Walter R. Fields, Appellant, vs. Maslon Edelman Borman & Brand, LLP, et al., Respondents, and Walter R. Fields, Appellant, vs. Maslon Edelman Borman & Brand, LLP, Respondent, and Maslon Edelman Borman & Brand, LLP, Respondent, vs. Walter R. Fields, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-99-940

Denell Jason Hayes, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 25, 2000
Affirmed
Randall, Judge

Ramsey County District Court
File No. K4-97-619

Gary R. Bryant-Wolf, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)

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

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant brought a petition for postconviction relief, claiming he received ineffective assistance of counsel because of false promises and representations allegedly made by his trial counsel that he would qualify for the Challenge Incarceration Program. Appellant further claims the district court abused its discretion when it refused to allow him to withdraw his guilty plea pursuant to Minn. R. Crim. P. 15.05, or to grant him an evidentiary hearing. We affirm on all issues.

FACTS

Appellant Denell Hayes pleaded guilty in Ramsey County District Court to: (1) possession of a firearm by an ineligible person; (2) terroristic threats; and (3) first-degree witness tampering. Pursuant to the plea agreement, the state agreed to dismiss a second-degree assault charge; Hayes would receive a 48-month executed sentence to be served concurrently with any sentences for probation violations that may have occurred; and the district court would recommend that Hayes be accepted into the Department of Corrections's Challenge Incarceration Program (CIP) ("Boot Camp").

During the plea hearing, Hayes acknowledged that he had read the plea petition, reviewed it with his attorney Clayton Robinson, understood its terms, and had no questions regarding it.

Hayes testified that on the date of the incident, he saw Roscher Cryer and others on the corner of Lexington and Marshall in St. Paul. Hayes left the vehicle he was driving and got into an argument with Cryer. During the argument, Hayes threatened Cryer with a crime of violence. The incident was observed by postal worker Shawn Filipowski. Hayes stated that, as Filipowski was passing his car, he pointed a shotgun with a pistol grip and a short barrel toward Filipowski and told Filipowski not to say anything or tell anyone about the incident. According to Hayes, he did this in an effort to convince and intimidate Filipowski into not reporting the incident to the police. The district court accepted Hayes's guilty plea and ordered a presentence investigation.

The district court imposed executed concurrent terms of 21 months for the possession of a firearm by an ineligible person conviction and 46 months for the first-degree witness tampering conviction. In addition, the court executed sentences for two probation violations resulting from the guilty plea. These sentences were also to be served concurrently. The district court recommended to the Commissioner of Corrections that Hayes be allowed to participate in CIP. Hayes was denied acceptance into CIP. The gun-related offense and Hayes's record were deemed negative factors by the Department of Corrections for acceptance into CIP.

Hayes filed a petition for postconviction relief, seeking to withdraw his guilty plea on the grounds that: (1) a manifest injustice existed because his pleas were not made knowingly, intelligently, or voluntarily; and (2) he received ineffective assistance of counsel. Hayes claimed that Robinson failed to investigate an alibi defense and promised him that he would be eligible for CIP if he accepted the plea agreement.

After reviewing the record and the affidavits submitted on behalf of Hayes and Robinson, the postconviction court found that Hayes failed to sustain his burden of establishing grounds for withdrawal based on manifest injustice or ineffective assistance of counsel. The court found that Hayes was fully informed of the plea agreement; a more serious charge was dismissed and three lesser felony charges were substituted in its place; the sentences, including two felony sentences for probation violations resulting from the guilty plea, would be served concurrently; and Hayes stated under oath that he had time to speak with Robinson and knew the contents of the plea petition. The court rejected Hayes's claim that he was promised unconditional acceptance into CIP, finding that the plea agreement simply provided that Hayes would be recommended for CIP. This appeal follows.

D E C I S I O N

This court's review of a postconviction proceeding is limited to determining "'whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion.'" Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (quoting Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (citation omitted)).

To succeed on a claim of ineffective assistance of counsel, petitioner must demonstrate: (1) that his counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's errors, the proceedings' outcome would have been different. King v. State 562 N.W.2d 791, 795 (Minn. 1997). Where a guilty plea is concerned, a petitioner satisfies the second prong "by establishing a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, but rather would have proceeded to trial." Berkow v. State, 573 N.W.2d 91, 96 (Minn. App. 1997) (citations omitted), aff'd, 583 N.W.2d 562 (Minn. 1998). A reviewing court "must be 'highly deferential' when scrutinizing defense counsel's performance." Tsipouras v. State, 567 N.W.2d 271, 275 (Minn. App. 1997) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984)), review denied (Minn. Sept. 18, 1997), cert. denied, 522 U.S. 1114 (1998). A postconviction court's rulings on a claim for ineffective assistance of counsel are reviewed under an abuse of discretion standard. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).

Hayes contends that he informed Robinson of an alibi defense and that Robinson failed to investigate the matter. The failure to investigate various leads is not error by defense counsel absent a showing that significant exculpatory evidence could have been uncovered. Crisler v. State, 520 N.W.2d 22, 26 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994).

[A] defendant has an affirmative duty to show witnesses would have been found and their testimony would have had an actual effect on the outcome of a proceeding.

State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (citing Gates v. State, 398 N.W.2d 558, 563 (Minn. 1987)). A defendant, therefore, must show how alleged witnesses would have affected his decision to plead guilty and whether any defense "was realistic or appropriate under the facts of his case." Id.

Beyond his assertion that he gave Robinson the names of possible witnesses, Hayes has failed to point to those witnesses Robinson should have interviewed. Because Hayes failed to show that witnesses existed who could testify regarding his alibi defense, we conclude that Hayes did not receive ineffective assistance of counsel in this regard.

Hayes contends that he received ineffective assistance of counsel because Robinson should have known that, under the terms of the guilty plea, he would never have been eligible for entry into CIP.

At the plea hearing, Hayes testified that he read and signed the petition, he went over it with Robinson, he understood its terms, it comported with his wishes, and he had no questions about anything in it. During the hearing, Robinson stated:

The reason why we are making this agreement is because my client is hopeful that he will be able to participate in the Challenge Program while in the custody of the Commissioner of Corrections. He understands that there's no guarantee that he's going to be eligible for the program, but I've spent sufficient time now exploring the issue that I feel comfortable that he would be eligible. I understand from discussion with the Court, that the Court has agreed to make a recommendation that my client be accepted to the Challenge Program, and I will address that issue later at sentencing.

(Emphasis added.) When asked if he wanted to say anything, Hayes responded, "No."

In his affidavit, Robinson states that he never promised Hayes that he would automatically qualify for CIP, especially in light of Hayes's status as a "public risk" following previous convictions for other offenses. Robinson stated that he negotiated a plea where Hayes would not have to admit to any intentional assaultive conduct and he would receive no more than 48 months.

Here, Hayes's claim that he was promised entry into CIP is negated by the plea petition he signed, the statements he made during the plea hearing, and the statements contained in Robinson's affidavit. See State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983) (holding defendant's claim of ineffective assistance of counsel based on promise he would receive probation if he pleaded guilty was negated by plea petition he signed, statements he made at plea hearing, and testimony by his former defense counsel at motion hearing). The record supports the conclusion that the plea agreement did not guarantee Hayes's acceptance into CIP, but simply provided that the district court would recommend CIP to the Commissioner of Corrections. Hayes had the opportunity to ask questions and object to Robinson's statement to the court that Hayes understood that there was no guarantee that he would be accepted into CIP. He did not do so.

Further, the CIP criteria summary faxed to Robinson provides that to be considered, an individual cannot be convicted of assault or any offense that involved "intentional personal injury." The criteria sheet also provided that the individual must have "36 months or less in or remaining in their term of imprisonment." The plea agreement negotiated by Robinson eliminated the charge of second-degree assault, thus satisfying the offense eligibility requirement. And by agreeing to a 48-month term of imprisonment, with good-time credit, Hayes would presumably have to serve only 32 months, thereby satisfying the sentence eligibility requirement.[1]

While the admirable goal of placing Hayes into CIP was ultimately not accomplished, we are satisfied that Robinson's representation did not fall below a reasonable standard of representation. Hayes was not given an unqualified promise that he would be accepted into CIP. The record shows he understood that he was not guaranteed acceptance into CIP. We conclude he did not receive ineffective assistance of counsel.

Next, Hayes contends that he should be allowed to withdraw his guilty plea pursuant to Minn. R. Crim. P. 15.05, subd.1.

A defendant does not have the absolute right to withdraw a guilty plea once it has been entered. Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). The district court must permit a defendant to withdraw a guilty plea only if a defendant makes a timely motion and "withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice occurs when a defendant is coerced into pleading guilty, and the defendant must be allowed to withdraw his guilty plea in such an instance. State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991). The "'involuntariness of a guilty plea * * * constitute[s] such a manifest injustice as to entitle a defendant to withdraw his guilty plea.'" State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994) (alteration in original) (quoting Hirt v. State, 298 Minn. 553, 558, 214 N.W.2d 778, 782 (1974)). Whether a plea is made voluntarily is a question of fact that will not be disturbed unless clearly erroneous. Id. Findings of fact are not clearly erroneous if they are supported by reasonable evidence in the record. Id. All the relevant circumstances must be considered when determining the voluntariness of a plea. Id.

Here, Hayes was aware of and understood the rights he was waiving by pleading guilty. He was not guaranteed placement in CIP, but only that the district court would recommend placement into CIP. We conclude Hayes was not coerced into pleading guilty. He was not given an unconditional guarantee that he would be placed in CIP. He was aware of the rights he was waiving if he pleaded guilty. We conclude that, on these facts, granting Hayes's request to withdraw his guilty plea pursuant to Minn. R. Crim. P. 15.05, subd. 1, is not warranted.

Finally, Hayes argues the postconviction court erred when it denied him an evidentiary hearing on his petition. This is a close issue. A postconviction evidentiary hearing is required if the petitioner alleges facts that, if proven, would entitle a petitioner to relief. Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997). Where there are disputed material facts that must be resolved in order to get to the merits of the postconviction claim, the postconviction court must hold an evidentiary hearing. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).

The decision whether to grant an evidentiary hearing on a postconviction motion to withdraw a guilty plea is reviewed under an abuse of discretion standard. In Saliterman v. State, 443 N.W.2d 841 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989), defendant brought a petition for postconviction relief seeking to withdraw his guilty pleas, alleging that he received ineffective assistance of counsel and his plea was made involuntarily. Id. at 843-844. This court affirmed the postconviction court's denial of an evidentiary hearing, holding:

"[A] plenary evidentiary hearing need not be afforded [for a postconviction motion to withdraw guilty pleas] unless the court deems it necessary to resolve a disputed fact issue arising from conflicting affidavits or based upon assertions outside the record."

Id. at 843 (alteration in original) (quoting State v. Wolske, 280 Minn. 465, 474-75, 160 N.W.2d 146, 153 (1968)). The court ruled that the postconviction court did not abuse its discretion in denying defendant an evidentiary hearing, noting that the postconviction court reviewed the affidavits of defendant, his mother, and two of his friends. Id.

Hayes, by his own request, invited the postconviction court to decide the matter based on the exhibits and affidavits attached to his postconviction petition. His petition stated:

At a hearing on his Petition, Petitioner shall present the evidence set forth in the attached exhibits, either through live testimony or by affidavit as it may please the Court. Petitioner would request leave of court to present affidavits in lieu of live testimony unless individuals refuse to execute an affidavit, in which case they would be subpoenaed. Petition requests three hours of the Court's time for this hearing.

(Emphasis added.)

The record does not show that any individuals solicited by Hayes to sign affidavits refused. Hayes did not present any such evidence. Thus, we are satisfied that the record, through the filed exhibits, affidavits, and transcripts, was sufficiently developed to allow the postconviction court to adequately review and evaluate the merits of Hayes's postconviction claims. Hayes failed to demonstrate what, if any, additional evidence he was denied the opportunity to present. The postconviction court did not abuse its discretion when it refused to grant him an evidentiary hearing.

Affirmed.

[1] We note that although the written plea agreement signed by Hayes provided for a 48-month term of imprisonment, the district court sentenced Hayes to a 46-month executed sentence. This does not affect our analysis in this case.