State of Minnesota, Respondent, vs. Jerome Milton Rutherford, Appellant.

may not be cited except as provided by

Minn. Stat § 480 A. 08, subd. 3 (1996)

 STATE OF MINNESOTA

 IN COURT OF APPEALS

  C0-97-2047

State of Minnesota,

Respondent,

vs.

Jerome Milton Rutherford,

Appellant.

Filed May 19, 1998

 Affirmed

Lansing, Judge

Dakota County District Court

File No. K195599

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

James Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55802-1298 (for respondent)

Lawrence W. Pry, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Norton, Judge.*

*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.

U N P U B L I S H E D O P I N I O N

 LANSING, Judge

Jerome Rutherford appeals the denial of his motion to withdraw his guilty plea to possession of cocaine. We affirm the district court's ruling that the record does not support Rutherford's claim that an undiagnosed diabetic condition prevented a knowing and intelligent plea.

FACTS

Jerome Rutherford pleaded guilty to second degree possession of controlled dangerous substances (cocaine) on October 16, 1995. At the plea hearing he provided sworn testimony that he understood and waived his constitutional rights to a jury trial, to remain silent, to call witnesses, and to cross-examine the state's witnesses. He also stated that he was not under the influence of alcohol and was not claiming innocence. Rutherford signed a guilty-plea petition pursuant to Minn. R. Crim. P. 15 and stated that he had read and reviewed it with his attorney before the hearing.

Rutherford failed to appear for his scheduled sentencing hearing in January 1996. Sixteen months later he was arrested on a bench warrant. At his rescheduled sentencing hearing, Rutherford moved to withdraw his guilty plea, stating that he had not knowingly and intelligently waived his right to trial. Rutherford alleged that when he entered the plea, he was suffering from fatigue and confusion caused by undiagnosed diabetes and was unable to understand the nature of his guilty plea. The district court, in oral findings, stated that no record evidence supported Rutherford's claim that he experienced diabetic symptoms or other medical problems during the plea hearing. The district court found that Rutherford knowingly and intelligently entered his plea, and the court imposed sentence. Rutherford appeals the denial of his plea withdrawal motion.

D E C I S I O N

The district court has broad discretion to grant or deny a motion to withdraw a guilty plea. Minn. R. Crim. P. 15.05; State v. Robinson, 388 N.W.2d 43, 45 (Minn. App. 1986), review denied (Minn. July 31, 1986). After a guilty plea is entered and accepted, there is no absolute right to withdraw it. Minn. R. Crim. P. 15.05; State v. Knight, 292 Minn. 419, 423, 192 N.W.2d 829, 832 (1971); State v. Bryant, 378 N.W.2d 108, 109 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986). But the court may exercise its discretion to allow a defendant to withdraw a plea before sentencing "if it is fair and just to do so." Minn. R. Crim. P. 15.05. In considering the plea withdrawal request, the court is required to give due consideration to the reasons advanced by the defendant and any prejudice to the prosecution caused by relying on the plea. The defendant bears the burden of proving a fair and just reason that allows him to withdraw a guilty plea. State v. Kim, 434 N.W.2d 263, 266 (Minn. 1989).

Rutherford has not submitted any testimony, affidavit, or medical evidence that he presently suffers from diabetes. More significantly, he has failed to submit any evidence that an alleged diabetic condition affected his mental capacity or ability to comprehend during the plea hearing. The plea transcript demonstrates a very thorough inquiry by both his attorney and the court. Rutherford responded to questioning and stated that he had a full opportunity to go over his plea petition, he indicated that he understood each right, that he made no claim of innocence, and he further stated on the record that he had no questions of his attorney because he understood everything. As the district court stated in denying Rutherford's request to withdraw his plea, "[t]here is absolutely nothing in this case to suggest that Mr. Rutherford wasn't fully aware of the circumstances" or that "he was suffering from any type of medical condition at that time."

The district court's decision must also take into account any potential prejudice to the state in determining whether to grant Rutherford's motion. Minn. R. Crim. P. 15.05. Withdrawal of Rutherford's plea would have resulted in extreme prejudice to the state because the cocaine and other evidence seized from Rutherford had been destroyed during the nearly two-year lapse between the plea and the petition to withdraw the plea. Rutherford offered no explanation for his failure to appear for his January 1996 sentencing or for his actions during the intervening 16 months before he was arrested on the warrant. On these facts, the court was well within its discretion in denying Rutherford's motion to withdraw his guilty plea.

  Affirmed.