State of Minnesota, Respondent, vs. Rodney Mitchell Barker, a/k/a Rasheed Malik Asaad, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-1809

 

State of Minnesota,
Respondent,
 
vs.
 
Rodney Mitchell Barker,
a/k/a Rasheed Malik Asaad,
Appellant.

 

 

Filed April 24, 2001

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. KX992556

 

 

Michael A. Hatch, Minnesota Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, Suite 315, 50 Kellogg Boulevard West, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Suite 600, 2829 University Avenue, Southeast, Minneapolis, MN 55414 (for appellant)

 

 

          Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

Appellant Rodney Mitchell Barker, a/k/a Rasheed Malik Asaad, appeals from the district court's denial of his motion to withdraw his plea of guilty to controlled-substance crime in the fifth degree.  Because the district court did not abuse its discretion, we affirm.

FACTS

Appellant pleaded guilty to controlled-substance crime in the fifth degree pursuant to a promise by the prosecutor to dismiss a charge of controlled-substance crime in the fourth degree and to a qualified promise by the district court to grant a dispositional departure and not imprison appellant.[1]  The written plea agreement documents appellant's understanding that the district court was willing to depart dispositionally only if appellant had no additional charges or arrests between the plea and sentencing.  At the plea hearing, the district court stated on the record that it intended to depart dispositionally and that appellant could withdraw his plea if there was something in the presentence investigation that made the district court uncomfortable with the departure.  The district court stated:

I also want to make it clear to you that if my mind changes between now and the time of sentencing because of some new illegal conduct by you, in that case I'm going to hold you to your plea, but I will not hold myself to the downward departure.  Do you understand that?

 

Appellant said he understood and later, in response to questioning by his attorney about the plea, appellant indicated that he understood that the departure depended on his staying out of trouble between the date of the plea and the sentencing.  The district court accepted the plea and stated:

You will need to go through a presentence investigation, * * * you'll have to remain law abiding, as I said, and if you don't do those things and if you don't return for sentencing, I have your plea but there's no agreement in terms of the sentence, do you understand that?

 

Appellant said he understood and the district court scheduled sentencing for December 22, 1999, about six weeks later.  Appellant failed to meet with the probation agent for the presentence investigation and failed to appear for sentencing on December 22, and a bench warrant for his arrest was issued.  Appellant was arrested in June 2000 on an unrelated charge of third-degree assault.  When appellant finally appeared in July 2000 for sentencing on the charge of fifth-degree controlled-substance crime, he asked the court to depart dispositionally or to allow him to withdraw his guilty plea.  The district court denied appellant's request to withdraw his plea, stating:

I'm not going to let you withdraw your plea.  That was very clear to you when I took the plea what my intentions were and that if I decided, based on reviewing the PSI, nothing you did between [the] plea and sentencing that I couldn't go along with the plea agreement, I would have, at that point, let you withdraw your plea.  The fact of the matter is you haven't held up your end of the bargain * * * .

 

The district court imposed the guideline sentence and this appeal followed.

D E C I S I O N

 

            Allowing a defendant to withdraw a guilty plea before sentencing is a decision "left to the sound discretion of the trial court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion."  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  A valid guilty plea "must be accurate, voluntary, and intelligent (i.e., knowingly and understandingly made)."  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997) (citation omitted).  The defendant must show by a preponderance of the evidence that the facts warrant withdrawal of the plea.  Lundin v. State, 430 N.W.2d 675, 679 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988).

            Appellant argues that the district court exceeded its authority by engaging in plea negotiations with appellant and for that reason (1) the agreement he reached with the court was unenforceable and meaningless and (2) his plea was neither voluntarily nor intelligently made, but was rather the product of an improper, misleading, and unenforceable deal with the court.  Appellant did not present this argument to the district court.  "This court generally will not decide issues which were not raised before the district court."  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (citation omitted).  We can, at our discretion, deviate from this rule, but we decline to do so in this case.  See id.

            Appellant also argues that under the plea agreement he was entitled to withdraw his plea if he did not receive probation.  The record clearly demonstrates that appellant is mischaracterizing the agreement.  The district court's agreement to a downward departure was conditioned on appellant's conduct between the date of the plea and sentencing: appellant had to (1) avoid additional charges and arrests, refrain from "new illegal conduct," and "remain law abiding"; (2) go through a presentence investigation; and (3) return for sentencing on December 22, 1999.  Appellant failed to meet these conditions: (1) between the date of the plea and his July 2000 sentencing, appellant had been charged with third-degree assault and, by his own admission, he had started drinking and "using again"; (2) appellant did not go through a presentence investigation prior to sentencing; and (3) appellant did not return for sentencing on December 22, 1999.  The district court did not abuse its discretion in denying appellant's motion to withdraw his plea.

            Affirmed.

 

[1] Appellant had six criminal history points and knew that the presumptive sentence for controlled substance crime in the fifth degree was an executed prison sentence.  He sought assurances from the court that he would be given a dispositional departure and placed on probation.