This opinion will be unpublished and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

A06-1792

 

 

Scott Anthony Black, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed September 4, 2007

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. 05014847

 

John Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

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

 

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Muehlberg, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Scott Black pleaded guilty to felony fifth-degree assault in 2005.  One year later, he petitioned to withdraw his guilty plea.  Because the district court applied the correct standard in evaluating Black’s request for plea withdrawal and because Black was not denied effective assistance of counsel, we affirm.

F A C T S

            The state charged Scott Black with felony fifth-degree assault following his arrest for domestic violence in March 2005.  Black signed a plea petition waiving his trial rights and stating that he had discussed the petition with his attorney.  As part of his plea, he acknowledged that during a confrontation with his wife he had held her down and yelled at her and that these intentional acts caused her to fear bodily harm.  

            At his sentencing hearing, Black moved to withdraw his guilty plea, but the district court denied his motion.  Black did not appeal his conviction or the accompanying denial of his plea-withdrawal motion. 

            About one year after sentencing, Black filed a petition for postconviction relief.  He alleged that he should be permitted to withdraw his guilty plea because it was coerced by his attorney and because he is innocent.  The district court denied Black’s postconviction-relief petition after determining that plea withdrawal was not necessary to avoid manifest injustice.  The district court also rejected Black’s argument that he received ineffective assistance of counsel.  Black appeals the denial of his postconviction request for plea withdrawal and, in a supplemental pro se brief, he also appeals the district court’s determination that he did not receive ineffective assistance of counsel.  

D E C I S I O N

I

            In denying Black’s postconviction-relief petition, the district court evaluated Black’s motion for plea withdrawal under the standard of “manifest injustice.”  Black argues that the district court should have evaluated his plea-withdrawal request under the “fair and just” standard instead.  When the facts are undisputed, the applicable standard for evaluating a request for plea withdrawal raises an issue of law, which we review de novo.  See Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003) (discussing standard of review in plea-withdrawal cases).

            Minnesota courts apply two separate standards for plea withdrawal.  First, before sentencing, district courts can exercise their discretion to permit plea withdrawal when it would be “fair and just.”  Minn. R. Crim. P. 15.05, subd. 2; Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  Second, at any time—before or after sentencing—a defendant can withdraw his plea if withdrawal is necessary to avoid manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1.

            In this case, Black made two separate motions to withdraw his plea.  He first moved to withdraw his guilty plea on June 3, 2005, before he was sentenced.  Undoubtedly, the “fair and just” standard applied to Black’s first motion.  See State v. Tuttle, 504 N.W.2d 252, 256 (Minn. App. 1993) (applying “fair and just” standard when motion was made before sentencing).  The record does not suggest that the district court applied a different standard.  Black’s right to appeal this conviction—and the accompanying denial of his plea-withdrawal motion—expired in September 2005, ninety days after he was sentenced.  See Minn. R. Crim. P. 28.02, subd. 4(3) (requiring appeal within ninety days of final judgment). 

            Black made a new motion to withdraw his guilty plea on June 16, 2006, approximately nine months after the expiration of his right to appeal the first denial.  This second motion was a request for postconviction relief and is independent of his first plea-withdrawal request.  The “fair and just” standard does not apply to this second motion because it was made almost a year after sentencing.  The district court properly applied the “manifest injustice” standard that applies to a postsentencing request for plea withdrawal.  The distinction between the two standards is based on public policy, which favors finality of criminal judgments.  Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002). 

            Black argues that the “fair and just” standard should apply because he made his original request for plea withdrawal before sentencing.  But defendants should not be permitted to preserve the more lenient “fair and just” standard by simply failing to appeal a conviction that includes the denial of a plea-withdrawal motion.  Permitting Black to collaterally attack the district court’s previous decision would defeat the policy of finality.  Because Black’s second motion to withdraw occurred after sentencing, the district court properly applied the “manifest injustice” standard.

            Black’s plea-withdrawal argument is directed solely to whether the district court applied the correct standard.  He has not argued that the denial of his plea-withdrawal request created a manifest injustice.  We conclude that the district court did not err by applying the manifest-injustice standard to Black’s motion to withdraw his plea.

II

            A defendant is denied effective assistance of counsel if (1) the lawyer’s representation fell below an objective standard of reasonableness and (2) a reasonable probability exists that the outcome would have been different but for the lawyer’s errors.  Zenanko v. State, 688 N.W.2d 861, 865 (Minn. 2004).  The defendant, as the petitioner, has the burden of proof and must rebut the “strong presumption that counsel’s performance fell within a wide range of reasonable assistance.”  Gail v. State, 732 N.W.2d 243, 248 (Minn. 2007).  An evidentiary hearing is required only “if the petitioner alleges facts which, if proven, would entitle the petitioner to the requested relief.”  State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995).  “A court may address . . . the two prongs of the test in any order and may dispose of the claim on one prong without analyzing the other.”  Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006).

            Black has presented no evidence that his attorney’s advice to plead guilty was not based on an objectively reasonable assessment of the evidence.  Black claims that his attorney’s advice was unreasonable because the victim recanted and Black repeatedly proclaimed his innocence.  Black’s argument is not persuasive.  First, Black knew about the victim’s attempted recantation before he entered his plea.  Second, Black does not address the significant amount of additional evidence that includes a citizen’s report, physical evidence of injuries, and the testimony of the police.  See State v. Foreman, 680 N.W.2d 536, 538-39 (Minn. 2004) (finding sufficient evidence to support conviction despite victim’s temporary pretrial recantation).  Black failed to show that his attorney’s performance fell below an objective standard of reasonableness, and the district court properly denied his petition without an evidentiary hearing.

            Affirmed.