This opinion will be unpublished and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

A05-1876

 

State of Minnesota,

Respondent,

 

vs.

 

Israel Ray Gaitan, Jr.,

Appellant.

 

Filed October 31, 2006

Affirmed

Willis, Judge

 

Washington County District Court

File No. K3-00-4785

 

 

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

 

Doug Johnson, Washington County Attorney, Robert J. Molstad, Assistant County Attorney, 14949 62nd Street North, P.O. Box 6, Stillwater, MN  55082-0006 (for respondent)

 

Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN  55121 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Willis, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the district court’s denial of his motion to withdraw his guilty plea.  Appellant argues that the district court abused its discretion by denying his motion because (1) the state violated the plea agreement when appellant, after being sent to New Mexico in accordance with the agreement, was transferred back to the Minnesota prison system; (2) his attorney made an unqualified promise that appellant would never be returned to Minnesota; and (3) his attorney provided ineffective assistance of counsel.  We affirm.

FACTS

            Appellant Israel Ray Gaitan, Jr. appeals from the district court’s denial of his motion to withdraw his plea of guilty to aiding and abetting second-degree murder.  The facts and procedural history of this case are not disputed.  In August 2000, Gaitan was charged by indictment with the first-degree murder of a fellow inmate at the Minnesota Correctional Facility-Stillwater.  Gaitan pleaded guilty under a plea agreement with the state that contained the following provisions:  (1) Gaitan offered an Alford plea of guilty to aiding and abetting second-degree unintentional murder, and he agreed to a sentence of 169 months that would run concurrently with the sentence he was then serving; (2) certain items of Gaitan’s personal property that were taken during the investigation and search of his cell would be returned to him; (3) all fines and fees would be waived; (4) Gaitan would be transferred to a state correctional facility in New Mexico, Wyoming, or Montana within 45 days after the date of the plea hearing; (5) “the state would play no part now or in the future seeking [Gaitan’s] return to the State of Minnesota”; and (6) “should one or more of the elements of the agreement not be met, [Gaitan] reserves the right to withdraw his plea and proceed to trial.”  Gaitan was transferred to a California prison and then to a prison in New Mexico.  In January 2005, Gaitan was transferred back to Minnesota.  Both the prosecuting attorney and Gaitan’s defense attorney agreed that leaving Minnesota permanently was Gaitan’s primary objective in the plea agreement.  After Gaitan’s return to Minnesota, the Department of Corrections sent out an Interstate Transfer Request attempting to place Gaitan in another state, but no state accepted him. 

            In April 2005, Gaitan moved to withdraw his guilty plea.  The district court denied the motion, and this appeal follows.

D E C I S I O N

A district court’s denial of a motion to withdraw a guilty plea is reviewed for an abuse of discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  “Determining what the parties agreed to in a plea bargain is a factual inquiry for the postconviction court to resolve.”  State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004).  But the interpretation and enforcement of plea agreements involve questions of law, which are reviewed de novo.  Id. 

Once a guilty plea is entered, a criminal defendant has no absolute right to withdraw that plea.  Id.  But a defendant can withdraw “a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1.  “A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent.”  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  The requirement that a plea be accurate protects the defendant from pleading guilty to a more serious offense than he could be convicted of at trial.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  The requirement that a plea be voluntary protects the defendant from pleading guilty because of improper pressures.  Id.  And the requirement that a plea be intelligent ensures that the defendant “understands the charges, understands the rights that he is waiving by pleading guilty, and understands the consequences of the plea.”  Id.

Gaitan argues that his guilty plea was involuntary because “it was induced by a promise the state failed to honor.”  When a guilty plea is induced by a government promise, such a promise must be fulfilled or due process is violated.  State v. Wukawitz, 662 N.W.2d 517, 522 (Minn. 2003).  Gaitan acknowledges that “the plea agreement as set forth in court was that the state would not seek Mr. Gaitan’s return to Minnesota,” and he does not assert that the state sought his return to Minnesota.  Rather, Gaitan argues that “the essence of the agreement . . . was that he would not be returned to Minnesota at all and that if he was, he would be allowed to withdraw his plea.” 

The district court found that Gaitan’s plea agreement included the condition that the state of Minnesota would play no part in seeking Gaitan’s return to Minnesota.  The district court found that there was no indication that the state of Minnesota “actively sought the return” of Gaitan to Minnesota or played any part in seeking Gaitan’s return. 

            The state asserts that Gaitan cannot “contest that the State abided by the literal language of the plea agreement” and that Gaitan “incorrectly recasts the plain language of the agreement.”  The attorney who prosecuted Gaitan submitted an affidavit acknowledging that “[l]eaving the State of Minnesota and not returning was Mr. Gaitan’s primary objective in the plea agreement.”  But the prosecutor’s affidavit does not state that he promised that Gaitan would never be returned to Minnesota.  As the state points out, “[t]he State of Minnesota could not have guaranteed that another State would accept [Gaitan] or continue to hold him indefinitely.”  The record also shows that the state attempted to find another state to accept Gaitan after he was returned to Minnesota from New Mexico.  

            The plea agreement reflects no promise by the state that Gaitan would never be returned to Minnesota.  Rather, the agreement provides that the state would not seek Gaitan’s return to Minnesota.  Further, Gaitan testified at his plea hearing that no promises had been made to him other than those made in open court and reflected in the plea agreement.  The record supports the district court’s finding that the state of Minnesota did not seek Gaitan’s return.  We conclude, therefore, that Gaitan’s transfer to Minnesota did not violate any promise made by the state to Gaitan.

            Gaitan next argues, for the first time on appeal, that “even if the court did not err in finding that the state was not directly responsible for Gaitan’s return to Minnesota, Gaitan should still have been allowed to withdraw his plea because his lawyer made an unqualified promise that was not fulfilled.”  If a defendant’s attorney makes an unqualified promise in anticipation of a guilty plea, then the defendant should be permitted to withdraw his plea if that promise is unfulfilled.  Trott, 338 N.W.2d at 252.

Issues that are not raised before the district court generally will not be considered on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Because Gaitan failed to argue this issue before the district court, we will not consider this issue on appeal.[1] 

Finally, Gaitan argues that he should be allowed to withdraw his guilty plea because his attorney’s representation was ineffective.  Gaitan argues that it was unreasonable for his lawyer to make him a promise that “caused him to plead guilty but not ensure that the promise would be kept.”[2]  Gaitan also argues that there is a reasonable possibility that but for his attorney’s ineffectiveness, he would have rejected the plea bargain. 

A defendant’s guilty plea is rendered involuntary by the ineffective assistance of counsel.  State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).  This court reviews a postconviction court’s decision on a claim for ineffective assistance of counsel under an abuse-of-discretion standard.  See State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). 

To prove ineffective assistance of counsel, Gaitan must show that (1) his attorney’s representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that but for his attorney’s errors, the outcome of the proceedings would have been different.  See Alanis, 583 N.W.2d at 577 (articulating the test in Strickland v. Washington, 466 U.S. 668 (1984)). 

Here, the district court concluded that (1) under the plea agreement, the state would not seek Gaitan’s return to Minnesota; (2) the state did not play a part in seeking Gaitan’s return; and (3) Gaitan’s attorney’s representation did not perpetrate a manifest injustice under these circumstances. 

The state argues that Gaitan’s attorney had no obligation to inform Gaitan of the possibility that he could be transferred back to Minnesota because “New Mexico’s act of transferring [Gaitan to] Minnesota was a collateral consequence of the plea agreement.”  Defense attorneys have no obligation to advise defendants of possible collateral consequences of a guilty plea.  Alanis, 583 N.W.2d at 579.  A direct consequence of a guilty plea, in contrast to a collateral consequence, flows “definitely, immediately, and automatically from the guilty plea — the maximum sentence and any fine to be imposed.”  Id. at 578 (concluding that deportation is a collateral consequence, not a direct consequence, of a guilty plea).  The possibility of Gaitan’s transfer back to Minnesota does not flow definitely, immediately, or automatically from his guilty plea.  Therefore, Gaitan’s transfer to Minnesota was a collateral consequence of his guilty plea, and Gaitan’s attorney was not obligated to warn him of this possibility. 

But Gaitan does not argue merely that his attorney failed to warn him of a possible consequence of his guilty plea.  Rather, Gaitan argues that his attorney misinformed him that he would not be returned to Minnesota.  A defendant may show ineffective assistance of counsel if he pleaded guilty “as a direct consequence of his counsel’s erroneous advice and . . . but for this advice, the outcome of the plea process would have been different.”  See Garmon v. Lockhart, 938 F.2d 120, 121 (8th Cir. 1991) (quotation omitted).  Again, at his plea hearing, Gaitan testified that he understood the terms of the plea agreement; he testified that no one made any promises to him other than those made in open court and appearing in the plea agreement.  This record supports the district court’s conclusion that Gaitan’s attorney’s representation did not perpetrate a manifest injustice.  The district court did not abuse its discretion by denying Gaitan’s motion to withdraw his guilty plea.

Affirmed.