This opinion will be unpublished and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

A05-592

 

Shawn Lewes Hanson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed May 16, 2006

Affirmed; motion granted

Minge, Judge

 

Benton County District Court

File No. KX-97-831

 

 

Matthew K. Begeske, Begeske Law Offices, 713 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellant)

 

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

 

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

 

            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Ross, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the district court’s denial of his motion to withdraw his guilty plea on the grounds that the plea was not intelligently made and that there is significant newly discovered evidence.  Respondent moves to strike a portion of appellant’s brief.  Because we conclude that the district court did not abuse its discretion in denying appellant’s motion, we affirm.  Because appellant improperly submitted materials outside the appellate record, we grant respondent’s motion to strike.

FACTS

            Appellant Shawn Lewes Hanson was charged with criminal sexual conduct in the fourth degree, in violation of Minn. Stat. § 609.345, subds. 1(c), 2 (1996).  The victim was appellant’s former girlfriend; they had a daughter together.  As part of a plea agreement, the charge was reduced to criminal sexual conduct in the fifth degree, a violation of Minn. Stat. § 609.3451, subds. 1(a), 2 (1996).  Appellant entered an Alford plea, whereby he maintained his innocence, but admitted that a jury could find him guilty.  See N.C. v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970).  Certain sentencing limits were also defined. 

            Prior to sentencing, the district court ordered a presentence investigation, including a sex-offender assessment.  At the October 8, 1998 sentencing hearing, the district court executed a 30-day jail sentence, allowed appellant to serve the sentence during an expected seasonal work layoff, stayed 335 additional days of incarceration, placed appellant on probation, and ordered him to write an apology letter.  Appellant’s failure to complete the sex-offender assessment was discussed, and appellant assured the court that there was only a technical difficulty in taking one test and that he would follow through with the assessment in a timely fashion.  The district court ordered appellant to complete the assessment and delayed ordering treatment until receipt of the results of the assessment.  Because appellant lived in Wisconsin, the testing and assessment were to be done in that state.

            In April 1999, a probation agent filed a probation-violation report alleging that appellant refused to complete a sex-offender assessment, failed to report to his agent, and failed to write an apology letter.  A warrant was issued by Benton County District Court on May 3, 1999.  Because Wisconsin authorities did not act on the warrant, it remained outstanding.  In 2004, after being notified that Minnesota was initiating extradition proceedings, appellant contacted Minnesota authorities and indicated his willingness to comply with the terms of his probation. 

            In November 2004, appellant filed a motion to withdraw his guilty plea.  In support of his motion, appellant submitted affidavits reciting details of how, in an unrelated proceeding, the victim falsely orchestrated a claim that he sexually molested their daughter and that the allegations did not result in criminal charges or child protection action.  Appellant argued that those false charges by the victim indicated her instability and undermined her credibility in the instant proceeding, and that it would be manifestly unjust to allow his plea to stand.  Appellant also argued that he should be permitted to withdraw his plea because the probation requirement that he participate in an assessment and possibly treatment, which may require that he admit wrongdoing, was inconsistent with his ability to maintain his innocence as allowed by the Alford plea. 

            The district court denied appellant’s motion and he appeals. 

D E C I S I O N

 

            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  A reviewing court will reverse the district court’s decision not to permit withdrawal of a guilty plea only if the district court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998). 

I.

            The first issue is whether the district court abused its discretion in denying appellant’s request to withdraw his guilty plea.  Withdrawal of a guilty plea is permitted “upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.  Such a motion is not barred solely because it is made after sentence.”  Minn. R. Crim. P. 15.05, subd. 1.  There is a manifest injustice if the plea was not accurate, voluntary, and intelligent.  State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004).

A.  Plea Not Intelligent

            Appellant argues that his plea was not intelligent because he was not aware that he would later be forced to admit his guilt or face execution of his stayed sentence.[1]  For a guilty plea to be intelligent, the defendant must be aware of the “direct” consequences of the plea, meaning “those which flow definitely, immediately, and automatically from the guilty plea–the maximum sentence and any fine to be imposed.”  Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998).  In rejecting a request to set aside a plea, the Alanis court held that deportation is a collateral consequence, rather than a direct consequence, of a guilty plea because it is not definite, immediate or automatic.  The supreme court said, “Before a resident alien such as Alanis can be deported, the INS must exercise its discretion to commence deportation proceedings and, prior to deportation, there are various administrative procedures which must be followed.”  Id. at 578-79. 

            Here, appellant argues that he was not aware that he would have to admit his guilt in treatment.  For a situation to be a direct consequence of a plea, it should definitely, immediately, and automatically result from the plea.  See id. at 578.  Because appellant has not yet completed an assessment, it is not definite that he will be required to complete treatment.  It is not even certain that an admission of guilt would be a requirement of the treatment that appellant might be ordered to complete.  We also note that the record is clear that in entering his Alford plea, appellant knew that a sex-offender assessment was required, that he knew such an assessment might recommend treatment, and that he should have also known that treatment might include admitting his offense.  In these circumstances, we conclude the district court did not abuse its discretion in rejecting appellant’s claim that his guilty plea involved unforeseeable and unknowable requirements that qualify the plea for withdrawal as not being intelligent.

B.  New Evidence

            Appellant next argues that a manifest injustice exists because of new evidence he has discovered since his plea.  In general, for newly discovered evidence to form the basis of postconviction relief, a defendant must prove

(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.

 

Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). 

            Here, appellant produced evidence that after his conviction, the victim falsely alleged that he had subsequently abused their daughter.  Because this evidence is not related to this case and occurred several years after the alleged sexual assault on the victim, we find it insufficiently persuasive to create a manifest injustice in the case before us.  See id.; see also Dale v. State, 535 N.W.2d 619, 622 (Minn. 1995) (holding that newly discovered evidence that did not bear on what happened between the defendant and the victim, and that was doubtful and cumulative, was not a basis for a new trial); State v. Coulthard, 379 N.W.2d 623, 626 (Minn. App. 1985) (holding that newly discovered evidence that would only impeach victim’s credibility and could have been discovered earlier was not a basis for a new trial), review denied (Minn. Jan. 31, 1986).

C.  Timing

            Appellant finally argues that his motion is not precluded by delay.  “[T]he timeliness of a petition to withdraw a guilty plea is a relevant consideration in determining whether that relief should be granted.”  James v. State, 699 N.W.2d 723, 728 (Minn. 2005).  Deliberate and inexcusable delay can be the basis for the denial of relief.  Id.  The Minnesota Supreme Court has held that an appellant who delayed bringing a postconviction petition for 15 years in order to avoid extradition to Canada, where he anticipated being subject to punishment for crimes he committed there, was not entitled to relief.  McMaster v. State, 551 N.W.2d 218, 219 (Minn. 1996). 

            Appellant partially explains his six-year delay in bringing this motion to withdraw his guilty plea by reference to the recently discovered evidence.  We recognize that this evidence is recent.  However, we have not accepted that that evidence establishes a manifest injustice.  The other basis for appellant’s motion is his objection to evaluation for treatment.  That basis for challenging his plea should have been obvious in 1998.  Rather than seeking to withdraw his plea in a timely fashion, it appears that appellant has been avoiding a warrant and only brought this motion when it appeared that extradition to Minnesota was imminent.  The district court did not abuse its discretion in considering delay as a factor in denying appellant’s motion.

II.

            The second issue is whether we should strike portions of appellant’s brief and appendix.  Appellate courts may not consider matters outside the record on appeal.  See Minn. R. Civ. App. P. 110.01 (limiting the record on appeal to papers filed in district court, exhibits, and transcript).  On pages 63-71 of his appendix, appellant submitted a number of documents regarding child-abuse investigations and custody determinations that allegedly demonstrate the victim’s lack of credibility in bringing the charges against appellant.  Because these documents were not a part of the district court file, respondent’s motion to strike these pages is granted.  For the same reason, appellant’s reference on page 2 of his brief to the letter from the Texas Department of Family and Protective Services and appellant’s reference on page 5 of his brief to the victim being in jail and having a criminal history are also outside the record and are stricken. 

            Affirmed; motion granted.