State of Minnesota, Respondent, vs. Gavin Combs, 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This opinion will be unpublished and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

A03-1181

 

State of Minnesota,
Respondent,
 
vs.
 
Gavin Combs,
Appellant.

 

Filed May 11, 2004

Affirmed

Stoneburner, Judge

 

Crow Wing County District Court

File No. KX991492

 

Mike Hatch, Attorney General, Hilary Lindell Caligiuri, Deputy Attorney General, Suite 1100, 445 Minnesota Street, St. Paul, MN 55101-2128; and

 

Donald F. Ryan, Crow Wing County Attorney, Crow Wing County Courthouse, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Benjamin J. Butler, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant Gavin Combs challenges his conviction of and sentence for two first-degree controlled-substance offenses and terroristic threats.  Appellant also argues that he is entitled to withdraw his guilty plea because the plea agreement stated that no fine would be imposed, and the district court imposed a $190 fine.  In the alternative, appellant argues that he substantially complied with the obligations of the plea agreement, and therefore, he is entitled to be sentenced to 48 months under the agreement.  Imposition of the fine does not entitle appellant to withdraw his plea, and because appellant failed to comply with the obligations of the plea agreement, we affirm.

FACTS

 

            In July 1999, the Crow Wing County Attorney's Office charged appellant with one count of a first-degree controlled-substance crime (sale) in violation of Minn. Stat.   

§ 152.021, subd. 1(1), one count of aiding and abetting first-degree controlled-substance crime (sale) in violation of Minn. Stat. §§ 152.021, subd. 1(1) and 609.05, subd. 1, and one count of solicitation of juveniles in violation of Minn. Stat. §§ 609.494, subds. 1, 2(b) and 152.021, subd. 1(1).  In a separate complaint filed in March 2000, appellant was also charged with second-degree assault in violation of Minn. Stat. § 609.222, subd. 1, and terroristic threats in violation of Minn. Stat. § 609.713, subd. 1. 

            Appellant and the state entered into a plea agreement under which appellant pleaded guilty to the two controlled-substance crimes and to the count of terroristic threats, with the remaining charges dismissed.  The plea agreement contained several general requirements, including that appellant would remain law abiding, and required appellant to:

(1)       Make four controled (sic) buys from major gang elements to include shotgun cripes and black peace stones.

 

OR

 

Introduce an agent so that the agent may complete a buy on his own.

 

(2)       Buys that [appellant] makes must be one ounce or greater of any controled (sic) substance except marijuana.  If [appellant] makes a buy that causes an intervention that buy will fulfill the contract term.

 

That the parties agree that they have a mutual interest in having this agreement succeed and accordingly if any problems exist or violations to the agreement occur there will be immediate communication between attorneys in order to remedy the problem to achieve the objectives of the agreement.

 

The agreement provided that if appellant successfully complied with its terms, he would be sentenced to no more than 48 months, and if he failed to comply, he would be sentenced to no more than 110 months.  The agreement noted that "[s]ince the [appellant] is indigent there shall be no fine assessed."  Appellant was to work at the direction of Bureau of Criminal Apprehension Agent Tom Wyatt.

            At the plea hearing, the district court and one of appellant's three attorneys questioned appellant extensively regarding his understanding of the consequences of the guilty pleas and his desire to enter the plea agreement.  Appellant's attorney also questioned appellant to provide a factual basis for the pleas.  Sentencing was scheduled for approximately three months from the date of the plea hearing to allow appellant time to comply with the terms of the agreement.

            Immediately prior to the original sentencing hearing, appellant fled the courthouse after learning that the state intended to seek a sentence of 110 months, in accordance with the provision of the plea agreement setting out the consequences for appellant's noncompliance.  The district court issued a bench warrant, but appellant remained at large for almost two years.  He was eventually arrested in Indiana and brought back to Minnesota.

            Prior to sentencing, appellant moved to withdraw his guilty pleas, alleging that law enforcement had revealed to someone outside of the investigation that appellant was working as an informant and that he was required to only arrange buys from African-Americans.  Agent Wyatt denied that law enforcement had revealed that appellant was working as an informant and provided the court with a copy of a letter appellant had written to a codefendant, requesting that the codefendant produce an affidavit stating that the police told the codefendant that appellant was working as an informant.  Agent Wyatt also denied the claim of targeting only African-Americans, noting that the plain language of the plea agreement specified that the buys or introductions related to members of two specific gangs. 

            The district court denied appellant's motion to withdraw his guilty pleas, finding that appellant voluntarily and knowingly entered into the plea agreement, but failed to substantially comply with it because, at the time appellant fled Minnesota, he had failed to set up or complete any controlled buys from, or introduce law enforcement to, the targets specified in the agreement.

            At the sentencing hearing, the state requested a 110-month sentence.  Appellant asked to be sentenced to no more than 48 months.  The district court imposed a presumptive 86-month sentence on count one, the first-degree sale charge, 105 months on count two, the aiding and abetting charge, and 24 months for the terroristic threats, to run concurrently.  The district court also imposed statutory fines totaling $190, with no objection or argument from appellant.

D E C I S I O N

 

I.          Appellant is not entitled to withdraw his guilty pleas

            The decision whether to allow a defendant to withdraw a guilty plea before sentencing "is left to the sound discretion of the district court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the [district] court abused its discretion."  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).            

            Courts may permit a defendant to withdraw a 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 entail an absolute right to withdraw a guilty plea before sentencing, and the court must guard against a standard that "would undermine the integrity of the plea-taking process."  Kim, 434 N.W.2d at 266 (citation omitted).

If a guilty plea can be withdrawn for any reason or without good reason at any time before sentence is imposed, then the process of accepting guilty pleas would simply be a means of continuing the trial to some indefinite date in the future when the defendant might see fit to come in and make a motion to withdraw his plea. 

 

Id. (quotation and citations omitted).  The defendant bears the burden of proving that the reason for withdrawing the plea is fair and just.  Id.             

            The court found that appellant failed to complete four controlled buys from members of the specified gangs and that appellant fled the jurisdiction and was on the run for two years.  Therefore, the district court concluded that it would not be fair and just to allow appellant to withdraw his guilty plea because appellant did not fulfill the terms of the plea agreement.  We agree.

            Appellant voluntarily entered into the plea agreement and, at the plea hearing, the district court questioned appellant extensively regarding his understanding of the agreement, establishing that appellant's pleas were accurately and intelligently made.  See Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997) (all guilty pleas must be accurate, voluntary, and intelligent). 

            Appellant failed to substantially comply with the plea agreement because he did not complete four controlled buys from the specified gangs, nor did he introduce a BCA agent to complete the buys on his own.  Appellant asserts that he was given insufficient time to complete the terms of the plea agreement.  But the state outlined the time frame at the plea hearing, explaining that it would allow appellant approximately three months to comply with the agreement.  Appellant did not object to the state's time frame and never requested additional time.  There is no evidence to support appellant's allegation that law enforcement told anyone that appellant was working as an informant, although there is evidence that appellant attempted to manufacture false evidence on this issue.  

Likewise, appellant's claim that law enforcement was targeting individuals based on race is unsupported by the evidence.  Under the plea agreement, appellant was required to make controlled buys from individuals who were members of specific gangs.  Therefore, the targeting was based on gang affiliation, not race.

            Appellant entered the guilty pleas intelligently, accurately, and voluntarily, but appellant failed to substantially comply with the terms of the plea agreement.  The district court did not abuse its discretion in concluding that it would not be fair and just to permit appellant to withdraw his guilty pleas.

II.        Appellant did not substantially comply with the plea agreement

            Appellant argues, in the alternative, that he is entitled to a 48-month limit on his sentence because he substantially performed his duties under the agreement.  Appellant claims that the state breached the agreement by requesting sentencing under the provision in the agreement applicable to appellant's failure to perform (maximum 110 months) and that his sentence should be amended to 48 months. 

In determining whether a party breached a plea agreement, courts must look to "what the parties to [the] plea bargain reasonably understood to be the terms of the agreement."  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (quoting United States v. Read, 778 F.2d 1437, 1441 (9th Cir.1985) (quoting United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979)).  "What the parties agreed to involves an issue of fact to be resolved by the district court. . . .  Issues involving the interpretation and enforcement of plea agreements, however, are issues of law that we review de novo."  Id. (citations omitted). If the state breaches a plea agreement, the court may allow withdrawal of the plea, order specific performance, or alter the sentence, if appropriate.  Id.

According to the plea agreement, appellant was required to "at least demonstrate substantial performance with respect to his obligations under this agreement."  Appellant attempts to demonstrate substantial compliance by numbering each requirement of the plea agreement and claiming that he complied with seven of the eight requirements.  But this tactic oversimplifies the issue.  The plea agreement required appellant to make four controlled buys from specified gangs, or to introduce a law enforcement agent to gang members so that the agent could complete the buys on his own.  Appellant did neither.  The only explanation offered by appellant for his failure to comply with the agreement was that "something [was] goin' down in Chicago."  This vague explanation does not explain or excuse appellant's noncompliance with the plea agreement. 

Appellant asserts that he offered to comply by arranging controlled buys with local drug dealers who were not members of the specified gangs.  Agent Wyatt disputes this claim and stated by affidavit that "[a]t no time did [appellant] ever discuss making or arranging for controlled buys from anyone other than the agreed upon gang members."  Furthermore, Agent Wyatt noted that the reason the state entered into the agreement with appellant in the first place was due to appellant's claim that he was associated with members of the specified gangs.  Even if appellant had offered to make controlled buys from other local dealers, doing so would not have satisfied the plain language of the plea agreement, which required appellant to make controlled buys from specified gangs.  Furthermore, appellant breached the agreement by fleeing and remaining at large for two years.  Therefore, appellant is not entitled to strict enforcement of the plea agreement, and the state did not breach the agreement when it requested sentencing under the provision in the agreement applicable to appellant's noncompliance.

III.       $190 fine

            Appellant argues that he must be allowed to withdraw his guilty pleas because his plea agreement was breached when the district court imposed $190 in fines as part of his sentence.  But appellant did not object when the district court imposed the fine or raise any other argument regarding the fine and therefore, appellant did not raise this issue before the district court.  Because we generally do not consider matters that were not argued and considered before the district court, we are not compelled to address this issue.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). 

            Appellant claims that he did not waive his right to challenge the imposition of the fine because the district court failed to follow Minn. R. Crim. P. 15.04, subd. 3(1), which states that if the district court rejects a plea agreement "it shall so advise the parties in open court and then call upon the defendant to either affirm or withdraw the plea."  In this case, the district court never rejected the plea agreement.  Rather, the court accepted the plea agreement at the plea hearing in August 2000.  Therefore Minn. R. Crim. P. 15.04, subd. 3(1) does not apply.  Moreover, appellant failed to raise this issue before the district court.  Roby, 547 N.W.2d at 357.  

            A defendant may obtain relief from an unobjected-to error only upon a showing that: (1) there is error; (2) that it is plain; and (3) that it affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  If those three prongs are met, the error is reversible only if it affects the fairness or integrity of the judicial proceedings.  Id. 

Arguably, the district court plainly erred by imposing a fine, although there is not evidence that appellant remained indigent at the time of sentencing.  But the imposition of the minimal fine in this case does not affect appellant's substantial rights or the integrity of the judicial proceeding. 

            Affirmed.