This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1547

 

State of Minnesota,

Respondent,

 

vs.

 

Christopher Olds,

Appellant.

 

Filed August 14, 2007

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. K3-05-3431

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

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

 

            Considered and decided by Wright, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Christopher Olds challenges the district court’s denial of his motion to withdraw his guilty plea, arguing that the district court made inadequate findings on the record regarding his ineffective-assistance-of-counsel claim and abused its discretion by failing to offer appellant the opportunity to seek new counsel.  We affirm.

D E C I S I O N

            On February 6, 2006, appellant entered a plea agreement in which he would plead guilty to five charges stemming from four separate incidents, the sentences would run concurrently with a maximum sentence of 68 months, and two pending charges would be dismissed.  On May 19, 2006, appellant made a motion to withdraw his guilty plea, apparently having contacted the district court earlier ex parte and pro se with the same request.  The district court denied appellant’s motion.

            Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  This court reviews the denial of a motion to withdraw a guilty plea for an abuse of discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  The applicable standard for determining whether a guilty plea may be withdrawn depends on the stage of the proceedings when the motion is made.  Before sentencing, a defendant has the burden of showing that “fair and just” reasons for withdrawal of the guilty plea exist, with consideration of “any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.”  Minn. R. Crim. P. 15.05, subd. 2.  “Underlying the rule is the notion that giving a defendant an absolute right to withdraw a plea before sentenc[ing] would undermine the integrity of the plea-taking process.”  Kim, 434 N.W.2d at 266. 

            Here, appellant first argues that the district court abused its discretion by not making adequate findings on the record.  Specifically, appellant alleges that the district court should have made findings regarding his claim that he should be allowed to withdraw his plea because he had ineffective assistance of counsel.  But appellant points to no authority that requires the district court to make any findings on the record.  Moreover, the record to which appellant directs this court does not support his contention that he made an ineffective-assistance-of-counsel claim to the district court.  Rather, the record shows that appellant argued that the victims were engaged in a conspiracy to convict him, the pressure of the many pending charges encouraged him to enter into the plea agreement, and he did not fully understand the agreement.

            The record of the plea hearing indicates that after appellant pleaded guilty to two of the charges, the prosecution alerted appellant that he had misunderstood the plea and that the other pending charges would not be dismissed.  The district court allowed a recess for the parties to discuss and possibly develop a new plea agreement, which they did. 

            The parties agreed that, in addition to the two charges appellant had already pleaded to, he would plead guilty to three additional charges, all sentences would run concurrently, the maximum sentence would be 68 months regardless of appellant’s criminal history score, and two pending charges would be dismissed.  After the recess, appellant admitted on the record, following a recitation of which charges would be pleaded to and which would be dismissed, that he understood the plea agreement.  He proceeded to plead guilty to three additional charges.  He admitted that he had had enough time to talk to his attorney, he felt “pretty clear-headed” on that day, and making the plea was what he wanted to do. 

            In addition, even if appellant’s argument at sentencing is construed as a claim of ineffective assistance of counsel, the claim is without merit.  A party alleging ineffective assistance of counsel must first show that counsel’s performance was deficient, that is, it “fell below an objective standard of reasonableness.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2068 (1984)).  A strong presumption exists that counsel’s performance fell within a wide range of reasonable assistance.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  This court then considers whether the counsel’s deficient performance prejudiced the defendant’s case.  State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).  To show prejudice, a party must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. 2068).  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id.  Thus, appellant must show that there is a reasonable probability that but for his counsel’s alleged errors he would not have pleaded guilty. 

            Here, appellant does no more than make vague references to alleged conversations between himself and his attorney while expressing his general wish to withdraw his guilty plea.  Appellant alleges at sentencing that he did not understand the Alford plea; but he stated on the record at the plea hearing that he did understand.  He alleges at sentencing that he did not want to enter the plea; but at the plea hearing he stated that he wanted to enter the plea.  He alleges that he did not understand the charges against him at sentencing; but he pleaded guilty to each one individually at the plea hearing. 

            Appellant has not met the burden of showing he received ineffective assistance of counsel because he has not shown that, but for his counsel’s alleged errors, he would not have pleaded guilty.  And this court gives deference to the observations and assessment of trustworthiness made by the district court in determining whether a guilty plea was valid.  State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (Minn. June 11, 1997).  Here, the same district court judge presided over the plea hearing and sentencing and he stated that he remembered that day “very clearly.”  We conclude that the district court did not abuse its discretion by not addressing appellant’s ineffective-assistance-of-counsel claim on the record. 

            Appellant also argues that the district court abused its discretion by not offering him the opportunity to replace his counsel.  Appellant relies on State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991), for the proposition that the district court has a duty to conduct a hearing to determine whether a defendant who claims his attorney coerced him into the plea agreement was truly coerced.  But in Kaiser, the district court had sworn affidavits from the defendant and the attorney attesting to the coercion.  Id. at 318-19.  Here, appellant made passing comments that do not unambiguously indicate that appellant was coerced by his attorney to enter the plea agreement.  Appellant argues that the district court should have interpreted his vague statements as both a claim of ineffective assistance of counsel and a claim of manifest injustice due to coercion by counsel.  This argument is not supported by the record.  Based on the record before us, we conclude that the district court did not abuse its discretion in denying appellant’s request to withdraw his guilty plea. 

            Affirmed.