A06-272

Mary Ann Cannon, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed January 2, 2007

Affirmed

Hudson, Judge

Washington County District Court

File No. K6-02-2565

Mary Ann Cannon, 2969 Jordan Court, Woodbury, Minnesota 55125 (pro se appellant)

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

Doug Johnson, Washington County Attorney, Heather Pipenhagen, Assistant County Attorney, 14949 Upper 62nd Street North, P.O. Box 6, Stillwater, Minnesota 55082-0006 (for respondent)

Considered and decided by Shumaker, Presiding Judge; Minge, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Appellant argues that the district court abused its discretion when it denied her request for early release from probation because (1) her sentence and conviction violate her constitutional rights and the laws of Minnesota and the United States; (2) the district court did not make findings regarding the reasons it denied appellant’s motion; (3) the district court misrepresented the plea agreement; (4) the district court denied appellant the opportunity to present a defense; (5) the district court violated the terms of the plea agreement; (6) the district court refused to hear and consider the evidence of appellant’s case; (7) the district court is biased against appellant and that bias is reflected in its rulings; and (8) she relied on the district court’s “promise” when she entered the guilty plea. We affirm.

FACTS

Appellant Mary Ann Cannon pleaded guilty to and was convicted of second-degree assault in November 2002. Appellant was sentenced on January 10, 2003, pursuant to a plea agreement. The terms of the plea agreement included 200 hours of community work service, a $300 fine, anger-management and psychological evaluations, and seven years of probation. On January 17, 2003, appellant appeared before the district court for “clarification” of her sentence, during which the following exchange took place:

Appellant: Your Honor, could you just tell me one more time why I am being sentenced to seven years probation?

The Court: Because of the nature of the offense, Ms. Cannon. But if you follow through on these terms, you get the community work service done, you pay the fine, you remain law-abiding, you have no problems with the terms of probation, get the anger management evaluation, you either—if they say no treatment is required, no classes are required, that would satisfy it; if they say you need to do some classes and you do those classes, and the State of Georgia, your place of residence recommends an early discharge from probation, you get an early discharge from probation.

(Emphasis added.) The district court subsequently amended appellant’s sentence by eliminating the requirement that she obtain a psychological evaluation and by specifying the time in which she needed to pay her fine and complete her community work service. No further modifications were made to appellant’s sentence.

Georgia, appellant’s state of residence, released her from probation in January 2005. On February 10, 2005, appellant appeared before the Washington County district court and requested early discharge from probation. The district court issued an order that same day denying her request. On February 24, 2005, appellant filed a motion for reconsideration with the district court. The district court held a hearing on March 2, 2005, and denied her request. On December 1, 2005, appellant filed another motion requesting early discharge from probation. The district court held a hearing on that motion on January 12, 2006, and denied her motion orally. On February 3, 2006, appellant filed a “Motion for Appeal Decision in the Matter of Early Release from Probation.” The district court denied appellant’s motion on February 6, 2006, without a hearing. This appeal follows.

D E C I S I O N

Appellant argues that at the January 17, 2003 hearing, the district court promised her an early release from probation if certain conditions were met. She contends that those conditions have been met, and by refusing to release her from probation, the district court is violating the plea agreement. She also argues that she would not have agreed to the plea agreement but for the alleged promises made by the court and that she is entitled to withdraw her guilty plea or have the probationary term vacated.

This court “review[s] a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record” and “afford[s] great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted). “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Id. When determining whether there is sufficient evidentiary support to sustain a postconviction court’s findings, appellate courts “are not limited to the reasoning of the postconviction court, and [appellate courts] can affirm the denial of postconviction relief on grounds other than those on which the postconviction court relied.” Dukes v. State, 718 N.W.2d 920, 921–22 (Minn. 2006).

Appellant’s arguments regarding the constitutionality and legality of her sentence, the district court’s alleged denial of her opportunity to present a defense, the district court’s refusal to hear and consider evidence, and the district court’s alleged bias are procedurally barred because they were not argued before the district court. Therefore, we decline to address those issues. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (holding that generally, this court will not consider issues not argued before the district court).

Appellant’s remaining arguments are meritless. First, appellant argues that the district court abused its discretion by failing to make findings articulating the reasons for denial of appellant’s motion, but she cites no legal authority to support her argument. Assignment of error based on “mere assertion” and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).

Next, appellant argues that she would not have agreed to the plea agreement but for the district court’s promise that she would get an early release from her seven-year probationary term and that the district court misrepresented the plea agreement. However, the record does not contain any indication that early release from probation was contemplated at either the time appellant pleaded guilty or at the time she was sentenced. Appellant pleaded guilty and agreed to the plea agreement before the alleged “promise” was made by the district court, and she has not shown that that promise influenced her decision to plead guilty.

Appellant also argues that the district court violated the plea agreement. When determining whether a plea agreement has been violated, courts look at “what the parties to [the] plea bargain reasonably understood to be the terms of the agreement.” State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (quotation omitted). “What the parties agreed to involves an issue of fact to be resolved by the district court. Issues involving interpretation and enforcement of plea agreements, however, are issues of law that we review de novo.” Id. (citation omitted). Here, the district court determined that the plea agreement did not include a promise to discharge appellant from probation immediately after she was released by Georgia.[1] Since the plea agreement did not contain a provision that guaranteed appellant early release from probation, the district court did not violate the plea agreement when it denied her request for early release. Termination of appellant’s probationary term at any time before 2010 would constitute early release, and it is still within the district court’s discretion to do this.

Appellant also argues that the district court’s denial of her motion was influenced by a factually inaccurate report from a probation officer. She alleges no facts and cites no legal authority to support this argument; therefore it is waived. Modern Recycling, Inc., 558 N.W.2d at 772.

Finally, appellant argues that she should be allowed to withdraw her guilty plea now because had she realized that the early release from probation was not guaranteed, she would have withdrawn her guilty plea at the January 17, 2003 hearing. A criminal defendant has no absolute right to withdraw a plea of guilty once it has been entered. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). There are two grounds upon which a court may base its decision to allow a criminal defendant to withdraw his or her guilty plea. State v. Abdisalan, 661 N.W.2d 691, 693 (Minn. App. 2003) (citing Minn. R. Crim. P. 15.05), review denied (Minn. Aug. 19, 2003). The first “requires that the defendant present proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” Id. (quotation omitted). The second basis “is the court’s determination, upon considering the reasons for the [motion to withdraw a guilty plea] and any prejudice to the prosecution that it is fair and just to allow the withdrawal.” Id. at 694 (quotation omitted). The record indicates that appellant accepted the plea agreement and pleaded guilty before learning of the possibility of early release from probation. Appellant has alleged no facts suggesting that she would have been entitled to withdraw her guilty plea under either standard, either at this time or in 2003.

We conclude that the district court did not abuse its discretion when it denied appellant’s motion for early release from probation.

Affirmed.

[1] The district court observed that appellant has misconstrued the district court’s language from the January 17, 2003 “clarification hearing” regarding “early” discharge from probation to automatically mean “immediate” discharge from probation.