31 months.  Minn. Sent. Guidelines IV.  Thus, the “lower end of the box” for his presumptive guidelines sentence, including the custody-status enhancement, was 32, rather than 29, months, and his attorney’s reference to a 32-month sentence reflects her knowledge that the three-month enhancement would be added to his presumptive sentence.   The attorney’s misspoken reference to “that extra three points” rather than “that extra three months” was corrected at the sentencing hearing, when she asked the court to “consider not imposing the extra three months because of [appellant’s] score.” 

            In addition, the district court appropriately waited to impose a sentence until a review of the presentence investigation occurred, which calculated definitively the length of appellant’s presumptive guidelines sentence.  “In a substantial number of cases, the prosecution, the defense counsel and the court must wait until after a pre-sentence investigation report has been prepared before they can accurately determine the presumptive sentence.”  Trott, 338 N.W.2d at 252-53.  We conclude that the record does not reflect that appellant received an unqualified promise of a 29-month sentence, and the district court did not abuse its discretion in declining to allow plea withdrawal on that basis. 

II.

            Appellant raises additional arguments as to why the district court abused its discretion in refusing to allow plea withdrawal.  Before he requested plea withdrawal at sentencing through his attorney, appellant wrote two letters directly to the district court asking for withdrawal.   In denying the first request, which was submitted the day after the plea hearing, the district court indicated that the court had carefully observed appellant during the plea hearing, that it was obvious he fully understood the proceedings, and that he indicated he was freely and voluntarily entering the plea.  In appellant’s second request, which the district court also denied, appellant contended he was unclear as to the charges to which he pleaded guilty and asserted “psychological manipulation” by his attorney in inducing him to accept the plea when he was not taking prescribed medication for a mental condition. 

            The record indicates that at the plea hearing, the district court read the charges and their factual basis to appellant, who indicated that he understood the charges and wished to plead guilty.  In response to questioning from his attorney, appellant acknowledged that he understood the evidence that would be presented against him and that he was giving up his right to challenge that evidence, to have it presented in open court, and to cross-examine the state’s witnesses.  He stated that he was not taking his medication while in custody because he declined to purchase it on account of the expense.  When the court asked appellant, “Do you think you are lucid enough to know where you are and what’s going on?”, he replied, “Yes, I believe so.”  Appellant also acknowledged that despite a previous argument with his attorney, he still wished her to represent him.  Thus, the plea hearing record does not support appellant’s contention that his plea was not intelligent or voluntarily made.   

            Finally, we disagree with appellant’s contention that the state would not be prejudiced if appellant were allowed to withdraw his plea.  It is unrefuted that the state, in response to appellant’s speedy-trial demand, had arranged for a number of witnesses to testify at the trial, which was scheduled four days after the Spreigl hearing at which appellant entered the plea. Allowing him to withdraw the plea immediately before trial would have required the state, after notifying witnesses that they would not be needed to testify, to re-subpoena those witnesses for an immediate speedy trial.   

            In conclusion, the district court did not abuse its discretion in denying appellant’s request to withdraw his guilty plea. 

Affirmed.