This opinion will be unpublished and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

A05-1529

 

 

State of Minnesota,

Respondent,

 

vs.

 

Chao Lee,

Appellant.

 

 

Filed October 10, 2006

Affirmed

Lansing, Judge

 

 

Ramsey County District Court

File No. K3-03-4400

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

John Stuart, State Public Defender, Philip Marron, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from the denial of his presentence motion to withdraw his guilty plea, Chao Lee challenges the district court’s determination that he did not present a fair and just basis for withdrawal.  Lee also appeals directly from his conviction, contending that his plea lacks a sufficient factual basis.  Because the district court did not abuse its discretion in denying Lee’s motion and because the record evinces facts adequate to support Lee’s conviction, we affirm.

F A C T S

            Chao Lee entered a negotiated plea of guilty to aiding and abetting intentional second-degree murder in violation of Minn. Stat. §§ 609.19, subd. 1(1); 609.05 (2002).  The plea agreement stipulated that Lee would receive a 204-month sentence, a downward durational departure from the 306-month presumptive sentence.  At the plea hearing, Lee acknowledged that he was able to make a knowing plea of guilty; he was not pressured into entering his plea; he had enough time to consult with his attorneys about pleading guilty; he was satisfied with his representation; and he understood he was surrendering his right to a jury trial.

            On examination to establish a factual basis, Lee testified to the events surrounding the murder.  He explained that on the evening of November 27, 2003, the victim, Xing Moua, and others assaulted Lee’s friends Jon Vang and Pheng Song.  Later that evening, Lee, Vang, Song, and others met at a restaurant and agreed to go to Moua’s apartment and retaliate.  Lee admitted he knew that Song invariably carried a knife.  Song, Vang, Lee, and five others proceeded to Moua’s address where they found Moua getting out of his car in the apartment parking lot.  A fight erupted when Moua swung at Song and missed, and Lee punched Moua in the face.  In the melee that followed, Song and three others set upon Moua while Vang and Lee ran to engage two other individuals who were attempting to come to Moua’s defense.  Lee stated that he turned to leave when he saw Vang brandish a knife, and, as Lee fled, he saw Moua lying in a large pool of blood.  On December 1, 2003, Moua died of injuries sustained in the fight, including twenty-three stab wounds.

            At the close of the plea hearing, the district court accepted Lee’s guilty plea and scheduled a sentencing date.  Before sentencing, Lee filed a motion to withdraw his plea.  The district court heard arguments at the sentencing hearing, denied Lee’s motion to withdraw his guilty plea, and sentenced him to the stipulated 204 months.  Lee now appeals the district court’s denial of his plea-withdrawal motion and directly appeals from his conviction, arguing that his plea lacks an adequate factual basis.

D E C I S I O N

I

            A defendant does not have an absolute right to withdraw a guilty plea.  Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).  Under Rule 15.05, subd. 2, of the Minnesota Rules of Criminal Procedure, the district court may allow a criminal defendant to withdraw his guilty plea before sentencing if to do so would be fair and just.  Whether to allow withdrawal under this standard is “left to the sound discretion of the trial court, and it will be reversed only in the rare case in which the appellate court can fairly conclude  that the trial court abused its discretion.”  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). 

            Requiring a fair and just basis as a threshold for presentence plea withdrawal protects against a practice of withdrawing a guilty plea “for any reason or without good reason at any time before” sentencing.  Id. If no standard is required, the plea-taking process could become “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.  In applying the fair and just standard, “the [district] court is to give due consideration not just to the reasons advanced by the defendant but to any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.”  Id. 

            Lee presented the district court with four arguments for granting his plea-withdrawal motion.  Lee argued that he met the “fair and just” standard because (1) codefendants who pleaded guilty before and after Lee’s own plea received shorter sentences; (2) Lee decided he was willing to risk a longer sentence by placing his fate in the hands of a jury; (3) Lee had received threats from Moua’s incarcerated associates; and (4) the state would not be prejudiced.  The district court determined that these arguments did not present a fair and just basis for allowing Lee to withdraw his plea.  We discern no abuse of discretion in that determination.

            Lee’s first argument is undermined by the fact that before he entered his guilty plea he knew that Vang, who Lee considered the most culpable codefendant,had pleaded guilty and received a lesser sentence.  Furthermore, it is not at all clear that Vang was more culpable.  The record indicates that at his plea hearing, Vang testified that Lee had also stabbed Moua.  Lee has failed to establish a factual basis for his argument that the prosecutor agreed to discriminatory sentencing or that the district court imposed a more lenient sentence on a more culpable codefendant.

            Lee’s second argument is also unpersuasive.  Lee knew he was foregoing his right to a jury trial when he entered his plea.  Although Lee may well have second thoughts about the finality of a decision that results in a seventeen-year prison sentence, finality is nonetheless necessary to prevent a revolving continuance that would make trial dates contingent on when a “defendant might see fit to come in and make a motion to withdraw his plea.”  Id.  More than a change of heart is needed to reinstate intelligently surrendered rights if the plea-taking process is to fulfill its purpose in the effective administration of justice. 

            Lee’s third argument is misplaced.  Allowing Lee to withdraw his plea would not address his concern about threats he has reportedly received from Moua’s imprisoned allies.  There is no evidence that these threats turn on whether he is imprisoned as the result of a plea or a trial. 

            Lee’s final argument, that withdrawal of his plea would not prejudice the state, is disputed.  But a resolution of that dispute is unnecessary to the disposition of Lee’s appeal.  Prejudice to the state acts as a counterbalance to the legitimate reasons for withdrawal offered by the defendant.  Because Lee did not provide a fair and just reason to support his plea-withdrawal motion, the district court was not required to consider the degree to which the state would be prejudiced if the motion were granted.

            The district court considered each of Lee’s arguments in reaching its determination.  Taken together, Lee’s arguments justify the district court’s conclusion that Lee’s request for withdrawal of his plea rests on his dissatisfaction with the terms of his plea agreement and his hope that he would receive a better result with a jury trial.  More compelling reasons are necessary to satisfy the “fair and just” standard; the district court did not abuse its discretion in denying the motion for plea withdrawal.

II

            “A defendant is free to simply appeal directly from a judgment of conviction and contend that the record made at the time the plea was entered is inadequate . . . .”  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).  To be constitutionally valid, a guilty plea must be accurate, voluntary, and intelligent.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  The accuracy of a plea is established by “sufficient facts on the record to support a conclusion that defendant’s conduct falls within the charge to which he desires to plead guilty.”  State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003) (quotation omitted). 

            The second-degree murder statute provides, in relevant part, that the crime is committed when a person “causes the death of a human being with intent to effect the death of that person or another, but without premeditation . . . .”  Minn. Stat. § 609.19, subd. 1(1) (2002).  The aiding-and-abetting statute adds that a person is liable (1) for the crimes of another if the person “intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime[,]” and (2) for any other crime “committed in pursuance of the intended crime if reasonably foreseeable by the person as a probable consequence of committing . . . the crime intended.”  Minn. Stat. § 609.05, subds. 1-2 (2002). 

            Lee admitted to assaulting Moua.  Thus, the remaining inquiry is whether Moua’s murder was (1) committed in pursuance of the assault, and (2) reasonably foreseeable as a probable consequence of the assault.  See State v. Merrill, 428 N.W.2d 361, 369 (Minn. 1988) (concluding that it was reasonably foreseeable that victim’s murder was probable consequence of appellant’s commission of aggravated robbery).

            Lee argues that the facts elicited at his plea hearing do not show Moua’s murder was reasonably foreseeable because Lee did not admit to stabbing Moua, intending Moua’s death, having a knife, or knowing that a knife was present before he saw Vang brandishing a knife.  Lee also contends that his admission to aiding and abetting and participating in Moua’s murder was the result of leading questions.

            The plea testimony clearly establishes that the murder was in pursuance of the assault.  In Lee’s own words, his friends started beating and ultimately stabbing Moua after Lee punched him in the face.  Moua’s murder was thus an escalation of the assault itself. 

            The plea testimony also shows that Moua’s murder was reasonably foreseeable.  Lee knew Moua had assaulted Song earlier in the evening, he knew Song carried knives, and he knew Song’s purpose in locating Moua was to retaliate.  On those facts, Moua’s murder was entirely foreseeable.

            Lee’s remaining arguments do not affect the constitutional validity of his plea.  Lee knew Song carried knives; thus the point at which he discovered that Vang was also armed is not material.  And the use of leading questions to elicit a factual basis is immaterial if a plea is voluntary and intelligent on the whole.  Perkins v. State, 559 N.W.2d 678, 689 (Minn. 1997).  Neither Lee’s argument nor the plea transcript provides a basis for concluding that his plea was not voluntary and intelligent.  

            Lee failed to offer compelling reasons to support his motion to withdraw his guilty plea, and the district court’s denial of that motion was not an abuse of discretion.  The transcript of Lee’s plea hearing provides ample factual support for each of the elements necessary to establish the crime to which he pleaded guilty; Lee’s conviction did not lack a factual basis.

            Affirmed.