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

John M. Stuart, State Public Defender, Susan K. Maki, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.^**

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

Appellant Eric Vera challenges the district court's denial of his motion to withdraw his guilty plea to two counts of criminal sexual conduct in the first degree under Minn. Stat. § 609.342 (1996). We affirm because (1) a mere change of mind after the plea is not a legitimate reason for withdrawal of a guilty plea; (2) appellant pled guilty voluntarily and his attorney did not coerce him to plead guilty; and (3) the state would be prejudiced by the granting of the motion.

The motion to withdraw a guilty plea is left in the sound discretion of the district court, and its decision will not be reversed in the absence of an abuse of discretion. Kim v. State, 434, N.W.2d 263, 266 (Minn. 1989).

Minn.R.Crim.P. 15.05 sets out the bases for withdrawal of a guilty plea:

Subd. 1. To Correct Manifest Injustice. The court shall allow a defendant to 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. Such a motion is not barred solely because it is made after the sentence. If a defendant is allowed to withdraw a plea after sentence, the court shall set aside the judgment and the plea.

Subd. 2. Before Sentence. In its discretion the court may also allow the defendant to withdraw a plea at any time before sentence if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea.

Vera does not contend that withdrawal was necessary to correct a manifest injustice; rather, he argues (1) it is "fair and just" to allow him to withdraw his plea, and (2) he should be allowed to withdraw the plea because he was not guilty of the crimes to which he pled guilty. At the plea hearing, Vera was specifically asked if he sexually penetrated two young children between May and September 1996. He stated that he did. The claim of innocence represents a change of mind on Vera's part since the plea hearing, and a change of mind is not a legitimate reason for withdrawal of a guilty plea. See Kim, 434 N.W.2d at 266 (stating a guilty plea can't be withdrawn without good reason).

Vera also argues there was no adequate factual basis for the guilty plea. He claims that at the plea hearing, he was not questioned as to the specific conduct he engaged in to support his guilty plea. Because the argument was not raised before the district court, we decide not to consider it. Id. at 267 (appellate courts do not ordinarily consider issues raised for the first time on appeal).

Further, Vera argues his trial attorney forced him to plead guilty. This argument is not supported by the record. The record shows that at the plea hearing, Vera was specifically asked if he was entering the guilty plea of his free will. He stated yes, and also acknowledged that nobody pressured him to plead guilty and that he pled guilty because he engaged in sexual penetration with those two children. Moreover, Vera's latest testimony contradicts his earlier testimony at the plea hearing. On issues of witnesses' credibility and their testimony, this court defers to the district court's determination. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992).

Finally, Vera argues that the prosecution would not be prejudiced by the granting of the motion. The state contends it would be prejudiced if appellant's motion were granted because it had released all the witnesses from subpoena in reliance on the plea. In Kim, the supreme court held the state would be prejudiced by the granting of the motion because it released all the witnesses from subpoena after the plea. Kim, 434 N.W.2d at 267. Also, the interests of the young victims lend additional support for the district court's denial of appellant's motion. See id. (holding the district court was justified in considering the interests of the victims when determining whether to grant the motion to withdraw a guilty plea).

Affirmed.