State of Minnesota, Respondent, vs. Shawn E. Bertram, 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This opinion will be unpublished and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

A03-1586

 

 

State of Minnesota,

Respondent,

 

vs.

 

Shawn E. Bertram,

Appellant.

 

 

Filed August 17, 2004

Affirmed

Halbrooks, Judge

 

 

Mille Lacs County District Court

File No. K9-02-71

 

 

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

 

Jan S. Kolb, Mille Lacs County Attorney, Courthouse Square, 525 2nd Street Southeast, Milaca, MN 56353 (for respondent)

 

John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

 

            Considered and decided by Minge, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court abused its discretion in denying his motion to withdraw his guilty plea before sentencing.  Appellant contends that the district court erred by (1) applying the wrong standard in considering his motion; (2) failing to conduct an evidentiary hearing on his motion; and (3) failing to appoint new counsel for the evidentiary hearing, when appellant's motion was based on ineffective assistance of counsel.  We affirm. 

FACTS

            By complaint filed January 15, 2002, appellant Shawn E. Bertram was charged with two counts of first-degree criminal sexual conduct.  The complaint alleged that on the evening of December 20, 2001, appellant engaged in forced sexual contact, including intercourse, with a 12-year-old girl while the girl and her siblings were being cared for in appellant's home by appellant's girlfriend.  The complaint alleged that appellant was intoxicated at the time of the incident, which occurred on the living room floor in the presence of the victim's brother.

            Defendant subsequently rejected a plea bargain offered by the state.  Two days into the jury trial, and following testimony from the victim's brother, appellant pleaded guilty to one charge pursuant to State ex rel. Norgaard v. Tahash, 261 Minn. 106, 113-14, 110 N.W.2d 867, 872 (1961), which held that a defendant who lacks independent recollection of the crime in this case, due to intoxication may nevertheless plead guilty on the conceded strength of the case against him.  The state agreed to drop the remaining charge.

At the plea hearing, appellant appeared with the two public defenders who had represented him since the beginning of the case.  In the course of extensive questioning from his counsel, appellant stated that he understood the rights he was retaining and waiving by entering a guilty plea, that he was pleading voluntarily, and that he was making no claim that he was innocent of the charges against him. 

            At the sentencing hearing, appellant's counsel announced appellant's wish to withdraw his guilty plea on the ground that his counsel had failed to give him "good advice."  The district court scheduled an evidentiary hearing on the motion to withdraw; the parties and the court agreed that because appellant's public defenders would likely testify as witnesses at the hearing, it would be inappropriate for them to represent appellant at the hearing. 

Before the hearing, appellant moved to withdraw his guilty plea, arguing that the withdrawal would (1) be fair and just; (2) not prejudice the state should it wish to retry the case; and (3) serve the interests of justice by requiring the state to prove its case to a jury and allowing appellant to confront witnesses.  Appellant did not argue that withdrawal was warranted by ineffective assistance of counsel or that he should be assigned new counsel for the hearing.  At the motion hearing, appellant's public defenders the same counsel who had previously represented him reiterated the grounds for withdrawal set forth in the motion, but did not raise the allegation of ineffective assistance.

The district court denied appellant's motion, reasoning that (1) the plea was knowing, voluntary, and intelligent; (2) appellant presented no valid reason to support his claim that allowing him to withdraw his plea would be fair and just; and (3) the state would be prejudiced by having to retry the case.  The court sentenced appellant to 180 months in prison.  This appeal follows.

D E C I S I O N

This court will reverse the district court's decision on a motion to withdraw a guilty plea only if the district court abused its discretion.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

Appellant first contends that the district court erred by applying the wrong standard in considering his motion.  The rules of criminal procedure set forth two bases mandatory and permissive for withdrawal of a guilty plea.  The mandatory basis, Minn. R. Crim. P. 15.05, subd. 1, provides that the district court "shall allow a defendant to withdraw his plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice."  Whether withdrawal is necessary to correct a manifest injustice is left "to judicial decision."  Minn. R. Crim. P. 15 cmt.   

The permissive basis, Minn. R. Crim. P. 15.05, subd. 2, provides that "[i]n its discretion the court may also allow the defendant to withdraw a guilty plea at any time before sentence if it is fair and just to do so," taking into consideration whether granting the motion would prejudice the prosecution.  The decision whether to allow a defendant to withdraw a guilty plea under the "fair and just" standard "is left to the sound discretion of the district court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the [district] court abused its discretion."  Kim, 434 N.W.2d at 266.  In a postconviction proceeding, the burden is on the petitioner to prove by a preponderance of the evidence that withdrawal of the guilty plea is warranted.  Minn. Stat. § 590.04, subd. 3 (2000).

Appellant contends that the district court erred by considering his motion under the "fair and just" standard when the basis of his motion to withdraw ineffective assistance of counsel required that the court conduct an evidentiary hearing to determine whether a manifest injustice occurred.  We disagree. 

We observe first that appellant's motion to withdraw his plea was not based on a claim of ineffective counsel.  Although appellant's counsel mentioned the ineffective-assistance claim at the February 2003 sentencing hearing, the claim was not asserted either in the motion to withdraw the plea or at the hearing on the motion.  Appellant has therefore waived that claim for the purposes of a direct appeal.  See State v. Abdisalan, 661 N.W.2d 691, 694 (Minn. App. 2003) (stating that this court will "address only those issues raised and argued before this court and that are shown by the record to have been presented to and considered by the district court"), review denied (Minn. Aug. 19, 2003). 

As to the applicable standard, appellant's presentencing motion to withdraw his plea of guilty raised only the question of whether withdrawal would be fair and just, without arguing that a manifest injustice existed.  He is therefore precluded from now asserting that his motion must be analyzed under the "manifest injustice" standard.  See id. at 695 (holding that where a defendant's submissions and arguments on his motion to withdraw a plea raise only the question of whether withdrawal would be fair and just, this court will apply only the fair-and-just standard of review to denial of the motion). 

Applying the "fair and just" standard, we conclude that the district court properly denied appellant's motion on the grounds that he did not show withdrawal was warranted and that the state would be prejudiced by withdrawal.  See Minn. R. Crim. P. 15.05, subd. 2.  Neither appellant's motion nor his attorney's argument on the motion referred to one reason favoring withdrawal under the "fair and just" standard.  Both in the motion and at argument, appellant's counsel merely set forth the standard without elaborating or referring to facts in the record.  The record also supports the district court's finding that allowing appellant to withdraw his plea would prejudice the state because the witnesses' memories and the strength of the prosecution's case would have diminished in the 18 months that had passed since the date of the offense. 

Even had appellant properly presented the ineffective-assistance claim to the district court thereby entitling him to review under the manifest-injustice standard the record demonstrates that he failed to meet his burden of showing that withdrawal was warranted based on ineffective assistance of counsel.  He testified at his plea hearing that he was "satisfied" with the representation he had been provided up to and during the trial, that his attorneys had discussed "all possible defenses" with him, and that his attorneys had "represented his interests fully and fairly."  Appellant's counsel prepared and litigated the matter, obtained dismissal of one of the charges after appellant decided to plead guilty, and questioned appellant extensively at the plea hearing about the rights he was waiving.  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). 

We observe, however, that an ineffective-assistance-of-counsel claim should generally be raised in a petition for postconviction relief rather than on direct appeal, because a postconviction hearing provides the court with "additional facts to explain the attorney's decisions."  Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997).  Here, this issue would be more effectively presented in a postconviction proceeding.  See, e.g., Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).  Appellant's ineffective-assistance claim is therefore preserved should he choose to pursue it in a postconviction proceeding.[1]

Appellant next contends that by failing to conduct an evidentiary hearing, the district court was not able to make a fully informed decision on his motion to withdraw his guilty plea.  But the district court did conduct a hearing on appellant's motion; appellant does not allege that he was prevented from testifying at the hearing or from submitting an affidavit in support of his motion, although he declined to do either.  And "a plenary evidentiary hearing need not be afforded [for a postconviction motion to withdraw a guilty plea] unless the court deems it necessary to resolve a disputed fact issue arising from conflicting affidavits or based upon assertions outside the record."  State v. Wolske, 280 Minn. 465, 474-75, 160 N.W.2d 146, 153 (1968).  Here, appellant asserted no facts disputed or otherwise supporting withdrawal.

Finally, appellant argues that the district court erred by failing to appoint a substitute attorney for the hearing on his motion.  The decision to appoint a substitute attorney is within the discretion of the district court.  State v. Fagerstrom, 286 Minn. 295, 299, 176 N.W.2d 261, 264 (1970).  "[T]he right of an indigent to have counsel does not give him the unbridled right to be represented by counsel of his own choosing. . . .  [A request for a substitution] will be granted only if exceptional circumstances exist and the demand seems reasonable."  Id.  "[E]xceptional circumstances are those that affect a court-appointed attorney's ability or competence to represent the client."  State v. Gillam, 629 N.W.2d 440, 449 (Minn. 2001). 

Here, appellant's counsel first stated his desire to withdraw his plea at the sentencing hearing, when the parties and the district court discussed the propriety of having appellant's existing counsel represent him at the hearing on his ineffective-assistance claim.  But appellant did not raise the ineffective-assistance claim in his subsequent motion to withdraw the plea or at the hearing on that motion, and the record contains no evidence that he ever actually asserted facts supporting the claim or requested a substitution. 

Caselaw indicates that generally, once an ineffective-assistance claim is raised and a potential conflict identified between an attorney acting as both advocate and witness at a hearing to determine her own incompetence, the district court should appoint substitute counsel or make a finding that the conflict is not sufficient to compromise the defense.  But where, as here, the claim consists of a bald allegation that is referenced only once, never pursued by motion, argument, or an actual request for a substitution, and never substantiated by factual assertions, we cannot assume that the district court erred in declining to appoint substitute counsel.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating that "on appeal [the district court's] error is never presumed" (quotation omitted)).  

            Affirmed.

 

[1]  Subsequent to submission of this appeal, the United States Supreme Court issued its decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).  Based on Blakely, appellant now asserts that his sentence should be reduced to the presumptive term of 144 months in the event his case is not remanded to the district court on his motion to withdraw the guilty plea.  Because the sentencing issue was not originally before us, we do not reach it now but do specifically preserve it for appellant to raise in a postconviction petition, should he choose to do so.