State of Minnesota, Respondent, vs. Ronald E. Hott, 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This opinion will be unpublished and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

A04-234

 

State of Minnesota,

Respondent,

 

vs.

 

Ronald E. Hott,

Appellant.

 

Filed December 14, 2004

Affirmed Hudson, Judge

 

Hennepin County District Court

File No. 01106872

 

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

 

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

 

John M. Stuart, State Public Defender, Ngoc Nguyen, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appealing from his conviction of felony receipt of stolen property, appellant argues that the district court abused its discretion in denying appellant's motion to withdraw his guilty plea.  Appellant argues that the plea was not intelligent because there was confusion as to his criminal-history score and that appellant was coerced by the court's reference to him as a career offender.  Appellant further argues that the interests of fairness and justice compel withdrawal because there was confusion about appellant's criminal-history score and because appellant demonstrated his innocence.  Because the record demonstrates that appellant's plea was intelligent and voluntary, we affirm.

FACTS

Appellant Ronald Hott was charged in Hennepin County with felony theft over $500 pursuant to Minn. Stat. § 609.52, subds. 2(1), 3(3)(a) (2002); damage to property in the first degree pursuant to Minn. Stat. § 609.595, subd. 1(3) (2002); and felony receiving stolen goods pursuant to Minn. Stat. § 609.53, subd. 1, and Minn. Stat. § 609.52, subd. 3(3)(a) (2002).  The charges arose after officers discovered items stolen from various vehicles in appellant's vehicle during a traffic stop on December 29, 2001. 

            Appellant initially pleaded guilty to one count of felony theft over $500 on July 9, 2002.  Appellant disputed his criminal-history score at the hearing.  The district court indicated its belief that appellant's criminal-history score was incorrectly calculated and that appellant's offense warranted a presumptive probation sentence under the guidelinesshould he plead to felony theft over $500.  During his examination, appellant acknowledged that sentencing would be scheduled six weeks from the hearing date because the district court needed additional time to compute an accurate criminal-history score. 

            Appellant moved to withdraw his guilty plea at the August 27, 2002 sentencing hearing because, having located and brought to the court that day the individual who appellant alleged broke into the vehicles and stole the property, appellant believed that he was no longer guilty of the charges.  Appellant's witness was not represented by counsel and was not heard at the hearing.  According to the district court, appellant acknowledged in his examination under oath at the July 9, 2002 hearing that another person broke into the vehicles but appellant still pleaded guilty because he provided transportation away from the scene of the thefts.  Noting that appellant appeared to be changing his story, the district court stated, "[I]t seems to me that either the County Attorney ought to be given an opportunity to prove that you're a career offender and lock you up for as long as they can, or you've got a really good attorney and you ought to be acquitted."  The district court vacated the appellant's guilty plea and set a trial date for January 3, 2003. 

            Appellant appeared before the district court again on October 3, 2003, for the purpose of pleading guilty to one count of receiving stolen goods.  The prosecutor outlined a resolution reached by the parties as follows:

[Appellant] would plead guilty to receiving stolen goods and would be receiving a guidelines sentence.  The question that the defendant wants to resolve and must have input into is what his guidelines total is.  The defendant apparently believes that he has a guidelines criminal[-]history score that would yield a presumptively probation disposition.  If that turns out to be the case, the State has agreed that he'd get a guidelines sentence, so he'd have 21 months stayed and time served.  But in the event that he's not correct about that . . . if he in fact has a criminal[-]history score which would yield a guidelines presumptive commit, then he would get the commitment.

 

The prosecutor acknowledged that there was a legitimate dispute over appellant's criminal-history score but explicitly stated that the state believed that appellant's score would result in a presumptive commitment to prison. 

            During appellant's examination by his counsel, the following exchange regarding appellant's plea transpired:

Q.        Now, specifically, Mr. Hott, do you understand what your plea negotiation is?

A.        Yes, I do.

Q.        Do you understand the terms of it?

A.        Yes, I do.

Q.        Do you understand that you will not be allowed to withdraw your plea of guilty if it turns out that you have six points or more which would make this a presumptively commit to the Commissioner of Corrections?

A.        Yeah, that's what we agreed.

Q.        Okay, in other words, if it comes down that you have six points and you have to go to prison, you still have to follow through on this deal?

A.        Yes, sir.

Q.        As well as if you don't have six points, you get probation?

A.        Yes, sir.

Q.        Have you had enough time to discuss this case with [appellant's previous counsel] and myself?

A.        Yes, I have.

Q.        Do you have any questions you'd like to ask ourselves or the Court at this time?

A.        No, sir.

 

            On January 3, 2003, the probation officer determined that appellant had eight criminal-history points, qualifying appellant for a presumptive commitment under the sentencing guidelines.  Appellant disputed the probation officer's determination, and the district court ordered certified copies of the convictions.  The matter was continued for two weeks.  In the interim, the probation officer prepared a report and included certified copies of appellant's convictions, which substantiate that appellant has eight criminal-history points.  Appellant subsequently filed a motion to withdraw his guilty plea.  The parties appeared for sentencing on January 16, 2003.  Appellant appeared for the morning portion of the hearing, but fled prior to being sentenced.  Appellant was apprehended on September 8, 2003.

            Appellant appeared for sentencing before the district court on November 13, 2003.  The district court denied appellant's motion to withdraw his guilty plea and sentenced appellant to a 21-month commitment.  This appeal follows.

DECISION I

Appellant argues that the district court abused its discretion in denying his motion to withdraw his guilty plea because, given the disagreement over appellant's criminal-history score at the time the plea was entered, appellant's plea was not intelligent and failure to allow him to withdraw it would constitute a manifest injustice.  There is no absolute right to withdraw a guilty plea once it has been entered.  Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).  A court may allow a defendant to withdraw his plea upon "proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice."  Minn. R. Crim. P. 15.05, subd. 1.  A manifest injustice occurs if a defendant's plea is not accurate, voluntary, or intelligently entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  The decision whether to permit a defendant to withdraw his or her plea is left to the discretion of the district court.  The decision "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).

Appellant argues that his guilty plea was not intelligent because he believed that his criminal-history score would yield a presumptive probationary sentence, rather than a commitment to prison.  A defendant's plea is entered intelligently when he or she understands the charges, the rights being waived, and the consequences of the guilty plea.  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).  Appellant contends that he agreed to plead initially on July 9, 2002, because of assurances by the district court that he would receive a probationary sentence.  Moreover, appellant notes that at the second plea hearing on October 3, 2003, the prosecutor acknowledged legitimate confusion over appellant's criminal-history score.

Appellant has not, however, demonstrated that this disagreement over his criminal-history score rendered his plea unintelligent.  At the October 3, 2003 appearance, appellant acknowledged that his sentence was dependent on the resolution of the confusion regarding his criminal-history score.  The excerpted exchange between appellant and his counsel shows that appellant was fully informed about the consequences of his decision to plead and that he had sufficient time to discuss his decision with counsel.  As the supreme court has noted: "In a substantial number of cases, the prosecution, the defense counsel and the court must wait until after a pre-sentence investigation report has been prepared before they can accurately determine the presumptive sentence."  State v. Trott, 338 N.W.2d 248, 25253 (Minn. 1983).  Here, prior to the plea, the state explicitly stated its belief that appellant was a presumptive commit, and neither the court nor counsel promised or assured appellant that he would receive a probationary sentence.  See id. at 252 (noting that a defendant who received an unqualified promise of probation should be permitted to withdraw the plea if that promise is not fulfilled).

Because the district court made no representation as to appellant's criminal-history score or the presumptive sentence, appellant's plea was intelligent. Accordingly, the district court did not abuse its discretion by denying appellant's motion to withdraw his guilty plea. 

II

Appellant also argues that this court must permit him to withdraw his October 3, 2003 plea to avoid a manifest injustice because the district court's reference to the career-offender statute at appellant's July 9, 2002 hearing was coercive.  A plea is involuntary if it was entered in response to improper pressures or inducements.  Alanis, 583 N.W.2d at 577.  Appellant contends that the district court's reference caused pressure and anxiety in appellant and that appellant hastily accepted the plea to avoid prosecution under the statute.  Yet, the district court did not make any reference to the career-offender statute at appellant's October 3, 2003 hearing.  Rather, at that hearing, appellant was fully informed of the charges currently pending against him, as well as the consequences of those charges.  Thereafter, appellant stated in his examination that he did not have any additional questions.  Thus, there is no evidence in the record supporting appellant's assertion that his October 3, 2003 plea was involuntary.

III

Finally, appellant contends that the interests of fairness and justice compel withdrawal of appellant's October 3, 2003 plea.  A court may, in its discretion, permit a defendant to withdraw a plea before sentencing "if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea."  Minn. R. Crim. P. 15.05, subd. 2.  But a defendant is not given wide latitude to withdraw his plea without good reason because doing so "would undermine the integrity of the plea-taking process" and permit a defendant to use the guilty plea as a means of lengthening the proceedings.  Kim, 434 N.W.2d at 266.  The defendant bears the burden of showing that allowing withdrawal of the plea is fair and just.  Id.

Appellant argues that, given the genuine confusion surrounding his criminal-history score at the time of the plea, the court should have permitted withdrawal.  Appellant cites State v. DeZeler, 427 N.W.2d 231 (Minn. 1988), in support of this proposition.  But DeZeler is not dispositive because there both parties premised the plea on a mutual mistake in DeZeler's criminal-history score.  Id. at 235.  Here, the state informed the district court prior to the plea of its belief that appellant had a criminal-history score that warranted a presumptive commitment under the guidelines.  And appellant acknowledged in his examination that he was advised that resolution of his criminal-history score could result in a presumptive commitment.  Because there was no mutual mistake, the district court did not abuse its discretion in denying appellant's motion to withdraw his plea in the interests of fairness and justice.

IV

            In his pro se brief, appellant argues that he should be permitted to withdraw his plea because he brought evidence to the attention of the district court at the August 27, 2002 hearingthe testimony of the individual who committed the robberiesthat demonstrates appellant's innocence.  At that hearing, the district court heard appellant's summary of this witness's proposed testimony and concluded that it was not relevant to demonstrating appellant's innocence, as appellant has already acknowledged that he did not commit the actual robberies.  Because there was no new evidence of appellant's innocence at the October 3, 2003 hearing, the district court did not abuse its discretion by denying appellant's motion to withdraw his plea.  See Brown v. State, 481 N.W.2d 852, 853 (Minn. 1992) (upholding district court's denial of defendant's petition for postconviction relief requesting withdrawal of defendant's guilty plea where district court properly concluded that defendant's alibi testimony did not support his innocence, and defendant offered no additional evidence of innocence in support of his petition). 

            Affirmed.