State of Minnesota v. Joshua David Wipper ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1025
State of Minnesota,
Respondent,
vs.
Joshua David Wipper,
Appellant.
Filed October 11, 2016
Affirmed
Larkin, Judge
Cass County District Court
File No. 11-CR-15-2252
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Christopher J. Strandlie, Cass County Attorney, Jeanine R. Brand, Assistant County
Attorney, Walker, Minnesota (for respondent)
Rich C. Kenly, Kenly Law Office, Backus, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
LARKIN, Judge
Appellant challenges his conviction of fifth-degree assault, arguing that the district
court erred by denying his presentence request for plea withdrawal under Minn. R. Crim.
P. 15.05, subd. 2. We affirm.
FACTS
Appellant Joshua David Wipper was charged with fifth-degree domestic assault on
December 11, 2015 by citation. That day, Wipper signed a Misdemeanor Statement of
Rights, indicating that he wanted to plead guilty and give up his right to a trial. The
Misdemeanor Statement of Rights referred to the offense described in the citation, and it
described the maximum sentence, the right to counsel, the right to trial, the presumption of
innocence, the burden of proof, the right to remain silent, the right to confront and cross-
examine witnesses, and the right to subpoena witnesses.
On January 13, 2016, Wipper appeared in district court with counsel and pleaded
guilty as charged. On January 26, Wipper filed a notice of substitution of counsel and a
motion to withdraw his plea. On March 10, Wipper appeared with his new attorney and
argued for plea withdrawal. Wipper provided testimony in support of withdrawal, asserting
that his first attorney told him he had to plead guilty, that he felt like he had no choice, and
that he did not understand what was going on during his plea.
The district court denied Wipper’s motion, because it did not “find sufficient reason
to allow the plea to be withdrawn.” This appeal follows.
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DECISION
Wipper contends that the district court erred by denying his motion for plea
withdrawal. “A defendant does not have an absolute right to withdraw a valid guilty plea.”
State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). Guilty pleas may be withdrawn only
if one of two standards is met. See Minn. R. Crim. P. 15.05 (setting forth the manifest-
injustice and fair-and-just standards for plea withdrawal).
The district court must allow plea withdrawal at any time “upon a timely motion
and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest
injustice.” Id., subd. 1. The district court may allow plea withdrawal before sentencing “if
it is fair and just to do so.” Id., subd. 2. “The court must give 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.” Id. A defendant bears the burden of advancing reasons to support
withdrawal. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). The state bears the burden
of showing prejudice caused by withdrawal. State v. Raleigh, 778 N.W.2d 90, 97 (Minn.
2010).
Although it is a lower burden, the fair-and-just standard “does not allow a defendant
to withdraw a guilty plea for simply any reason.” Theis, 742 N.W.2d at 646 (quotation
omitted). Allowing a defendant to withdraw a guilty plea “for any reason or without good
reason” would “undermine the integrity of the plea-taking process.” Kim, 434 N.W.2d at
266. We review a district court’s decision to deny a motion to withdraw a guilty plea under
the fair-and-just standard for an abuse of discretion, reversing only in the “rare case.” Id.
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Wipper argues that:
In the case at hand, it is upon this second, more lenient basis,
that the Appellant predicates his request. It is “fair and just” to
allow the Appellant to withdraw his plea. He did not know
what he was doing, only following what he was told by his
attorney that he had to plead guilty.
We first address Wipper’s assertion that “[h]e did not know what he was doing”
during the plea hearing, which is “evidenced by his conduct during the plea.” After
Wipper’s case was called at the plea hearing and his attorney informed the district court
that he wished to plead guilty, Wipper requested additional time to speak with his attorney
before tendering his plea, which the district court allowed. When the case was recalled,
Wipper stated that he understood that he would waive “all the rights that were earlier gone
through with [him],” including the right to a jury trial and the right to have the state prove
its case beyond a reasonable doubt. Wipper told the district court he was willing to waive
those rights and plead guilty. Later, at the plea-withdrawal hearing, Wipper testified that
he did not understand what was going on during his plea.
When denying his plea withdrawal, the district court described Wipper’s testimony
in support of withdrawal, noting that “Wipper testified that his attorney told him that he
had to plead guilty and that his attorney did not tell him that he had the right to take the
case to trial.” The district court also described Wipper’s conflicting testimony in support
of his plea, noting that
At the time of Mr. Wipper’s plea, the Court asked Mr. Wipper
if he had any questions, and then allowed [him] more time to
confer with his attorney. The Court specifically asked Mr.
Wipper if he understood that he was waiving his right to a jury
trial, and Mr. Wipper responded ‘Yes.’
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After describing Wipper’s inconsistent testimony, the district court ruled that it did
not “find sufficient circumstances exist to justify” plea withdrawal. We view the district
court’s reasoning as an implicit rejection of Wipper’s testimony in support of plea
withdrawal.
When a defendant makes inconsistent statements regarding the validity of his guilty
plea, “credibility determinations are crucial, [and] a reviewing court will give deference to
the primary observations and trustworthiness assessments made by the district court.” State
v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (Minn. June 11,
1997). We therefore defer to the district court’s implicit rejection of Wipper’s testimony
that he did not understand the proceedings.
We next address Wipper’s assertion that he pleaded guilty because his first attorney
told him he “had to plead guilty.” Wipper did not submit an affidavit or testimony from
his first attorney to support that assertion. Instead, Wipper relied on his own testimony
that his first attorney told him he had to plead guilty and that he felt that he did not have a
choice. The district court implicitly rejected that testimony, and we defer to its credibility
determination.
We last address Wipper’s assertion that there would be “absolutely no prejudice to
the state” if he were allowed to proceed to trial. “Even when there is no prejudice to the
state, a district court may deny plea withdrawal under rule 15.05, subdivision 2, if the
defendant fails to advance valid reasons why withdrawal is fair and just.” State v. Cubas,
838 N.W.2d 220, 224 (Minn. App. 2013), review denied (Minn. Dec. 31, 2013). Because
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Wipper has not provided valid reasons why withdrawal is fair and just, we do not consider
the potential-prejudice factor.
In sum, the district court did not abuse its discretion by concluding that Wipper did
not provide sufficient reasons for plea withdrawal. We therefore affirm.
Affirmed.
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