State of Minnesota, Respondent, vs. Brad Michael Tukes, Appellant.

State of Minnesota, Respondent, vs. Brad Michael Tukes, Appellant. A04-1619, Court of Appeals Unpublished, January 3, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1619

 

State of Minnesota,
Respondent,
 
vs.
 
Brad Michael Tukes,
Appellant.

 

Filed January 3, 2006

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. K904927/K404527

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

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

 

John M. Stuart, State Public Defender, Sean M. McGuire, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Brad Michael Tukes challenges his conviction for violating an order for protection, arguing that the court abused its discretion in refusing his request to withdraw his guilty plea.  Because appellant failed to prove that a plea withdrawal would be fair and just, we affirm.  Appellant also raises arguments in his pro se brief; we conclude these arguments are not supported by the record.

D E C I S I O N

I.

Withdrawal of guilty plea

A criminal defendant has no absolute right to withdraw a plea of guilty once it has been entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  A district court has broad discretion in deciding whether to grant a defendant's motion to withdraw a guilty plea, and a reviewing court will not reverse a district court's denial of such a motion absent a clear abuse of 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 might choose 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. 

Appellant argues that the district court abused its discretion by denying his motion to withdraw his guilty plea because he was under emotional stress at the plea hearing.  We disagree.  Appellant told his attorney, "I'm all right" when asked if this was an emotional time.  The record contains objective evidence that appellant was emotional, but under control.  There is no evidence that appellant was under more emotional stress than any other similarly situated person. 

In denying appellant's motion to withdraw his guilty plea, the court stated:

I find that [appellant] did knowingly and intelligently and voluntarily enter his plea of guilty to each of these charges on March 26, 2004.  There is no showing of any basis upon which the pleas could or should be withdrawn today.

 

      If [appellant] was under emotional stress at the time he entered the pleas, I have to say that that was not demonstrated in any manner before me on March 26th when he entered his pleas.  And I specifically asked [appellant], as I would any other defendant standing before me entering a plea of guilty to any charge, whether they're clear headed, whether they're entering their plea voluntarily and whether they have had sufficient time to speak with their counsel.

 

      [Appellant] accordingly and the record will reflect understood the charges to which he was entering a plea of guilty and understood the possible sentences or likely sentences that would be imposed as a result of entering those pleas.  And so I'm denying the request to withdraw.

 

Ultimately, the district court made a credibility determination.  The district court viewed appellant during the entire plea hearing and did not find appellant's assertion regarding emotional stress to be credible.  See State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997) (concluding that, when credibility determinations are crucial in determining whether a guilty plea was accurate, voluntary, and intelligent, "a reviewing court will give deference to the primary observations and trustworthiness assessments made by the district court"), review denied (Minn. June 11, 1997).

Review of the plea-hearing transcript indicates that appellant was aware of the nature of the charges against him, that appellant was not under the influence of any medication and was clear headed, that appellant agreed that he had enough time to discuss his case with his attorney, that he understood the plea agreement, and that his attorney had informed him of his right to a jury trial.  The court considered appellant's stated reason for wanting to withdraw his plea and acted within its discretion in denying the withdrawal.  The district court did not abuse its discretion in concluding that appellant failed to present any compelling reasons to withdraw his guilty plea.

Appellant also argues that the court erred by analyzing his request to withdraw his plea under the "manifest injustice" standard.  See Minn. R. Crim. P. 15.05, subd. 1.  Appellant correctly notes that, during arguments, the state misinformed the court that the standard was "manifest injustice"; however, the record does not indicate that the court applied the "manifest injustice" standard. 

II.

Pro se arguments

In a supplemental pro se brief appellant argues that the evidence was insufficient to support a conviction.  Appellant's contention that the guilty plea is not supported by sufficient facts to establish that he committed the crime is a challenge to the accuracy of the guilty plea.  See State v. Iverson, 664 N.W.2d 346, 350 (Minn. 2003).  Accuracy requires that the plea be supported by a proper factual basis, that there "must be sufficient facts on the record to support a conclusion that defendant's conduct falls within the charge to which he desires to plead guilty."  Kelsey v. State, 298 Minn. 531, 532, 214 N.W.2d 236, 237 (1974).

Appellant now argues that the police report and investigation were insufficient evidence that he violated the order for protection.[1] Appellant's answers to the questions during his plea hearing directly conflict with his assertion that he was innocent.  Appellant admitted at the March 26, 2004, plea hearing that he had been served with an emergency domestic abuse order for protection on February 11, 2004.  Appellant understood that the order forbade him from going to his wife's house or having any contact with her.  He further admitted to violating the order by going to her house on the day he received the order and calling her house on February 22, 2004.  The record establishes the essential element of appellant's crime, contacting his wife; thus, appellant violated the order for protection.  Because the record establishes the elements of appellant's offense, his challenge to the accuracy of his guilty plea fails. 

Appellant also argues that he was deceived into pleading guilty, thus subjecting him to ineffective assistance of counsel.  To obtain relief for ineffective assistance of counsel, appellant must prove that (1) his attorney's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984).  When a defendant who has pleaded guilty claims ineffective assistance of counsel, he must show that but for counsel's errors he would not have pleaded guilty.  See State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).  Appellant bears the burden of satisfying both prongs of the Strickland test.  See, e.g., King v. State, 562 N.W.2d 791, 795 (Minn. 1997). 

Appellant's perception that he was deceived is rooted in his contention that his counsel was aware that he was innocent of at least one of the previous crimes and failed to argue this to the district court.  Deciding which arguments to make is a strategic decision and within the sole discretion of the attorney.  Criticisms of the strategy that drives counsel's trial tactics are insufficient to establish ineffective assistance of counsel.  See State v. Berry, 309 N.W.2d 777, 785 (Minn. 1981) (defendant's criticisms of his counsel's trial strategy did not persuade the court of the ineffectiveness of his counsel).  Appellant has failed to provide credible evidence that his attorney's performance fell below an objective standard of reasonableness. 

Appellant argues that, when he placed the phone call to his wife's home, he was calling his children; because the "no contact" order does not apply to the children, he did not violate the order for protection of his wife.  Appellant's phone call was from the Ramsey County Law Enforcement Center.  The officer assigned to monitor telephone calls reported that appellant called an unidentified male and told him to three-way-call appellant's wife.  When the telephone call was connected, appellant had a conversation with his wife about reconciling.  There was no interaction with his children.  Even if appellant were allowed to call the home to contact his children, he did not do so here. 

            Affirmed.

[1] Appellant also contends that, on April 26, 2004, his wife submitted a letter stating that she lied to the police and appellant was not guilty.  This letter was not admitted into evidence during the plea hearing; thus, we will not review it here.  An appellate court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below.  See Minn. R. Civ. App. P. 110.01 (Record on appeal consists of papers filed in trial court, exhibits, and transcript, if any.).