Alan L. Mitchell, St. Louis County Attorney, John E. DeSanto, Assistant St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Room 501, Duluth, MN 55802 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for respondent)

Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Norton, Judge.[*]

Appellant argues the district court abused its discretion when it refused to allow him to withdraw his plea of guilty to first-degree assault pursuant to Minn. R. Crim. P. 15.05, subd. 2, where appellant asserted his innocence and requested the withdrawal three days after pleading guilty. We affirm.

Appellant was arrested and charged with first-, second-, and third-degree assault. The day before trial was to start, appellant pleaded guilty to first-degree assault. He completed, signed, and filed a Rule 15 petition to enter a plea of guilty. In the petition, appellant agreed to waive any claim of intoxication or that he was under the influence of drugs or medicine and did not know what he was doing at the time of the offense. He also agreed that he was not making any claim of innocence. At the plea hearing, appellant testified that he was agreeing to plead guilty after meeting with his attorney John S. Lind. He stated that he understood the plea agreement; that he had an adequate time to review the plea petition and his rights with Lind; and he had no questions regarding the petition or his rights. Appellant did not dispute that he stabbed Houle with a knife and caused the injury to her neck and he agreed that no one else at the house that night inflicted the injury and that he was the only one who could have done so. The district court accepted appellant's guilty plea.

Three days after he pleaded guilty, appellant wrote the district court, requesting that he be allowed to withdraw his guilty plea. Appellant asserted his innocence and claimed that he pleaded guilty because he felt pressure by his attorney and family to do so. The next day, appellant sent another letter to the district court asking to withdraw his guilty plea. Appellant insisted that his attorney convinced him to plead guilty because of the bad facts of his case.

With the assistance of Lind, appellant filed a motion to withdraw his guilty plea, alleging coercion by defense counsel. Lind then withdrew as appellant's attorney. At the sentencing hearing, the district court denied appellant's motion to withdraw his plea and sentenced him to 81 months imprisonment. Appellant appealed to this court, arguing that he was entitled to an evidentiary hearing on his motion to withdraw his plea. This court agreed and remanded the matter for an evidentiary hearing. See State v. Smith, No. C4-97-2083 (Minn. App. June 16, 1998). Following an evidentiary hearing, the district court denied appellant's motion to withdraw his guilty plea. This appeal follows.

A defendant may be permitted to withdraw a guilty plea before sentencing

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.

Minn. R. Crim. P. 15.05, subd. 2. The defendant has the burden of establishing that there is a "fair and just" reason for the court to permit withdrawal of his plea. Kaiser, 469 N.W.2d at 319. The district court's decision to accept a motion to withdraw a guilty plea based on whether "it is fair and just to do so" is a discretionary decision that will only be reversed on appeal if the district court abused its discretion. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

The evidence presented at the evidentiary hearing establishes that: (1) significant factual difficulties are present in appellant's case; (2) Lind met with and advised appellant of his options in light of the factual difficulties; (3) Lind advised appellant that he thought it was in appellant's best interests to plead guilty, but that the decision to accept the guilty plea was ultimately appellant's; (4) appellant completed the Rule 15 plea petition voluntarily; (5) appellant understood the terms of the plea petition at the time he signed it; (6) appellant had the chance to meet with Lind and Smith and Martin to discuss the plea agreement; and (8) appellant accepted the plea agreement, in part, because he wanted to avoid the possibility of receiving a longer prison sentence, including a possible upward departure, if he was convicted following a trial.

Although appellant maintained his innocence up to the time he accepted the plea agreement, he acknowledged that his case is beset with significant factual problems. Houle and her boyfriend identified appellant as the attacker. The medical evidence established that Houle would have died had she not received immediate medical attention. The other two witnesses, Smith and Martin, were uncooperative and would likely have been little help to appellant. Given the significant factual problems with the case, Lind advised appellant that, in his opinion, it was in appellant's best interest to accept the plea agreement. Lind advised appellant that if the case went to trial and resulted in a conviction, appellant would receive a longer sentence than under the plea agreement.

We conclude that the pressure felt by appellant is simply the pressure often felt by criminal defendants faced with the decision of going to trial with bad facts or accepting a plea agreement. There is no objective evidence that appellant was forced to accept the plea agreement. In advising appellant, Lind simply made clear to appellant the strength of the state's case and that appellant had only a small chance of succeeding if the case went to trial. It is clear from the record that, given the little with which he had to work, Lind was prepared to go to trial and planned to represent appellant to the best of his abilities. There is no evidence that Smith used any threats or duress against appellant. The evidence supports the district court's findings that appellant's guilty plea was not coerced, and that it was made intelligently and voluntarily. No manifest injustice occurred in the present case and the district court did not err when it denied appellant's motion to withdraw on this basis.

The district court did not abuse its discretion when it concluded that appellant failed to provide or prove a fair and just basis on which he should be allowed to withdraw his guilty plea. Appellant had the opportunity to meet with Lind to discuss his case, the terms of the plea agreement, and the risks associated with going to trial. Appellant acknowledges that he read through the plea petition, understood its terms, and completed the petition voluntarily, albeit with some help from Lind. Appellant testified that he wanted to avoid a long prison sentence and understood that the plea agreement guaranteed that he would receive a shorter sentence.

On these facts, we conclude the district court did not err in denying appellant's request to withdraw his guilty plea following the conclusion of an evidentiary hearing.

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.