Opinion
No. C8-01-665.
Filed December 18, 2001.
Appeal from the District Court, Hennepin County, File No. 98074637.
Mike Hatch, Minnesota Attorney General, and
Amy J. Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Bradford W. Colbert, Assistant Public Defender, (for appellant)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Hanson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant pleaded guilty to kidnapping and attempted first-degree murder. In her petition for post-conviction relief, she sought to withdraw her guilty plea, arguing that her attorney had promised her that she would not have to register as a predatory offender. The district court denied appellant's post-conviction petition. We affirm.
FACTS
Appellant Michelle Lynne Andersen was charged with three counts of kidnapping in violation of Minn. Stat. § 609.25 (1998), three counts of second-degree assault in violation of Minn. Stat. § 609.222 (1998), one count of making terroristic threats in violation of Minn. Stat. § 609.713 (1998), one count of aggravated robbery in violation of Minn. Stat. § 609.245 (1998), two counts of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342 (1998), one count of third-degree assault in violation of Minn. Stat. § 609.223 (1998), and one count of attempted first-degree murder in violation of Minn. Stat. § 609.185 (1998), for her participation in the events surrounding the kidnapping of a juvenile.
During plea negotiations, Andersen did not discuss the predatory-offender registration requirement of Minn. Stat. § 243.166 (1998) with the prosecutor. Before any plea agreement was reached, however, Andersen's attorney did discuss registration with the district court and both apparently believed that Andersen would not be required to register as a predatory offender if she did not plead guilty to the criminal sexual conduct charges. Andersen's attorney so advised Andersen and she ultimately pleaded guilty to one count of kidnapping and one count of attempted first-degree murder. All other charges were dismissed.
At the time she entered her guilty plea, neither Andersen, the state or the district court mentioned predatory-offender registration. Two months later, Andersen moved to withdraw her guilty plea for reasons unrelated to this appeal. The district court denied that motion and sentenced her to 270 months in prison. At the conclusion of sentencing, Andersen's counsel asked the district court about the predatory-offender registration requirement. The district court said that it believed that Andersen would not have to register.
After Andersen was imprisoned, the Department of Corrections told her that she was required to register. She petitioned for post-conviction relief, seeking to withdraw her guilty plea on the basis that her attorney promised her that she would not be required to register as a predatory offender. The district court denied Andersen's petition and she appealed.
DECISION I
A defendant does not have an absolute right to withdraw a guilty plea. Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). It is within the district court's discretion to allow withdrawal of a guilty plea and that decision is reviewed under an abuse-of-discretion standard. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). On appeal, this court is limited to determining whether sufficient evidence exists to sustain the district court's findings. Id.
A court must allow a defendant to withdraw a guilty plea upon proof that "withdrawal is necessary to correct a manifest injustice." Minn.R.Crim.P. 15.05, subd. 1. A manifest injustice occurs when a guilty plea is not accurately, intelligently, and voluntarily entered because entry of a plea is a waiver of the constitutional right to a trial. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). The burden is on the defendant to show manifest injustice. Id.
Andersen does not argue that her plea was inaccurate. She argues, instead, that her plea was not intelligent or voluntary because it was based upon the promise by her attorney that she would not have to register as a predatory offender.
Minnesota law requires a person to register as a predatory offender when convicted of certain enumerated offenses, or when charged with an enumerated offense but convicted of another offense arising out of the same set of circumstances. Minn. Stat. § 243.166, subd. 1 (1998). District courts are required to notify defendants of the registration requirement at the time of sentencing or, "[i]f a person required to register * * * was not notified by the court of the registration requirement at the time of sentencing or disposition, the assigned corrections agent shall notify the person of the requirements of this section." Id., subd. 2 (1998).
Andersen's attorney testified that he mistakenly believed that the only enumerated offenses with which Andersen was charged were the criminal sexual conduct charges, and that the dismissal of those charges as part of a plea bargain would eliminate the requirement of registration. Andersen's attorney further testified that he discussed this issue with the district court and the district court agreed.
Andersen's attorney was incorrect, for two reasons. Andersen pleaded guilty to kidnapping a minor victim in violation of section 609.25, which is an enumerated offense requiring registration. See id., subd. 1(1)(ii) (1998). Even if that offense were not an enumerated offense, Andersen would still be required to register because she had been charged with an enumerated offense that arose out of the same set of circumstances as the offense of which she was convicted. See id., subd. 1(1)(iii) (1998) ; Boutin v. LaFleur, 591 N.W.2d 711, 716 (Minn. 1999), cert. denied, 528 U.S. 973 (1999).
Andersen's claim, that her attorney's promise regarding registration is grounds to withdraw her guilty plea, fails for two reasons: (1) the promise related to collateral, not direct, consequences of the plea; and (2) the district court did not abuse its discretion when it concluded that the promise was not a material inducement to the plea.
Collateral Consequence
For a guilty plea to be intelligent, the defendant must be aware of the relevant circumstances and the direct consequences of the plea. Alanis, 583 N.W.2d at 577-78. Direct consequences are those that flow definitely, immediately, and automatically from the guilty plea. Id. at 578. In Kaiser, this court held that "because the consequences of failure to register are not definite, immediate, and automatic, and because the requirement is primarily regulatory rather than punitive," the predatory-offender registration requirement is collateral to the plea and a defendant is not entitled to withdraw a plea solely on the basis that the court failed to inform the defendant of the requirement at the time of the plea. Kaiser v. State, 621 N.W.2d 49, 54 (Minn.App. 2001), review granted (Minn. Mar. 13, 2001).
Andersen relies on the unpublished opinion of this court in Palmquist v. State, CX-99-1976, 2000 WL 890479 (Minn.App. July 3, 2000), which held that the registration requirement was "so definite, immediate, automatic, and mandatory that it is a direct and integral consequence of the guilty plea." Palmquist, 2000 WL 890479, at *3. To the extent that Palmquist contradicts Kaiser on the question of direct or collateral consequence, the district court was correct in following the opinion in Kaiser because it is published and thus is precedential.
Because Andersen's claim relates to collateral consequences of her plea, as defined in Kaiser, we conclude that the district court did not abuse its discretion when it determined that Andersen's plea was intelligently entered.
Material Inducement
For a guilty plea to be voluntary, it must not be made in response to improper pressures or inducements. Alanis, 583 N.W.2d at 577. Andersen claims that her plea was not voluntary because it was made in reliance upon an unfulfilled promise made by her defense counsel. She argues that such a promise is grounds to withdraw a guilty plea even if the promise relates to a collateral consequence of the plea, citing Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979).
Andersen also relies again on Palmquist, which held that a plea of guilty can be withdrawn where the plea bargain between the defendant and the prosecutor included the specific agreement that the defendant would not have to register. Palmquist, 2000 WL 890479, at *3. Palmquist is factually distinguishable because Andersen does not claim that non-registration was discussed with the prosecutor or became a part of the plea agreement.
In Strader, the court held that erroneous advice by defense counsel constituted ineffective assistance of counsel, warranting the withdrawal of a guilty plea, even though the advice related to a collateral consequence of the plea (i.e. parole eligibility). Strader, 611 F.2d at 65. Subsequent cases have limited the scope of Strader and have clarified that a claim of ineffective assistance of counsel must show: (1) that counsel's advice was not within the range of competence demanded of attorneys in criminal cases and (2) that the deficient performance prejudiced defendant. Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S.Ct. 366, 369 (1985) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064 (1984)). To meet the second test, a defendant who seeks to withdraw a guilty plea must show that, absent the attorney's erroneous advice, the defendant would not have pleaded guilty and would have insisted on a trial. Hill, 474 U.S. at 59, 106 S.Ct. at 370.
It is not necessary for us to decide the extent to which Strader would be followed in Minnesota because we conclude the district court did not abuse its discretion in finding that the erroneous advice of defense counsel about registration was not a material inducement of Andersen's plea. Thus, even under Strader and its progeny, defendant failed to prove the requisite prejudice.
When credibility determinations are crucial to the question whether a plea was voluntary, this court defers to the district court. State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn.App. 1997) (citations omitted), review denied (Minn. June 11, 1997). Here, in response to Andersen's argument that she pleaded guilty because of her counsel's advice on the registration requirement, the district court concluded that there were "other reasons" why Andersen pleaded guilty. Specifically, the court stated that "[s]he pled guilty since she was not going to jail for probably twice as long as she [would if convicted after trial]." The conclusion that the promise of defense counsel was not a material inducement to the plea was amply supported by the record before the district court.
First, when she entered her plea, Andersen confirmed that her written plea petition was accurate and that it described any and all agreements that were made with respect to her plea. That plea petition stated:
No one — including my attorney, any police officer, prosecutor, judge or any other person — has made any promises to me, to any member of my family, to any of my friends or other persons, in order to obtain a plea of guilty from me.
(Emphasis added.) Andersen did not challenge this statement in the postconviction proceeding.
Second, the transcript of the plea hearing does not include any mention of the issue of registration. Andersen acknowledged at the postconviction hearing that registration was not mentioned at the time of her plea and that it was not until she was sentenced that she first believed she would not need to register.
Third, in the same hearing, Andersen said that she objected to registering as a sex offender, but she did not object to registering as a predatory offender. Her pro se brief in this appeal argues that predatory-offender registration is something distinct from and preferable to sex-offender registration. In fact, she states that she would not object to registration as a predator. Contrary to Andersen's argument, she actually is required to register as a predatory offender, not as a sex offender. Although predatory-offender registration is sometimes referred to in practice as "sex-offender" registration, the statute does not refer to sex-offender registration and does not provide any separate requirement for sex-offender registration. The significance of this misperception by Andersen is that it seriously discredits any claim by her that she would not have entered a plea of guilty had she known that she would have to register as a predatory offender.
In sum, Andersen failed to prove that she would not have pleaded guilty if she had known that she would be required to register as a predatory offender, and the district court did not abuse its discretion in concluding that Andersen's plea was voluntary and was not made in response to improper pressure or inducements.
II
Andersen argues in her pro se supplemental brief that her attorney's mistaken belief that Andersen would not be required to register constitutes ineffective assistance of counsel. Andersen did not raise this argument before the district court. Generally, arguments not raised before the district court need not be addressed on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Moreover, any claim of ineffective assistance of counsel would be defeated by the district court's conclusion that Andersen's plea was intelligent and voluntary.