                           This opinion will be unpublished and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
                                      A15-1001

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                 Tylynne Lashawn Wilson,
                                        Appellant.

                                   Filed April 11, 2016
                                        Affirmed
                                       Reilly, Judge

                              Hennepin County District Court
                                 File No. 27-CR-14-8288

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Reilly,

Judge.

                          UNPUBLISHED OPINION

REILLY, Judge

         Appellant Tylynne Lashawn Wilson challenges his conviction of aiding an offender,

accomplice after the fact, arguing the district court erred in (1) denying his presentence
motion to withdraw his guilty plea; (2) denying his motion to withdraw his guilty plea on

the grounds that it was not intelligently made; and (3) imposing a severity level assignment

on an unranked offense. We affirm.

                                          FACTS

       On March 22, 2014, Wilson was a passenger in a vehicle that exchanged gunfire

with participants in another vehicle, resulting in gunshot injuries to two women. Police

officers located the vehicle shortly after receiving reports of the exchange. Wilson knew

the vehicle’s driver was a felon in possession of a firearm and attempted to hide the driver’s

firearm so he would not get in trouble. Police officers found the firearm and it was later

linked to discharged cartridges from the shooting. Wilson was charged by amended

complaint with 11 counts, including possession of a firearm by an ineligible person, three

counts of drive-by shooting, five counts of second-degree assault, one count of theft, and

aiding an offender after the fact.

       Pursuant to a negotiated plea agreement, Wilson entered a plea of guilty to felony

aiding an offender, accomplice after the fact, in violation of Minn. Stat. § 609.495, subd. 3

(2014), and the remaining counts were dismissed. The prosecutor informed the district

court at the plea hearing that the offense “is an unranked offense. Part of the agreement by

the parties is that the Court will consider ranking the offense level at 8.” The prosecutor

continued:

              Assuming that that ranking is acceptable to the Court, then the
              statute provides that Mr. Wilson could be sentenced up to one
              half of the statutory maximum for the underlying offense. In
              this case we have agreed that the [principles] underlying the
              offense is a felon in possession of a firearm under Minnesota


                                              2
              Statute [§] 624.713. The statutory maximum for that felony
              crime of violence is 15 years which translates . . . to 180
              months, and therefore the agreed upon sentence for Mr. Wilson
              will be one half of that which will be 90 months at the
              Commissioner of Corrections.1

       Defense counsel stated that Wilson would “agree [at the sentencing hearing] that

the Court can actually sentence him to the maximum sentence in this case. The maximum

sentence that we’ve contemplated would be the 15 years that [the prosecutor] just

mentioned.” The district court judge questioned Wilson on each of the rights he was giving

up and asked him if he understood his rights, and Wilson indicated that he did. Wilson

pleaded guilty to the charge and provided the factual basis supporting his plea for aiding

an offender, accomplice after the fact.

       Wilson sought to withdraw his guilty plea before sentencing and argued that

although there was “an agreed upon severity level eight,” Wilson “did not have the benefit

of full participation in that discussion.” The state disputed that Wilson had inadequate


1
  The district court must impose the presumptive sentence for a felony crime under the
Minnesota Sentencing Guidelines. Minn. Sent. Guidelines 2.D.1 (2014). Once the court
determines the appropriate criminal-history score for a defendant, the presumptive
sentencing range is determined by looking at the grid cell for the offender’s criminal history
score and the severity level of the offense. Minn. Sent. Guidelines 2.C.1. Appellant has a
criminal history score of 9 and the severity level of the offense is 8. This yields a
presumptive sentence of 111 months, with a permissible range of 92 months to 129 months.
The legislature also mandated a minimum sentence of 60 months for this offense. Minn.
Stat. § 609.11, subd. 5 (2014). When the presumptive sentence under the sentencing
guidelines is longer than the statutory minimum sentence, district courts should impose
whichever sentence is longer. Minn. Sent. Guidelines cmt. 2.E.03-04 (“[T]he presumptive
duration is the mandatory minimum sentence prescribed for the conviction offense or the
cell time [located in the sentencing grid], whichever is longer.”). Because the presumptive
range in the sentencing guidelines is higher than the statutory maximum sentence, the
district court imposed a 90-month sentence. Id.


                                              3
communication regarding the plea and introduced evidence that Wilson had numerous

professional visits with his attorney while in custody. The district court stated that there

were 15 court appearances and Wilson had “ample opportunity” to communicate with his

attorney. The district court concluded that “the plea transcript indicates that the defendant

clearly understood the charges and the consequences of pleading guilty” and denied

Wilson’s motion to withdraw his guilty plea.

       At sentencing, the district court assigned Wilson a severity level 8 under the

Minnesota Sentencing Guidelines and sentenced Wilson to 90 months in prison. The

district court explained that the 90-month sentence is half of the statutory maximum for a

felon in possession and that Wilson’s criminal history score coupled with the circumstances

of the offense justified the sentence. This appeal followed.

                                       DECISION

                                                I.

       Wilson challenges the denial of his presentence motion to withdraw his guilty plea

and claims that the district court abused its discretion by failing to consider whether it was

fair and just to allow Wilson to withdraw his plea. A criminal defendant does not have an

absolute right to withdraw a guilty plea once entered. Perkins v. State, 559 N.W.2d 678,

685 (Minn. 1997). The district court may allow a defendant to withdraw his guilty plea

prior to sentencing if the defendant proves that it is “fair and just” to do so. State v. Raleigh,

778 N.W.2d 90, 97 (Minn. 2010); Minn. R. Crim. P. 15.05, subd. 2. The decision of

whether to withdraw a presentence guilty plea is left to the sound discretion of the district




                                                4
court and will be reversed only in the “rare case” in which the district court abused that

discretion. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

       In analyzing a motion to withdraw a guilty plea under the fair-and-just standard, a

district court considers: (1) the reasons the defendant advances to support withdrawal of

the guilty plea; and (2) whether granting the motion prejudices the state. Minn. R. Crim.

P. 15.05, subd. 2. Underlying this rule is the principle that “giving a defendant an absolute

right to withdraw a plea before sentence would undermine the integrity of the plea-taking

process.” Kim, 434 N.W.2d at 266. The defendant bears the burden of advancing sufficient

reasons to support plea withdrawal. Raleigh, 778 N.W.2d at 97. If that burden is met, the

burden shifts to the state to show prejudice caused by withdrawal of a plea. Id.

       With regard to the first factor, Wilson sought to withdraw his guilty plea on the

grounds that he did not understand the terms of his plea and did not have time to discuss

the plea with his attorney. The district court rejected this argument, finding that there “were

a total of 15 court appearances up until the time of the plea, many of them substantive court

appearances” as well as “ample opportunity” for Wilson to consult with counsel. The

district court reviewed a 21-page transcript of the plea hearing where the plea negotiation

was explained. Pursuant to the plea agreement, Wilson agreed to enter a plea of guilty to

felony aiding an offender, accomplice after the fact in exchange for dismissal of the

remaining counts. The parties also agreed that the district court would rank the offense

level at 8, and that Wilson could be sentenced “up to one half of the statutory maximum

for the underlying offense,” or 90 months. Wilson indicated on the record that he wished

to enter a plea of guilty and provided a factual basis to support his plea. Based upon the


                                              5
record, the district court concluded that Wilson “clearly understood the charges and the

consequences of pleading guilty” and denied Wilson’s motion to withdraw his guilty plea.

The district court considered the appropriate factors under the fair-and-just standard in

reaching this decision. See State v. Abdisalan, 661 N.W.2d 691, 694 (Minn. App. 2003)

(affirming district court’s decision to deny plea-withdrawal under the fair-and-just standard

where “[n]othing objectively in the record suggests that [defendant] failed to comprehend

the nature, purpose, and consequences of his plea”). The evidence in the record establishes

a valid factual basis for the district court’s decision denying the withdrawal motion and we

conclude that the district court did not err.

       Because Wilson did not satisfy his burden of showing that it was fair and just to

allow him to withdraw his plea, the district court did not consider whether the state would

be prejudiced by the plea-withdrawal. “[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

(Dec. 31, 2013). The district court acted within its discretion by declining to address the

possible prejudice to the state where Wilson failed to advance valid reasons why plea-

withdrawal would be fair and just.

                                                II.

       Wilson argues that his guilty plea is invalid because he did not understand the direct

consequences of his plea. A manifest injustice exists if a guilty plea is invalid. Raleigh,

778 N.W.2d at 94 (citing State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007)). “To be

constitutionally valid, a guilty plea must be accurate, voluntary, and intelligent.” Id. The


                                                6
defendant bears the burden of demonstrating that the plea was invalid. Id. The validity of

a plea presents a question of law that we review de novo. Lussier v. State, 821 N.W.2d

581, 588 (Minn. 2012).

       Wilson argues his plea was not intelligent because he did not understand how the

offense would be ranked and he did not understand how the maximum sentence would be

calculated. Wilson does not contest that his plea was not accurate or involuntary. The

intelligence requirement ensures that a defendant “understands the charges, understands

the rights he is waiving by pleading guilty, and understands the consequences of his plea.”

State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). The state charged Wilson with felony

aiding an offender, accomplice after the fact. The offense was unranked and the parties

agreed to “rank[] the offense level at 8.” The parties further agreed upon a 90-month prison

sentence. Wilson agreed that he understood the charges against him and wanted to proceed

with the plea. The district court questioned Wilson on each of the rights he was giving up

and asked him if he understood. Wilson confirmed that he understood the rights he was

giving up. Wilson acknowledged that no one forced him to make the decision to plead

guilty, and he entered the plea freely and voluntarily. Wilson entered a plea of guilty to

the offense and provided an adequate factual basis to support the charge. We determine

the intelligence requirement is satisfied.

       Wilson argues that he was confused by the maximum sentence imposed for the

offense and did not have adequate time to discuss the issue with his attorney. The record

does not support Wilson’s argument. Wilson had 14 visits with his attorney and 15 court

appearances up to the time of his plea. The district court determined this amounted to


                                             7
“ample opportunity” for Wilson to communicate with his attorney, and we agree. The

district court reviewed the 21-page transcript from the plea hearing and concluded that “the

plea transcript indicates that the defendant clearly understood the charges and the

consequences of pleading guilty.” The district court also noted that “the issue of the

unranked offense . . . was clearly covered in the transcript and the colloquy at the plea, in

addition to which Mr. Wilson benefits from the negotiation given the 90 months he agreed

to.” Our de novo review of the record supports the district court’s determination and we

hold that Wilson is not entitled to withdraw his plea on the basis that it was not intelligently

made.

                                              III.

        Wilson contends that the district court erred by assigning a severity level 8 to the

offense.   The Minnesota Sentencing Guidelines were created to ensure “uniformity,

proportionality, rationality, and predictability in sentencing.” State v. Misquadace, 644

N.W.2d 65, 67 (Minn. 2002); see also Minn. Sent. Guidelines I.A (2014). A district court

must impose the presumptive guidelines sentence unless “identifiable, substantial, and

compelling circumstances” warrant departure. Minn. Sent. Guidelines II.D (2012). Aiding

an offender as an after-the-fact accomplice is an unranked offense. Minn. Sent. Guidelines

cmt. II.A.03 (2012). Assignment of a severity level for an unranked offense is within the

district court’s discretion and will only be disturbed upon an abuse of discretion. State v.

Kenard, 606 N.W.2d 440, 442 (Minn. 2000); Minn. Sent. Guidelines cmt. II.A.05 (2012)

(stating that when an offense is unranked, “judges should exercise their discretion by

assigning . . . a severity level which they believe to be appropriate”).


                                               8
       When assigning a severity level to an unranked offense, the district court considers

              the gravity of the specific conduct underlying the unranked
              offense; the severity level assigned to any ranked offense
              whose elements are similar to those of the unranked offense;
              the conduct of and severity level assigned to other offenders
              for the same unranked offense; and the severity level assigned
              to other offenders who engaged in similar conduct.

Kenard, 606 N.W.2d at 443. No single factor is controlling and the list is not exhaustive.

Id. Here, the district court imposed a severity level of 8 and appropriately analyzed the

Kenard factors in doing so.

       In evaluating the first factor, the district court considered the evidence of the gravity

of the underlying conduct, which demonstrated that Wilson was present in the car when

the drive-by shooting occurred and made efforts to conceal a firearm and cover up the

offense.   The district court found that Wilson was present during the offense and

participated in the crime.

       With respect to the second factor, the district court considered the severity level

assigned to the underlying drive-by shooting offense. The district court determined that

“it’s appropriate to rank it at the offense level of the crime . . . in which he participated and

give him a sentence of half what the co-defendants, who had a more active role, would get.

And that is the 90 months[.]” Wilson argues the district court erred by relying on the drive-

by shooting as the underlying crime of violence. However, a court may consider the

specific conduct of the defendant in its Kenard analysis. “Specific conduct” is “conduct

underlying proof of the elements of the offense.” Kenard, 606 N.W.2d at 443 n.3. While

such conduct cannot justify an upward departure, it may be used to set the severity level



                                               9
for unranked offenses. Id. (citation omitted). “Once the sentencing court has determined

the severity level by considering the conduct underlying proof of the elements of the

offense, it is not prohibited, in appropriate cases, from considering whether there are also

aggravating or mitigating circumstances that would justify departure.”          Id.   Wilson

admitted to concealing a firearm used in a drive-by shooting that injured two women. The

district court did not err by considering his conduct in its Kenard analysis.

       With respect to the third factor, the district court determined that a severity level 8

was appropriate for “somebody with Mr. Wilson’s criminal history.” Wilson’s conduct is

similar to cases assigning a severity level 8 for accomplice after the fact crimes. See, e.g.,

Kenard, 606 N.W.2d at 444-45 (discussing caselaw assigning severity level rankings of 8

to 10 for accomplice after the fact crimes); State v. Skipintheday, 704 N.W.2d 177 (Minn.

App. 2005), aff’d, 717 N.W.2d 423 (Minn. 2006) (ruling district court did not abuse

discretion by assigning severity level 8 to accomplice after the fact crime). And with

respect to the final factor, the district court considered what sentence his codefendants, who

had a more active role in the drive-by shooting, would face.

       We conclude that the district court properly analyzed the Kenard factors and

articulated its reasoning on the record when it assigned a severity level 8 to Wilson’s

offense. We therefore determine that the district court did not abuse its discretion in

determining that the Kenard factors weighed in favor of a severity level 8 ranking.

       Affirmed.




                                             10
