Opinion
No. A06-1652.
Filed: August 7, 2007.
Appeal from the District Court, Saint Louis County, File No. CR-06-1809.
Lori Swanson, Attorney General, and Alan Mitchell, St. Louis County Attorney, Leslie E. Beiers, Assistant County Attorney, (for respondent).
John Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, (for appellant).
Considered and decided by Klaphake, Presiding Judge; Randall, Judge; and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Appellant challenges his conviction of first-degree controlled-substance offense, arguing that the district court abused its discretion in denying a pre-sentence motion to withdraw his guilty plea. Appellant contends that he should be permitted to withdraw his plea on the bases of coercion and ineffective assistance by his attorney. We affirm.
FACTS
In February 2006, the Duluth police department received a tip from V.L., a local resident, that a black male, whose nickname was "C," was selling crack cocaine in the Duluth area. In an effort to substantiate V.L.'s claims, the police requested that V.L. assist the department in a series of controlled drug purchases from "C."
With the cooperation of V.L., on February 28, 2006, the police conducted a controlled drug purchase from "C," whose true identity, according to V.L., was appellant Terrell Grier. At the behest of the police, V.L. contacted appellant to arrange the purchase of crack cocaine and received pre-recorded money to complete the transaction. V.L. met appellant in downtown Duluth where she purchased a quantity of cocaine from him weighing 1.4 grams. Again, on March 1, 2006, the police, with the cooperation of V.L., conducted another controlled purchase from appellant following the same procedures. After completing the transaction with appellant, V.L. turned over 5.9 grams of cocaine to police.
On March 14, 2006, the police arranged a final controlled purchase of cocaine from appellant through V.L. The police conducted surveillance of the transaction between V.L. and appellant, and arrested appellant immediately after the purchase transpired. Appellant was searched at the scene of the arrest, and police discovered pre-recorded buy money in his wallet. After being transported to the police department, appellant was subjected to a more exacting search of his person that uncovered a small amount of marijuana and 25 tablets of oxycodone.
Appellant was subsequently charged with first-, second-, and fourth-degree controlled-substance crimes. Pursuant to a plea agreement, appellant pleaded guilty to first-degree controlled-substance crime in exchange for a dismissal of the additional charges and a 74-month executed sentence. At the sentencing hearing, appellant filed a motion to withdraw his guilty plea based on ineffective assistance and coercion by his attorney, and also moved to suppress evidence collected during his arrest. The court later denied appellant's motions, and appellant was sentenced to the stipulated sentence. This appeal followed.
DECISION
Appellant argues that the district court abused its discretion in denying his motion to withdraw his guilty plea. A defendant does not have an absolute right to withdraw a guilty plea after it has been accepted. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997); Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). Instead, the decision of whether to grant a plea withdrawal is "left to the sound discretion of the trial court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion." Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).
Under Minn. R. Crim. P. 15.05, subd. 2:
the court may also allow the defendant to withdraw a plea at anytime before sentence if it 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.
The defendant bears the burden of establishing a "fair and just" rationale for withdrawal of a guilty plea. State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991). But the showing required to withdraw a plea before sentencing is less than that required to withdraw a plea after sentencing to correct a "manifest injustice." State v. Williams, 373 N.W.2d 851, 853 (Minn.App. 1985) (comparing "fair and just" to the "manifest injustice" standard under Minn. R. Crim. P. 15.05, subd. 1 and 2).
Appellant asserts that withdrawal of his guilty plea is fair and just due to ineffective assistance of his trial counsel. Appellant alleges that his attorney informed him that "there was nothing [he] could do" to defend against the charges and maintains that a defense based on attacking the credibility of the police informant, V.L., who he claims is a known drug user who lied to the police about her habits, and a challenge of the constitutionality of the search of his person may have proven effective.
To obtain a plea withdrawal on the basis of ineffective assistance of counsel, appellant holds the burden of proving "not only that counsel's representation fell below an objective standard of reasonableness, but that he was prejudiced, in that `there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" State v. Wiley, 420 N.W.2d 234, 237 (Minn.App. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985), review denied (Minn. Apr. 26, 1988).
Generally, the test for the objective standard of reasonableness is satisfied when the attorney "exercis[es] the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances." State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). Courts are to presume that counsel's performance fell "within the wide range of `reasonable professional assistance.'" State v. Vick, 632 N.W.2d 676, 688 (Minn. 2001) (quotation omitted).
After reviewing the performance of appellant's counsel, we conclude that appellant has failed to demonstrate ineffective assistance. Beyond his allegation that trial counsel discounted available defense tactics, appellant fails to present any evidence of his counsel's deviation from objectively reasonable assistance.
The record reflects that appellant received reasonable, competent representation. In appellant's petition to enter a plea under Minn. R. Crim. P. 15, he represented to the court that his attorney: (1) satisfactorily represented his interests and fully advised him; (2) is "fully informed as to the facts" of the case; and (3) "discussed possible defenses to the crime" with him. Appellant also acknowledged he was aware of his right to a jury trial that would have included presentation of evidence and witness testimony in his presence. Appellant's counsel acted diligently. She prepared to litigate the matter and obtained dismissal of two of the charges. See Saliterman v. State, 443 N.W.2d 841, 843-44 (Minn.App. 1989) (holding that effective representation is provided where defense counsel is prepared for trial, informs the defendant of the plea bargain and the constitutional rights he is waiving upon pleading guilty, and obtains a dismissal of some charges against the defendant), review denied (Minn. Oct. 13, 1989).
Appellant does not explicitly claim he was uninformed of questionable defenses. His attorney opined that he lacked a viable defense. It appears from appellant's motion that he was aware of V.L.'s questionable credibility prior to entering a plea because, according to appellant, he had personally smoked crack cocaine with V.L. and her children in the past. Appellant presents no evidence to substantiate his claim of inadequate representation. We can presume, therefore, that appellant's counsel reviewed the evidence of guilt and all sensible defense strategies, including the possibility of challenging the search of appellant's person and the reputation and credibility of V.L., and determined that the most advantageous option for appellant was to accept a plea bargain. Vick, 632 N.W.2d at 688 (holding that unless the defendant provides evidence to the contrary, courts must presume that counsel provided reasonable assistance).
Appellant's argument for plea withdrawal remains deficient. He failed to demonstrate a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. The evidence of record against appellant is strong and appellant received a benefit by pleading guilty, which tends to support the plea agreement. See State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (noting that the state had a very strong case against the defendant and that several charges against him were dropped as a result of the plea in determining that defendant had failed to demonstrate a reasonable probability that he would not have pleaded guilty but for the errors of counsel).
Here, the record indicates that the police controlled nearly every aspect of each purchase. Law enforcement monitored each transaction by conducting surveillance, obtained audio and video footage, and determined that the money utilized to complete the final transaction, which was pre-recorded, matched the currency turned over to police by V.L. after completing the purchase. At a minimum, 14 officers, who are all listed as witnesses for the prosecution, were involved in some aspect of the sting operation, and many provided a detailed account of their participation and observations. Under the plea agreement, appellant avoided prosecution for two of the charges and received a 74-month sentence. The district court did not abuse its discretion in denying appellant's motion to withdraw his guilty plea on the basis of ineffective assistance of counsel.
Next, appellant contends that his guilty plea was involuntary because it was coerced by defense counsel. A valid guilty plea must be voluntarily entered. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). A plea is considered voluntary if it is not made in response to improper pressures, or inducements. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). Appellant's assertion is premised on the belief that he "felt forced to take a plea so [he] could get out faster." Appellant's argument contradicts his communications with the district court. In his rule 15 petition, appellant indicated that he: (1) was satisfied with his attorney's representation; (2) had sufficient time to discuss the case with his attorney; (3) was not acting under any medical or mental disability; (4) and was not operating under duress in accepting the plea. At the plea hearing, appellant again acknowledged that he had discussed the agreement with his attorney and indicated that he was accepting the plea of his own volition. With no indication of coercion in the record, and considerable evidence that appellant's acceptance of the guilty plea was autonomous and informed, appellant has not demonstrated that he was unduly pressured to accept the plea.