This opinion will be unpublished and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

A05-1531

 

State of Minnesota,

Respondent,

 

vs.

 

Patrick Flores,

Appellant.

 

 

Filed July 11, 2006

Reversed and remanded

Lansing, Judge

 

 

Becker County District Court

File No. K1-04-1448

 

 

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

 

Joseph Evans, Becker County Attorney, Michael D. Fritz, Assistant County Attorney (for respondent)

 

John Stuart, State Public Defender, Richard A. Schmitz, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414(for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Patrick Flores appeals from a conviction of first-degree driving while impaired, arguing that the district court abused its discretion by refusing to grant his motion to withdraw his guilty plea.  The state concedes that the district court’s basis for denying the withdrawal motion is not supported by the record.  In light of this concession and because the record fails to conclusively establish that the plea was intelligently entered, we reverse and remand for further proceedings.

F A C T S

            Responding to two citizen reports of an erratically driven van on Highway 10, a state highway patrol officer located the van and observed it crossing over the fog line as it proceeded along the highway.  The trooper stopped the van and requested that its driver, Patrick Flores, submit to a preliminary breath test.  The test indicated an alcohol concentration of .24, but Flores refused to comply with further testing.  The state charged Flores with first-degree driving while impaired (DWI) and first-degree test refusal.  In February 2005 Flores pleaded guilty to first-degree DWI in exchange for the state’s dismissing the first-degree test refusal.  After the court accepted his plea but before sentencing, Flores filed a motion to withdraw his guilty plea on the ground that he had not understood the mandatory five-year conditional-release term imposed under Minn. Stat. § 169A.276 (2004). 

            During the February 2005 plea hearing, the county attorney told Flores that “the maximum penalty that the [c]ourt can impose for the crime charged here is up to seven years’ imprisonment” and that “as a result of this conviction any future driving under the influence offenses will be considered a felony.”  The district court similarly stated that the plea would expose Flores to a “maximum of seven-years’ imprisonment.”  But neither Flores’s attorney, in explaining the plea agreement, nor the court, in eliciting Flores’s knowledge of the implications of the guilty plea, mentioned or explained the statutory conditional-release requirement.  In the ensuing presentence-investigation report, the corrections agent recommended that Flores be advised of the five-year conditional-release term. 

After the plea hearing, Flores’s attorney wrote a letter to the district court stating that, at the time he entered his plea, Flores had misunderstood how the mandatory conditional release would affect his sentence.  Flores had understood that the conditional release operated like probation and that, if he violated the terms of his conditional release, he would only be subject to the remainder of his presumptive sixty-six-month sentence, not the entire sixty months of the conditional-release term.  Based on this misunderstanding, Flores moved to withdraw his guilty plea.

            At the April 20, 2005 plea-withdrawal hearing, the county attorney opposed the motion, stating that “we went through the rights during the plea.”  The county attorney mistakenly asserted that the five-year conditional-release term was explained to Flores at the plea hearing and that testimony on the record confirmed that Flores’s attorney had previously explained the conditional release to Flores.  The court took the motion under advisement.

            On May 4, 2005, the district court orally denied Flores’s plea-withdrawal motion and found that Flores’s plea was knowingly and freely entered.  The district court stated on the record that Flores had entered a plea consistent with rule 15 of the Minnesota Rules of Criminal Procedure after he was advised of the five-year conditional-release term and that the record contained testimony that Flores’s attorney had explained the conditional release to Flores.  Based on Flores’s past record that included multiple DWI offenses, the district court sentenced Flores to sixty-six months with twenty-two months of supervised release and five years of conditional release. 

Flores appeals from the court’s denial of his plea withdrawal motion.  The state did not submit a brief.  Instead, it submitted a letter, conceding that the district court’s reasons for denying the motion to withdraw were not supported by the record and agreeing that the denial of the plea withdrawal motion should be reversed. 

D E C I S I O N

We will reverse the district court’s determination on a motion to withdraw a guilty plea only if the district court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  “In its discretion the court may . . . allow the defendant to withdraw a plea at any time before sentence if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion.”  Minn. R. Crim. P. 15.05, subd. 2. 

Flores argues that he is entitled to withdraw his guilty plea because the district court did not inform him of the conditional-release term at the time of the plea, and because he was misinformed of the consequence for a violation of conditional release.  Although we disagree with this argument, we agree with Flores and the state that he is entitled to withdraw his guilty plea.

The record contradicts the prosecutor’s assertion and the district court’s finding that Flores was advised of the five-year conditional-release term at the guilty-plea hearing.  But, in stating that he had misinformed Flores of the consequence of violating conditional release, defense counsel necessarily conceded that he had advised Flores of the conditional-release term itself.  Thus, we cannot agree that Flores’s plea was invalid because Flores lacked knowledge of a direct consequence of the guilty plea.  See Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998) (holding that guilty plea must be entered with knowledge of direct consequences of pleading guilty to be intelligently entered); State v. Henthorne, 637 N.W.2d 852, 856 (Minn. App. 2002) (holding that imposition of conditional-release term is direct consequence of guilty plea), review denied (Minn. Mar. 27, 2002).

But we need not decide whether the consequence of violating conditional release is a direct consequence of the guilty plea.  Although ignorance of a direct consequence of the plea would establish a manifest injustice, Flores need not show a manifest injustice in order to withdraw his plea.  Because he moved to withdraw his plea before sentencing, Flores is required only to show that it would be “fair and just” to allow him to withdraw the plea.  See Minn. R. Crim. P. 15.05, subd. 2 (stating conditions for plea withdrawal before sentencing).

The district court erroneously believed that Flores had been informed on the record at the time of the plea that he would be required to serve a conditional-release term.  The district court relied on this assumption and on counsel’s advice to Flores about the conditional-release term when the court refused to allow Flores to withdraw the plea.  But the facts are now undisputed that Flores was not advised on the record and that his counsel’s advice was seriously flawed because it misinformed Flores of the consequence of violating conditional release.

The supreme court has stated that it would be a “rare case” that would warrant reversal of a district court’s refusal to allow withdrawal of the plea before sentencing as “fair and just.”  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  But the record demonstrates that, because of the district court’s incorrect information about the plea-hearing proceedings, it did not have an opportunity to properly exercise its discretion when it denied the motion. 

The state concedes that Flores was misinformed of the maximum sentence he might have to serve.  Flores understood from his attorney, the county attorney, and the district court’s statement at the plea hearing that the statutory maximum sentence was seven years.  Under the statute, however, he could be required to serve, in addition to the sixty-six month sentence imposed, all of the five-year conditional-release term in prison “[n]otwithstanding the statutory maximum sentence.”  Minn. Stat. § 169A.276, subd. 1(d) (2004). 

This series of errors eliminates the basis for denying the motion for plea withdrawal and, in these limited circumstances, equates to an abuse of discretion.  Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.