State of Minnesota, Respondent, vs. Augustine Moreno, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-1341

State of Minnesota,

Respondent,

vs.

Augustine Moreno,

Appellant.

Filed May 13, 2003

Affirmed

Toussaint, Chief Judge

Steele County District Court

File No. K80178

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, Suite 500, 525 Park St., St. Paul, MN  55103; and

Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, MN  55060 (for respondent)

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue S.E., Minneapolis, MN  55414 (for appellant)

            Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant appeals from a conviction for second-degree controlled substance crime, arguing that the district court abused its discretion by denying his pre-sentencing motion to withdraw his guilty plea.  Because appellant failed to prove that a plea withdrawal would be fair and just, we affirm.

F A C T S

Appellant Augustine Moreno was charged with two counts of first-degree controlled substance crime for participating in two controlled cocaine buys.  Pursuant to plea negotiations, the prosecutor agreed to reduce the charges against Moreno to second-degree controlled substance crimes in exchange for testimony that would help convict another party allegedly involved in the distribution of drugs.  In May 2001, Moreno pleaded guilty to the second-degree charges.

At his August 2001 hearing, Moreno asked the district court to reschedule his sentencing.  The district court granted Moreno's request, and his sentencing was rescheduled for November 2001.  In November, Moreno again asked the district court to reschedule his sentencing so that he could work with drug enforcement officers in an attempt to mitigate his sentence.  Moreno indicated that if his sentencing was not postponed he might move to withdraw his guilty plea.  The state agreed to postpone Moreno's sentencing, which was rescheduled for January 2002. 

The record shows that the prosecution's key witness against Moreno died in a car accident in August or September of 2001.  Moreno moved to withdraw his guilty plea at the January sentencing hearing, and the district court denied his motion.  Moreno was sentenced to 48 months on count one and 58 months on count two, to be served concurrently.  Moreno appeals from the judgment of conviction to challenge the denial of his motion to withdraw his guilty plea.

D E C I S I O N

A defendant does not have an absolute right to withdraw a guilty plea.  Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).

 "The ultimate decision [of allowing a defendant to withdraw a guilty plea before sentencing] is 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 court may allow a defendant to withdraw his guilty plea before sentencing if it is "fair and just" to do so, taking into consideration whether granting the motion would prejudice the prosecution.  Minn. R. Crim. P. 15.05, subd. 2.  The "fair and just" standard does not permit withdrawal "for any reason or without good reason" because accepting guilty pleas would then "simply be a means of continuing the trial to some indefinite date" when a defendant chooses to withdraw a plea.  Kim, 434 N.W.2d at 266 (quotation omitted).  A defendant has the burden of proving that a plea withdrawal is fair and just.  Id.  Whether a plea withdrawal is fair and just is left to the sound discretion of the district court.  Id.

Moreno argues on appeal that the district court abused its discretion by denying his motion to withdraw his guilty plea under the "fair and just" standard because he felt pressured to accept the plea agreement.  Moreno testified at the motion hearing that he only had a few minutes to consider his plea and that his attorney refused to give him more time to consider the plea.  The record contains objective evidence that Moreno had a sufficient amount of time to consider his plea.  At the plea hearing, Moreno agreed on the record that he had the opportunity to discuss his case "at length" with his attorney, that he understood the plea agreement, and that his attorney had informed him of his right to a jury trial.  When asked if it was his "own independent freewill decision to take [the] plea agreement," Moreno replied, "[y]es." 

In addition, allowing Moreno to withdraw his guilty plea would be extremely prejudicial to the state.  In an affidavit submitted to the district court, the state indicated it would be unable to proceed to trial against Moreno without the testimony of the deceased witness.  Because evidence in the record supports a finding that Moreno had enough time to consider his plea, and because the state would be prejudiced if he was allowed to withdraw his plea, the district court did not abuse its discretion by denying Moreno's motion to withdraw his guilty plea.

            Affirmed.