State of Minnesota, Respondent, vs. Steven Leslie Shrode, Appellant.

State of Minnesota, Respondent, vs. Steven Leslie Shrode, Appellant. A06-89, Court of Appeals Unpublished, March 20, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-89

 

State of Minnesota,

Respondent,

 

vs.

 

Steven Leslie Shrode,

Appellant.

 

Filed March 20, 2007

Affirmed Worke, Judge

 

Hennepin County District Court

File No. 04066259

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, Martha H. Dimick, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

Martin J. Costello, Tori K. Stewart, Hughes & Costello, 1230 Landmark Towers, 345 St. Peter Street, St. Paul, MN 55102 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Willis, Judge; and Crippen, Judge.[*]

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from a conviction for first-degree driving while impaired, appellant argues that the district court abused its discretion by denying his motion to withdraw his guilty plea after sentencing.  Appellant contends that a manifest injustice occurred when his attorney failed to assert the defense that the alcohol test taken by his employer was prohibited by statute from being disclosed to police, and that without the test results, and appellant's statement to police obtained as a result of disclosure of the test results, there was no evidence to support the charge.  We affirm.

 D E C I S I O N

Appellant Steven Leslie Shrode argues that the district court should have permitted him to withdraw his guilty plea in order to correct a manifest injustice.  "District courts have broad discretion in deciding whether to permit withdrawal of a guilty plea [and this court] will reverse that determination only if it can fairly be concluded that the district court abused its discretion."  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998) (citations omitted). 

Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  The district court, however, retains authority to allow plea withdrawal on proof "that withdrawal is necessary to correct a manifest injustice."  Minn. R. Crim. P. 15.05, subd. 1.  A manifest injustice occurs when a defendant can show that a guilty plea was not accurate, voluntary, and intelligent.  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

Appellant argues that his plea was not voluntary because his counsel was ineffective for failing to discuss with him the inadmissibility of chemical-test results obtained by his employer.  A plea is voluntary if it is not made in response to improper pressures or inducements.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). "[T]he voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases."  State v. Ecker,524 N.W.2d 712, 718 (Minn. 1994) (quotation omitted). 

A party alleging ineffective assistance of counsel must first show that counsel's performance was deficient, that is, it "‘fell below an objective standard of reasonableness.'" Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington,466 U.S. 668, 688, 104 S. Ct. 2052, 2068).  A strong presumption exists that counsel's performance fell within a wide range of reasonable assistance.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  We then consider whether the counsel's deficient performance prejudiced the defendant's case.  Ecker,524 N.W.2d at 718.  To show prejudice, a party must show that "‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedingwould have been different.'" Id.  (quoting Strickland,466 U.S. at 694, 104 S. Ct. 2068).  "A reasonable probability is a probability sufficient to undermine confidence in the outcome."  Id.  Thus, appellant must show that there is a reasonable probability that but for his counsel's alleged errors he would not have pleaded guilty.

Here, officers were dispatched to a business regarding an accident.  The company's vice-president, Lois Stevenson, told officers that appellant, an employee, crashed his vehicle into a gate.  Stevenson told officers that witnesses smelled alcohol on appellant and that appellant admitted to having consumed alcohol.  Stevenson also reported that appellant submitted to an Intoxilyzer test, which showed an alcohol concentration of .278.   

            The only test that appellant submitted to was administered by his employer.  Under Minn. Stat. § 181.954, subd. 2 (2006):

                        Test result reports and other information acquired in the drug or alcohol testing process are, with respect to private sector employees and job applicants, private and confidential information, and, with respect to public sector employees and job applicants, private data on individuals as that phrase is defined in chapter 13, and may not be disclosed by an employer or laboratory to another employer or to a third-party individual, governmental agency, or private organization without the written consent of the employee or job applicant tested.

 

Under Minn. Stat. § 181.954, subd. 4 (2006), "[p]ositive test results from an employer drug or alcohol testing program may not be used as evidence in a criminal action against the employee or job applicant tested."  There is no dispute that the test results were inadmissible.  But the district court found that the test results were not necessary to prove the count to which appellant pleaded guilty. 

            Appellant was charged with first-degree driving while impaired (DWI) and first-degree driving with an alcohol concentration of .10 or more.  See Minn. Stat. §§ 169 A. 20, subd. 1(1), (5), .24, subd. 1(1), (2) (2004).  But appellant pleaded guilty only to first-degree DWI.  The plea transcript shows that appellant's attorney asked him: "You understand that while you do believe that you have a challenge to [the testing procedures] that the count you will be pleading guilty to in this particular complaint is the under the influence charge; is that correct?"  Appellant indicated that he understood that the state did not need the test results to prove that he was driving while impaired.  And appellant admitted to the elements of the charge to which he pleaded guilty: he drove his vehicle to work while impaired by alcohol.  The guilty-plea transcript shows that appellant understood that test results were not necessary for the state to prove that he was guilty of DWI.  Therefore, even if appellant's attorney's failure to discuss with him the inadmissibility of his test results constituted a deficiency in his performance, this failure did not prejudice appellant's defense because he did not plead guilty to a charge that required the test results.   

            But appellant argues that he would not have pleaded guilty at all if his attorney had told him that the test results were inadmissible.  Appellant contends that there would have been no evidence against him because his statement to the police should have been suppressed as it was obtained as a result of the police knowing the test results.  Appellant's argument fails for two main reasons.  First, there was evidence that appellant was driving while impaired before the test was administered; appellant crashed his vehicle into a gate, witnesses smelled alcohol on his breath, and he admitted to Stevenson that he had consumed alcohol before driving to work.  Next, appellant admitted to a police officer that he was driving while impaired before the officer indicated that he knew the test results.  After the accident, appellant left the scene and a police officer called him to get a statement.  Appellant admitted that he hit a gate and told the officer that he submitted to a drug test because a drug test was administered whenever an accident occurred on the employer's property.  The officer asked appellant if he knew the test results and appellant initially denied knowing the results, but later stated that he believed "it was .23."  The officer asked appellant how much he thought he had to drink.  Appellant initially responded that he was not sure, but then told the officer that he had two drinks.  The officer also asked appellant if he felt intoxicated, and appellant responded that he felt a little intoxicated and that he was not in the right mind to go to work.  The officer then told appellant that the test results showed an alcohol concentration of .278.  Thus, there is sufficient evidence independent of the Intoxilyzer test results to show that appellant was guilty of the offense to which he pleaded, and that appellant would have pleaded guilty even if he knew that the test was inadmissible.  Appellant's guilty plea was voluntary and the district court did not abuse its discretion in denying appellant's motion to withdraw his guilty plea.

            Affirmed.

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