                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2016).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-0427

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                  Clemente Ramirez-Diaz,
                                        Appellant

                                  Filed January 17, 2016
                                         Affirmed
                                      Worke, Judge

                              Hennepin County District Court
                                File No. 27-CR-15-12429

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,

Judge.

                          UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges his first-degree criminal-sexual-conduct conviction, arguing

that the district court abused its discretion by denying his motion to withdraw his guilty

plea before sentencing. We affirm.
                                          FACTS

       From 2008 to 2012, appellant Clemente Ramirez-Diaz lived with his cousin and his

cousin’s family. In December 2014, officers received a report that Ramirez-Diaz sexually

assaulted his cousin’s juvenile daughter. The victim reported that in the spring of 2009 or

2010, Ramirez-Diaz sexually assaulted her approximately ten times. The victim reported

that Ramirez-Diaz fondled her on and near her bare genitals, made her stroke his bare penis

with her hand, and penetrated her vagina with his penis. On May 7, 2015, a complaint was

filed charging Ramirez-Diaz with first-degree criminal sexual conduct.

       On August 3, 2015, Ramirez-Diaz appeared for his jury trial, but decided to plead

guilty to first-degree criminal sexual conduct. At sentencing on September 14, 2015,

Ramirez-Diaz requested to withdraw his guilty plea, claiming that his plea was invalid

because his attorneys coerced him into pleading guilty and failed to advise him that his

guilty plea would result in his deportation.

       Following an evidentiary hearing, the district court denied Ramirez-Diaz’s motion

to withdraw his guilty plea, concluding that plea withdrawal was not necessary to correct

a manifest injustice nor was it fair and just to allow Ramirez-Diaz to withdraw his plea.

       At sentencing, Ramirez-Diaz’s attorney argued for a downward durational

departure. The district court found that no mitigating circumstances existed to support a

departure and sentenced Ramirez-Diaz to the presumptive sentence of 144 months in prison

and a ten-year conditional-release term. This appeal follows.




                                               2
                                      DECISION

       Ramirez-Diaz argues that the district court abused its discretion by denying his

motion to withdraw his guilty plea before sentencing because it was fair and just to do so.

       A district court must allow withdrawal of a guilty plea at any time when “necessary

to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A district court may

allow a defendant to withdraw a guilty plea “before sentenc[ing] if it is fair and just to do

so.” Id., subd. 2. Under the fair-and-just standard, a district court considers two factors:

“(1) the reasons a defendant advances to support withdrawal and (2) [any] prejudice

granting the motion would cause the [s]tate given reliance on the plea.” State v. Raleigh,

778 N.W.2d 90, 97 (Minn. 2010) (citing Minn. R. Crim. P. 15.05, subd. 2).

       While the fair-and-just standard “is less demanding than the manifest injustice

standard,” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007), a defendant does not have

an absolute right to withdraw a plea before sentencing, Kim v. State, 434 N.W.2d 263, 266

(Minn. 1989), and may not withdraw a guilty plea “for simply any reason.” State v.

Farnsworth, 738 N.W.2d 364, 372 (Minn. 2007). The burden is on the defendant to show

the reasons entitling him to withdrawal of his guilty plea. Kim, 434 N.W.2d at 266. The

district court’s decision to deny a motion to withdraw a guilty plea under the fair-and-just

standard is reviewed for an abuse of discretion and will be reversed only in the “rare case.”

Raleigh, 778 N.W.2d at 97.

Reasons to support withdrawal

       Ramirez-Diaz first argues that it was fair and just to allow him to withdraw his guilty

plea because he asserted his innocence. Ramirez-Diaz asserted his innocence several times


                                              3
after pleading guilty. Following the guilty plea, the district court ordered a presentence

investigation (PSI) and a sex-offender evaluation. During the PSI, Ramirez-Diaz denied

that the sexual abuse occurred, claiming that the victim falsely reported because she was

mad at him for forbidding her from having sexual contact with boys. He similarly denied

the sexual abuse during the sex-offender evaluation. And in the affidavit supporting his

motion to withdraw his guilty plea, Ramirez-Diaz again asserted his innocence.

       But when Ramirez-Diaz pleaded guilty, he agreed that he was pleading guilty

because he was guilty. Additionally, when establishing the factual basis to support his

guilty plea, Ramirez-Diaz admitted that he penetrated the victim’s vagina with his tongue.

This act is not referenced in the complaint. The district court found that Ramirez-Diaz’s

guilty plea was accurate because there was no disagreement about the factual basis.

Ramirez-Diaz does not now challenge the accuracy of the factual basis. Thus, while

Ramirez-Diaz asserted his innocence after he pleaded guilty, he has not challenged the

factual basis supporting his guilty plea, which establishes that he committed first-degree

criminal-sexual conduct.

       Ramirez-Diaz also argues that it was fair and just to allow him to withdraw his guilty

plea because the district court was impermissibly involved in plea negotiations. Ramirez-

Diaz did not raise this claim when he moved to withdraw his guilty plea. See Roby v. State,

547 N.W.2d 354, 357 (Minn. 1996) (stating that an appellate court will not consider matters

not argued to and considered by the district court). Moreover, there is nothing in the record

to support this assertion.




                                             4
       During the evidentiary hearing on Ramirez-Diaz’s motion to withdraw his guilty

plea, one of his attorneys testified that on the day of Ramirez-Diaz’s jury trial she met with

the prosecutor and district court to negotiate a plea and reached an agreement that could

result in a shorter sentence. She communicated the agreement to Ramirez-Diaz, who

wanted to think about the offer. Ramirez-Diaz’s attorney left to attend to a different matter,

and his other attorney took over representation. When Ramirez-Diaz pleaded guilty, it was

a straight plea. He indicated that he understood that there was no offer from the state. And

the district court noted on its referral form to probation for the PSI that Ramirez-Diaz

entered a straight plea and that the district court was considering a downward durational

departure.

       Ramirez-Diaz argues that the record shows that the district court met with the parties

to discuss “possible pleas” and reached an agreement that involved the district court’s

consideration of a downward departure upon a straight plea. A district court may not

“usurp the responsibility of counsel or . . . improperly inject itself into plea negotiations.”

State v. Anyanwu, 681 N.W.2d 411, 414 (Minn. App. 2004). But a district court’s

involvement in a plea negotiation is not per se improper because a district court “has a

delicate role in a plea negotiation and necessarily plays a part in any negotiated guilty plea.”

Id. at 415. The record shows only that Ramirez-Diaz pleaded guilty and that the district

court agreed to consider a downward durational departure. The district court’s involvement

was not improper and does not support Ramirez-Diaz’s argument that it was fair and just

to allow him to withdraw his guilty plea.




                                               5
       Ramirez-Diaz next argues that it was also fair and just to allow him to withdraw his

guilty plea because he was represented by different attorneys. He presents this argument

without advancing an ineffective-assistance-of-counsel claim. Ramirez-Diaz first claims

that when he pleaded guilty he was represented by his immigration attorney who convinced

him that if he pleaded guilty he would not be deported because he was married to a United

States citizen. Second, he claims that his attorneys failed to fully communicate the plea

offer to him. Third, he claims that his attorneys failed to advise him that he was subject to

a ten-year conditional-release term. Finally, he claims that his sentencing attorney was

unprepared.

       At the outset, Ramirez-Diaz fails to provide any support for his assertion that he

should be allowed to withdraw his guilty plea because of a change in representation at his

guilty-plea hearing. The two attorneys worked together, and each filed a certificate of

representation. Moreover, the record does not support Ramirez-Diaz’s claims.

       Ramirez-Diaz argues that one of his attorneys advised him to get married in order

to avoid deportation. At the evidentiary hearing on his motion to withdraw his guilty plea,

Ramirez-Diaz testified that he met with his attorney on April 30, 2015, after hearing that

detectives wanted to talk to him. Ramirez-Diaz testified that at this meeting, his attorney

told him that if he got married to a U.S. citizen he would go to jail for no more than two

months.    Another witness at the evidentiary hearing similarly testified that she

accompanied Ramirez-Diaz to this April 30 meeting and heard the attorney advise

Ramirez-Diaz to get married to avoid deportation. But on cross-examination, Ramirez-

Diaz admitted that on April 30, he did not know why the detectives wanted to talk to him.


                                             6
And his witness admitted that the meeting was to discuss immigration, and criminal issues

were not discussed. Thus, as the district court found, the discussion about marriage was

irrelevant to the validity of Ramirez-Diaz’s guilty plea because it took place during a

meeting that did not concern the criminal matter or guilty plea.

       Further, Ramirez-Diaz was fully aware that his guilty plea would result in his

deportation. At his evidentiary hearing, Ramirez-Diaz’s attorney testified that she visited

Ramirez-Diaz frequently to prepare for trial and discussed with him the immigration

consequences of pleading guilty. She testified that she advised Ramirez-Diaz that “there

was absolutely no chance he could stay in the United States if he were found guilty of this

charge or pled guilty to this charge.” When Ramirez-Diaz pleaded guilty, he agreed that

he had sufficient time to talk about the immigration consequences with his attorneys and

indicated that he understood that he would be deported and would never be allowed to

return to the United States.

       Ramirez-Diaz also claims that his attorneys failed to fully communicate the plea

offer to him. But Ramirez-Diaz’s attorney testified that she communicated the offer to

Ramirez-Diaz and that he wanted to think about it.

       Ramirez-Diaz claims that his attorneys failed to advise him that he was subject to a

ten-year conditional-release term.    Ramirez-Diaz’s petition to enter his guilty plea

incorrectly stated that he faced a two-year conditional-release term. But Ramirez-Diaz

does not claim that this incorrect statement had anything to do with his decision to plead

guilty. And every document thereafter correctly stated that the conditional-release term is

ten years.


                                             7
       Finally, Ramirez-Diaz claims that his sentencing attorney was unprepared. But

sentencing had no bearing on Ramirez-Diaz’s guilty plea.1 The sentencing attorney

indicated that she was prepared to proceed with sentencing and to argue mitigating factors.

Following arguments, the district court found that no mitigating factors supported a

downward durational departure and imposed the presumptive prison sentence, as

recommended by the officer who prepared the PSI. Thus, although the district court denied

Ramirez-Diaz a downward durational departure, his attorney argued for a departure at

sentencing.

Prejudice

       Ramirez-Diaz argues that the district court should have allowed him to withdraw

his guilty plea because he moved to withdraw his guilty plea shortly after entering it.

Ramirez-Diaz pleaded guilty on August 3, 2015, and verbally requested to withdraw his

plea on September 14. Ramirez-Diaz may have acted quickly, but this “fact is relevant to

show an absence of prejudicial reliance on his plea by the prosecution.” State v. Abdisalan,

661 N.W.2d 691, 694 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003). The

district court found that the state would be prejudiced by plea withdrawal because the case

involved a child-abuse victim who would suffer if the case started over. A district court

may consider the interests of the victim when considering the prejudice to the state. Kim,

434 N.W.2d at 267.


1
 Ramirez-Diaz argues that if we decline to reverse on the plea-withdrawal issue, we should
remand for a sentencing hearing wherein he be permitted to argue for a downward
departure. Not only did Ramirez-Diaz fail to raise this issue in district court, but he fails to
present argument or legal authority supporting a remand. Moreover, the district court
permitted his sentencing attorney to argue for a downward departure.
                                             8
      Ramirez-Diaz has failed to establish reasons making it fair and just for him to

withdraw his guilty plea. The district court did not abuse its discretion by denying

Ramirez-Diaz’s motion to withdraw his guilty plea.

      Affirmed.




                                           9
