State of Minnesota, Respondent, vs. Sheri Ann Carlson, 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This opinion will be unpublished and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

A03-1468

 

 

State of Minnesota,

Respondent,

 

vs.

 

Sheri Ann Carlson,

Appellant.

 

 

Filed August 17, 2004

Affirmed in part and remanded in part; motion denied

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 02024865

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Stanley H. Nathanson, 15560 FLW Boulevard, Suite 143, Scottsdale, AZ 85260 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge; Halbrooks, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Sheri Ann Carlson argues the district court erred in denying her motion to withdraw her guilty plea.  We affirm the denial of her motion to withdraw her guilty plea and remand to the district court to consider the application, if any, of Blakely v. Washington, 124 S. Ct. 2531 (2004).

FACTS

Carlson was charged with one count of felony theft by swindle over $35,000 in violation of Minn. Stat. § 609.52, subds. 2(4), 3(1) (2000).  On February 11, 2003, Carlson appeared for trial and requested a continuation to secure new counsel.  Carlson's request was denied, and she entered a guilty plea.

At the plea hearing, Carlson explained that she had worked as the controller for Stahl Construction Company from June 2001 through December 2001.  She admitted to taking checks with no designated payee to upper-level staff members for signature.  After the checks were signed, she entered her name as the payee and deposited them into her personal bank account.  There was one check for which Carlson changed a designated payee to her name.  In sum, she successfully deposited 18 checks totaling $123,987 into her personal bank account.

Prior to the district court accepting her plea, Carlson stated that she understood no promises were being made regarding the sentence to be imposed beyond a 180-day cap on incarceration.  She further stated that she understood the district court would make the final decision regarding what sentence to impose.

Carlson was sentenced to 42 months, stayed, and 10 years' probation, constituting an upward durational departure from the presumptive sentence.  The presentence investigation report had recommended the presumptive sentence of 21 months, stayed, and five years' probation.  See Minn. Sent. Guidelines IV (stating presumptive sentence for theft of more than $35,000 with criminal history score of zero is 21 months stayed).  The district court cited the large amount of monetary loss, Carlson's degree of sophistication and planning over a lengthy period of time, Carlson's misuse of her position with her employer to facilitate commission of the crime, and Carlson's lack of accepting responsibility for the crime as reasons for the upward departure.   The court imposed multiple conditions on Carlson's probationary period, including that the first 120 days be served in a workhouse.

Carlson failed to report to the workhouse as ordered.  Thereafter, a probation revocation hearing was held, wherein the district court revoked the probation and sentenced Carlson to 42 months, executed, and ordered that she pay $123,987 in restitution.  Carlson then moved to withdraw her guilty plea.  The district court denied the motion.

D E C I S I O N

1.         A district court's denial of a motion to withdraw is reviewed under an abuse-of-discretion standard.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  Absent a showing of manifest injustice, a defendant does not have an absolute right to withdraw a guilty plea once the trial court has accepted it.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  If a defendant's plea is not accurately, voluntarily, and intelligently entered, a manifest injustice exists, and the plea must be withdrawn.  Alanis, 583 N.W.2d at 577.

Carlson argues the district court erred by denying her guilty plea because of the "inaccuracy" of her plea.  A plea is inaccurate if the court fails to establish an adequate factual basis.  Ecker, 524 N.W.2d at 716.  An adequate factual basis requires "sufficient facts on the record to support a conclusion that defendant's conduct falls within the charge to which he desires to plead guilty."  State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003) (quotation omitted).

Felony theft by swindle occurs when a person, "whether by artifice, trick, device, or any other means," obtains property or services exceeding $35,000 from another person.  Minn. Stat. § 609.52, subds. 2(4), 3(1).  Theft by swindle requires an affirmative intent to defraud.  State v. Pirsig, 670 N.W.2d 610, 615 (Minn. App. 2003), review denied (Minn. Jan. 20, 2004).

Here, Carlson admitted at the plea hearing to purposefully bringing checks to her employer for signature and thereafter designating herself as payee and depositing the checks into her personal bank account.  Through this method, she deposited $123,987 into her personal bank account.  She admitted that she did not earn this money nor did she have the permission of her employer to take the money.  This record provides an adequate factual basis to support a conclusion that Carlson obtained property in violation of Minn. Stat. § 609.52, subds. 2(4), 3(1).

Carlson contends that the district court erred in accepting her guilty plea because her unhappiness with her attorney led her to enter a plea without any limitation on the sentence and in sentencing her to an upward departure that was not recommended by the presentence investigation.  We note that these arguments do not involve the accuracy of the plea.  See Iverson, 644 N.W.2d at 349 (plea is inaccurate if there is not sufficient factual basis on record to support conclusion that defendant's conduct falls within charge to which he or she desires to plead guilty).  They suggest an assertion that the district court erred in denying her request for a continuance and in imposing an upward durational departure.  The only issue raised on appeal, however, is whether Carlson has a right to withdraw her plea because it was inaccurate.

2.         After this appeal was briefed, the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004), holding that an upward departure under Washington's sentencing scheme violated a defendant's Sixth Amendment right to a jury trial.   Carlson has moved to submit supplemental briefing on the application of Blakely to her sentence.

We conclude that the interests of justice do not warrant addressing Blakely where the issue was not litigated before the district court.  See generally State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (declining to address constitutional issue not fully briefed and not litigated in district court).  Accordingly, we deny the motion to submit supplemental briefing to this court and remand to the district court to consider the application of Blakely to Carlson's sentence.

Affirmed in part and remanded in part; motion denied.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.