State of Minnesota, Respondent, vs. Angel Carrera-Valdez, 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This opinion will be unpublished and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

A04-630

 

State of Minnesota,
Respondent,
 
vs.
 
Angel Carrera-Valdez,
Appellant.

 

Filed November 23, 2004

Affirmed; motion to strike granted

Minge, Judge

 

Stearns County District Court

File No. K3-02-3889

 

 

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

 

Janelle Kendall, Stearns County Attorney, Shan C. Wang, Assistant County Attorney, 705 Courthouse Square, Administration Center Room 448, St. Cloud, MN 56303 (for respondent)

 

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Randall, Judge; and Willis, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

Appellant challenges the revocation of his probation for and seeks to withdraw his guilty plea to a controlled substance crime in the third degree.  Because the withdrawal of the guilty plea is not properly before this court, we do not consider that request.  Because the district court did not abuse its discretion in revoking probation, we affirm.  Appellant has also filed a motion to strike respondent's appendices A and B and references to those appendices in respondent's brief.  That motion is granted.

 

FACTS

 

            Based on incidents that occurred in July 2002, appellant Angel Carrera-Valdez was charged with a third-degree controlled substance crime in violation of Minn. Stat.     § 152.023, subd. 1(1) (2002), and child endangerment in violation of Minn. Stat. § 609.378, subd. 1(b)(2) (2002).  Pursuant to an agreement, appellant pleaded guilty to the controlled substance crime and the charge of child endangerment was dismissed.  On April 24, 2003, the district court sentenced appellant to 51 months but stayed execution of the sentence for up to 20 years and placed appellant on probation in Stearns County subject to certain conditions.  The conditions included: follow the recommendations of a chemical dependency evaluation; pay restitution and fines in the amount of $245; provide a DNA sample; abstain from use of alcohol or any mood-altering substances; and submit and pay for random chemical testing. 

            Subsequently, appellant's probation agent reported to the Department of Corrections that appellant had violated the terms of his probation and the Department recommended to the district court that appellant's stay of execution be vacated.  Prior to the probation revocation hearing, appellant was charged and pleaded guilty to receipt of stolen property in violation of Minn. Stat. § 609.53 (2002).

At appellant's probation revocation hearing, he dismissed his attorney and represented himself.  At the hearing, the probation agent testified that appellant: (1) failed to pay any part of his financial obligations; (2) failed to complete chemical dependency treatment; (3) failed to submit to random testing; (4) failed to report to the probation agent; and (5) committed a new crime of receiving stolen property.  Appellant testified that he tried to comply with the probation requirements but admitted to failing to make payments for his financial obligations, failing to complete chemical dependency treatment, and committing a new felony.  The district court found that appellant violated probation by clear and convincing evidence because appellant failed to remain law abiding, which was an implied condition of his probation, and ordered appellant to serve his 51-month jail sentence. 

Appellant asserts that his probation violations are minor, that in the receipt of stolen property case, the district court placed him on probation, and that the district court in this case failed to consider mitigating factors favoring continued probation rather than execution of the sentence.  Appellant also seeks to withdraw his plea agreement and strike portions of respondent's brief and appendices, which include documents that are not part of the record.  We affirm the revocation of probation, deny the request to withdraw the guilty plea, and grant the motion to strike. 

D E C I S I O N

 

I.

 

The threshold issue is whether appellant can withdraw his guilty plea.  Appellant raises this issue in his pro se supplemental brief, in which he argues that he was pressured into the agreement, received ineffective counsel, and due to a language barrier did not understand the proceedings. 

A defendant who challenges a judgment of conviction against him based on an invalid guilty plea may file a postconviction petition in district court or may appeal directly to this court within 90 days of final judgment.  Minn. Stat. § 590.01 (2002); Minn. R. Crim. P. 28.02, subd. 4(3); Brown v. State, 449 N.W.2d 180, 182-83 (Minn. 1989).  The appellate court typically will not entertain a defendant's complaint regarding the acceptance of his or her guilty plea unless the trial court has had an opportunity to hear the matter.  State v. Hemstock, 276 Minn. 457, 458, 150 N.W.2d 562, 563 (1967); cf. State v. Newcombe, 412 N.W.2d 427, 430-31 (Minn. App. 1987) (allowing direct appellate review of the factual basis for a Goulette plea because the defendant's protestations of innocence already resulted in full consideration of the issue at the trial court level), review denied (Minn. Nov. 13, 1987).  Thus, absent proper and timely challenge to a guilty plea, this court will not address a defendant's request to withdraw a plea. 

Here, appellant did not challenge his plea in the district court, did not file a direct appeal, and did not pursue a postconviction petition.  Rather appellant includes the challenge to his guilty plea in this probation revocation appeal.  Because appellant has not properly challenged his guilty plea and subsequent conviction in a direct appeal or postconviction petition, the plea is not properly before the court, and we do not further consider this issue.[1]

II.

The next issue is whether the district court abused its discretion by revoking appellant's probation.  A district court "has broad discretion in determining if there is sufficient evidence to revoke probation and should be reversed only if there is a clear abuse of that discretion."  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  Minn. R. Crim. P. 27.04, subd. 3(2) provides that in a revocation hearing, "[i]f the court finds that a violation of the conditions of probation has not been established by clear and convincing evidence, the revocation proceedings shall be dismissed, and the probationer's probation continued under the conditions theretofore ordered by the court."  When revoking probation, the district court must: "1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that need for confinement outweighs the policies favoring probation."  Austin, 295 N.W.2d. at 250. 

            Appellant challenges revocation under the second factor of Austin's three-part test arguing that some of appellant's probation violations were unintentional and excusable.[2]  Specifically, appellant claims that he failed to complete the aftercare portion of his chemical dependency treatment because he moved to another county and reported to his probation agent in Benton County rather than his agent in Stearns County.  In addition, appellant argues and the district court acknowledged that appellant's incarceration since July 2003 is a mitigating factor in his failure to pay his financial obligation.  Consequently, appellant concludes that revoking his probation for these two violations is an abuse of discretion.  This argument is unpersuasive.  Appellant cannot limit application of the second Austin factor to three of appellant's five violations.  He committed another felony offense and did not follow through with random drug testing.  Even if the random testing may have been frustrated by the move to another county and a new probation agent, the record clearly supports the conclusion that appellant violated the second Austin factor by committing a new felony.

Next appellant asserts that the third Austin factor was not satisfied because the need for confinement does not outweigh the policies favoring probation.  The supreme court has stated that the third factor is satisfied if

(i) confinement is necessary to protect the public from further criminal activity by the offender; or

(ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or

(iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.

 

Austin, 295 N.W.2d at 251 (citing A.B.A. Standards for Criminal Justice, Probation § 5.1(a) (Approved Draft 1970)).

Appellant emphasizes that the new felony is a non-violent property crime for which appellant was to receive a stayed sentence and that it was not sufficient basis to revoke probation. [3]  However, we do not decide this matter as if we were the trial court.  We review to determine whether the district court abused its discretion.  Austin, 295 N.W.2d at 249-50.  The circumstances included in the third Austin factor have support in the record.  Appellant was arrested and charged with a new felony less than three months into his twenty-year probation.  Although neither the original crime nor the receiving stolen property incident are clear violent crimes, both are felonies.  Even as a property crime, the offense of receiving stolen property is an adequate basis for the district court to conclude that confinement is necessary to protect the public from further criminal activity.  There is a public interest in being protected against those who aid in crimes of theft.  Second, appellant failed to comply with the requirements of a chemical dependency treatment program.  This is sufficient to support the determination that the treatment that appellant requires can most effectively be provided in a confined setting.  Finally, the district court did not abuse its discretion in concluding that the seriousness of the violation would be unduly depreciated if it failed to revoke appellant's probation following his conviction for a new felony.  Although this may have been a close call for the district court, the record contains sufficient evidence to support the conclusion that the third Austin factor was met.    

III.

            The last issue is whether we should strike appendices A and B of respondent's brief, which consist of a sentencing worksheet and pre-sentence investigation report prepared incident to appellant's conviction for receipt of stolen property.  These documents were not reviewed by the district court in ruling on appellant's probation violation and are not part of the district court record. 

The record on appeal is only "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings[.]"  Minn. R. Civ. App. P. 110.01.  This court may not base its decisions on matters outside the record.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  References in a party's brief to stricken extra-record material are also stricken.  Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534, 543-44 n.7 (Minn. 2001).  Therefore, this court will strike and not consider in its decision appendices A and B or references to those appendices in respondent's brief. 

Because the district court did not abuse its discretion in revoking probation, we affirm.  We deny appellant's request to withdraw his guilty plea because it is not properly before the court.  Appellant's motion to strike portions of the respondent's brief and appendices as being outside the record is granted.

Affirmed, motion to strike granted.

[1] Appellant is free to pursue a postconviction petition, but a defendant has no absolute right to withdraw a guilty plea.  See Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  Moreover, a criminal defendant is permitted to withdraw a guilty plea after sentencing only "upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice."  Minn. R. Crim. P. 15.05, subd. 1; Alanis, 583 N.W.2d. at 577.  

[2] Appellant does not challenge the first Austin factor, which requires the district court to designate the specific violation. 

[3] Appellant makes assumptions regarding the reasons that he was to receive a stayed sentence for the crime of receiving stolen property in Benton County, which are unsupported by the record and not considered by the court in resolving this appeal.