                            This opinion will be unpublished and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
                                       A15-1346

                                     State of Minnesota,
                                        Respondent,

                                              vs.

                                Christopher Timothy Poorker,
                                         Appellant.

                                    Filed March 28, 2016
                                          Affirmed
                                        Larkin, Judge

                              Mille Lacs County District Court
                                   File No. 48-CR-14-855


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

Joe Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

Ethan J. Allen, Law Office of Ethan J. Allen, P.A., Milaca, Minnesota (for appellant)


         Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Hooten,

Judge.

                           UNPUBLISHED OPINION

LARKIN, Judge

         Appellant challenges the validity of his guilty plea to fourth-degree criminal sexual

conduct, arguing that he should be allowed to withdraw his plea because the district court
sentenced him in violation of his plea agreement and that the district court abused its

discretion by denying his request for an evidentiary hearing regarding plea withdrawal.

We affirm.

                                          FACTS

       In May 2014, respondent State of Minnesota charged appellant Christopher Timothy

Poorker with third- and fourth-degree criminal sexual conduct. The district court appointed

a public defender to represent Poorker. At a hearing in January 2015, Poorker and the

prosecutor informed the district court that they had reached an agreement under which

Poorker would plead guilty to fourth-degree criminal sexual conduct. Poorker’s attorney

stated the details of the agreement on the record as follows:

              There would be an agreement that Mr. Poorker would serve 90
              days on electronic home monitoring [(EHM)], that there would
              be a joint recommendation for a stay of adjudication on the
              charge, that—I don’t think there’s an agreement or a position
              with regard to costs. I think the State is free to request costs.
              There would be a 10-year probationary period, and I’m sure
              I’m missing something but—if I could have just a moment,
              your Honor? I have to recover the petition that’s in the back
              room.

       After Poorker’s attorney returned to the courtroom, he offered Poorker’s plea

petition, which the district court received. A hand-written notation in the section of the

petition regarding the plea agreement stated, “90 EHM or jail/violation result 30 days.”

Poorker’s attorney also submitted a document entitled “SETTLEMENT OFFER/PLEA

AGREEMENT (Appendix ‘A’ to Plea Petition),” and the district court accepted it “as a

supplement to the plea petition.” The plea-agreement document indicates that the plea

agreement called for Poorker to serve either 30 days in jail or 90 days on EHM.


                                             2
       In May 2015, a private attorney replaced Poorker’s public defender and requested

that the district court continue Poorker’s sentencing hearing because the attorney had just

been retained and wanted time to review the case. The district court denied the request,

noting that the presentence investigation and evaluations were complete. On May 19, the

day before Poorker’s sentencing hearing, Poorker filed a “Motion to Withdraw Defendant’s

Guilty Plea.” In the “Notice of Motion” section, Poorker stated: “Please take notice that

as soon as transcripts can be obtained and an evidentiary hearing may be scheduled . . . ,

counsel for [Poorker] will bring the following motion to withdraw [his] guilty plea.” In

the “Motion” section, Poorker argued that his plea was not voluntary or intelligent. Poorker

requested “that the Court schedule an evidentiary hearing, so that [he] may present

evidence to support his position that he be allowed to withdraw his plea.”

       The district court was not aware of Poorker’s motion until after the sentencing

hearing began. Once Poorker’s attorney referred to the motion, the district court and the

attorneys had an off-record discussion. After returning to the record, the district court

stated that Poorker’s motion was “basically . . . a request for a continuance for an

evidentiary hearing on the issue of whether or not the Court should allow Mr. Poorker to

withdraw his guilty plea [under] both standards that are allowed pursuant to the statute.”

Poorker’s attorney explained:

              I was just retained on this file so I haven’t had a lot of time. . . .
              If the Court were to consider continuing this case, what I would
              do is go and get those transcripts and look and see exactly what
              did or didn’t happen. I’m sitting in a position where I’m
              making arguments based on what I believe to be potentially the
              case and whether or not this was a free and voluntary
              understanding on my client’s part.


                                                3
       The district court denied the request to continue the sentencing hearing. As to

sentencing, Poorker’s attorney stated:

              I don’t know what the specific terms of the plea agreement
              were. . . . I do believe there was an option to do electronic home
              monitoring instead of a jail sanction. I would ask the Court to
              give my client some time to get that set up. What . . . I’m going
              to ask the Court to do is stay any sentence that the Court
              imposes to allow us the option to look into whether or not this
              is something that we want to appeal. So that being said, I
              would ask the Court to give my client some time assuming that
              EHM is an option, which I thought it was. To have that set up,
              I would ask for 30 days.

       The district court asked the prosecutor about EHM, and the prosecutor stated that

“the plea agreement was 30 days jail or 90 days electronic home monitor[ing] to be

determined at sentencing.” The prosecutor also said that the decision between jail and

EHM was left open and that choosing either one would not breach the plea agreement. The

district court ordered Poorker to serve 30 days in jail and stayed adjudication for ten years.

       After the sentencing hearing, Poorker’s attorney wrote a letter to the district court

asking it “to allow Mr. Poorker the option to complete jail or [EHM].” Poorker’s attorney

stated: “My understanding of the plea agreement was that Mr. Poorker had the option to

complete 30 days of jail or complete 90 days of Electronic Home Monitoring.” The district

court denied the request, explaining: “This was addressed at the sentencing hearing. Either

30 days in jail or 90 EHM and if court decided on one versus the other it would not be a

violation of the plea agreement.” This appeal followed.

                                      DECISION

                                              I.


                                              4
       Poorker contends that he should be allowed to withdraw his guilty plea because the

district court sentenced him in violation of the plea agreement. Poorker argues that the

district court violated the plea agreement by sentencing him to serve 30 days in jail instead

of 90 days on EHM. If a plea agreement is breached, the defendant’s guilty plea is invalid

and “the court may allow withdrawal of the plea, order specific performance, or alter the

sentence if appropriate.” State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000). To

determine whether a plea agreement was violated, “courts look to what the parties to the

plea bargain reasonably understood to be the terms of the agreement.” Id. (quotation

omitted). “What the parties agreed to involves an issue of fact to be resolved by the district

court.” Id. “Issues involving the interpretation and enforcement of plea agreements,

however, are issues of law that [appellate courts] review de novo.” Id.

       As to the disputed plea-agreement term, the district court found that the agreement

was for “[e]ither 30 days in jail or 90 EHM and if court decided on one versus the other it

would not be a violation of the plea agreement.” The record supports that finding.

Although Poorker’s public defender stated at the plea hearing that Poorker “would serve

90 days on electronic home monitoring” under the plea agreement, the attorney also said,

“I’m sure I’m missing something,” and asked to retrieve the plea petition. Then, he

submitted the plea petition, which includes a handwritten notation indicating that the

agreement was “90 EHM or jail/violation result 30 days.” The attorney also submitted a

plea-agreement document that contains handwritten notes indicating that the agreement

was for Poorker to serve 30 days in jail or 90 days on EHM. These documents, which were

made part of the record at the plea hearing, supplemented Poorker’s attorney’s recitation


                                              5
of the terms of the plea agreement and support the district court’s finding that the parties

agreed that Poorker would either serve 30 days in jail or 90 days on EHM.1 The district

court therefore did not violate the plea agreement by sentencing Poorker to serve 30 days

in jail, and Poorker is not entitled to plea withdrawal on that ground.

                                              II.

       Poorker also contends that the district court abused its discretion by denying his

request for an evidentiary hearing regarding his motion to withdraw his guilty plea.

Poorker’s motion states that he would bring a plea-withdrawal motion “as soon as

transcripts can be obtained and an evidentiary hearing may be scheduled.” The district

court described the motion as “a request for a continuance.” Statements by Poorker’s

attorney are consistent with that description. He told the district court: “[M]y plan would

be—if the Court were to grant my continuance[—] . . . to request transcripts going back to

the very first hearing and see what, if any, issues there are.” The attorney further stated: “I

simply am in a situation where I can make some arguments based on what I believe my

concerns are, but without getting a continuance so I can look at it further, it’s very, very

hard for me to argue.” The attorney explained that he was requesting a continuance “so

we would have an opportunity to explore more [of] our options at this point because I just

don’t feel like I really can present argument to the Court today based on the information I




1
  We encourage parties in a criminal case to carefully make a record regarding the precise
terms of any plea agreement. Such practice will help avoid factual disputes regarding what
the parties agreed to.

                                              6
have.” Poorker’s attorney also suggested, “[T]he State may be a hundred percent right[.] .

. . I just have no idea.”

       The record demonstrates Poorker’s request for plea withdrawal was equivocal at

best. What he actually sought was a continuance so he could investigate whether there was

a basis to move for plea withdrawal. For that reason, the cases on which he relies, State v.

Farnsworth, 738 N.W.2d 364 (Minn. 2007) and State v. Kaiser, 469 N.W.2d 316 (Minn.

1991), are distinguishable. In Farnsworth, the supreme court concluded that “it was proper

for the district court to hold a hearing to determine whether a fair and just reason existed”

to support the defendant’s presentencing motion to withdraw his plea. 738 N.W.2d at 366,

372. Similarly, in Kaiser, the supreme court concluded that the district court erred by not

granting the defendant’s request to testify at an evidentiary hearing in support of his

presentencing motion to withdraw his plea. 469 N.W.2d at 319. In those cases, a motion

to withdraw a plea was actually pending before the district court. See Farnsworth, 738

N.W.2d at 366; Kaiser, 469 N.W.2d at 319. In this case, Poorker merely notified the

district court that he would likely move for plea withdrawal in the future.

       We therefore construe the district court’s ruling as a denial of a request to continue

Poorker’s sentencing hearing, instead of a denial of a request for an evidentiary hearing on

Poorker’s future plea-withdrawal motion. A decision whether to grant a continuance “is

vested in the sound discretion of the trial court.” State v. Bates, 507 N.W.2d 847, 851

(Minn. App. 1993), review denied (Minn. Dec. 27, 1993). The decision “should be based

on all facts and circumstances surrounding the request [for a continuance].” State v. Vance,

254 N.W.2d 353, 358 (Minn. 1977). On appeal, a defendant who sought a continuance


                                             7
“must show that he was prejudiced to justify reversal.” In re Welfare of T.D.F., 258

N.W.2d 774, 775 (Minn. 1977).

       The district court denied Poorker’s continuance request for several reasons. First,

the district court noted that the motion was filed one day before sentencing. Second, the

district court stated that granting the request would prejudice the state, because the case

had been active for a long time and a competency evaluation, a presentence investigation,

and a psychosexual evaluation had already been completed. Third, the district court

explained: “There are other avenues in which to argue ineffective assistance of counsel.

I’m not going to be the appellate court within a district court on those particular issues.”

       The district court’s third reason recognizes that Poorker could have challenged the

validity of his plea after sentencing in a postconviction proceeding. See Minn. Stat.

§ 590.01, subd. 1 (2014) (permitting postconviction petitions for claims that “the

conviction obtained or the sentence . . . made violated the person’s rights under the

Constitution or laws of the United States or of the state”); Lussier v. State, 821 N.W.2d

581, 583 (Minn. 2012) (stating that “[a] motion to withdraw a guilty plea made after

sentencing must be raised in a petition for postconviction relief”). We recognize that

different standards apply to pre- and post-sentence requests for plea withdrawal. See Minn.

R. Crim. P. 15.05 (setting forth the manifest-injustice and fair-and-just standards for plea

withdrawal). But given Poorker’s admitted uncertainty regarding the potential basis for

plea withdrawal, we cannot say that the district court abused its discretion by refusing to

continue the sentencing hearing while Poorker’s attorney explored potential grounds for

plea withdrawal.


                                              8
Affirmed.




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