                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-1827

                                 State of Minnesota,
                                     Respondent,

                                         vs.

                                 Robert Lee Crisler,
                                    Appellant.

                                Filed August 11, 2014
                                      Affirmed
                                 Rodenberg, Judge

                           Hennepin County District Court
                             File No. 27-CR-12-15242

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

Sandra H. Johnson, Bloomington City Attorney, Torrie J. Schneider, Assistant City
Attorney, Bloomington, Minnesota (for respondent)

Cathyrn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, John Donovan, Certified Student Attorney, St. Paul, Minnesota (for
appellant)

      Considered and decided by Cleary, Presiding Judge; Rodenberg, Judge; and

Stoneburner, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant Robert Lee Crisler appeals from his conviction of gross misdemeanor

driving while impaired (DWI) after the district court denied his motion to withdraw his

guilty plea before sentencing. We affirm.

                                         FACTS

       At approximately 1:56 a.m. on March 13, 2012, Bloomington Police Officer Tou

Vue was on patrol when he observed a stopped vehicle facing south in the designated

northbound lanes of Normandale Boulevard. Officer Vue used his public address system

to tell the driver to move the vehicle. But the vehicle did not move. Officer Vue then got

out of his squad car, walked up to the vehicle and noticed that the driver smelled strongly

of alcohol, was drooling, and that his eyes were watery and bloodshot. The driver

appeared confused, slurred his speech, and was slow to respond. After Officer Vue

identified appellant as the driver, he asked appellant to step out of the vehicle. Appellant

stumbled and was not able to maintain his balance without assistance. Officer Vue

obtained a preliminary breath test from appellant indicating an alcohol concentration of

.19. Appellant stated that he was “drunk” and that he had “drunk too much and too

often.” Appellant held his chest and appeared to have trouble breathing. Officer Vue

called for paramedics, who arrived and transported appellant to a local hospital.

       According to the complaint, Officer Vue read appellant the Minnesota Implied

Consent Advisory at the hospital, and appellant consented to having his blood drawn. At

3:30 a.m., hospital staff drew a sample of blood that was later tested and showed an


                                             2
alcohol concentration of .30. Appellant had two qualified prior DWI incidents from

December 2, 2002 and September 18, 2006 and he was therefore charged with two counts

of second-degree DWI, in violation of Minn. Stat. § 169A.20, subd. 1(1), (5) (2010), one

count of second-degree DWI with an alcohol concentration of .20 or more, in violation of

Minn. Stat. § 169A.03, subd. 3(2) (2010), and one count of driving after revocation, in

violation of Minn. Stat. § 171.24, subd. 2 (2010).

       On May 9, 2013, appellant, represented by counsel, pleaded guilty to one count of

second-degree DWI with an alcohol concentration greater than .08 within two hours of

driving. The state agreed to dismiss the other charges. Appellant’s counsel summarized

the agreement at the plea hearing as follows: “[Appellant] would be pleading to the gross

misdemeanor DWI. There would be no sentence. He would be referred to misdemeanor

mental health court. Upon acceptance, they would handle it, and if, for whatever reason,

he would be rejected, he would come back to this court for sentencing . . . .” Paragraph

17 of appellant’s plea petition reads: “I understand that whether or not I have had a

pretrial hearing, I will not be able to object tomorrow or any other time to the evidence

the prosecutor has.” And at paragraph 28, the plea petition states that appellant is

“knowingly, voluntarily, and intelligently” waiving his “[constitutional] right to a pretrial

hearing to contest the admissibility at trial of evidence obtained from search or seizure,

confessions and/or admissions.”

       Appellant was referred to misdemeanor mental health court (MMHC) but was not

accepted. Consistent with the plea agreement, appellant returned to district court for

sentencing.


                                             3
       Appellant moved to withdraw his guilty plea before sentence was imposed. The

motion was not based on MMHC having not accepted appellant. Instead, appellant’s

attorney stated that “[appellant] believes he would like to file a McNeely. He feels that

the evidence was tainted, and thinks the case should be dismissed.”

       The district court denied the motion, stating:

              And the motion to withdraw based on McNeely is denied.
              I’ve been issuing orders in the McNeely case, and I know this
              is some—a test rather than refusal, but I’ve issued orders in
              various blood, breath, and urine tests denying the McNeely
              motion. McNeely dealt with a driver who, when asked to test,
              refused to test. And then the police, after the person said, ‘no,
              I’m not going to test,’ then the police had the hospital
              technicians stick a needle in the person’s arm and draw blood
              after they said no.

              Unless that’s the facts here, my understanding of the facts
              here are the implied-consent advisory was read, the[re] are
              arguments about whether it was coercive or not, but the
              implied-consent advisory was read and [appellant] agreed to
              submit to chemical testing, which is the law in Minnesota.

              So it’s my conclusion that McNeely does not apply, and the
              motion to withdraw based on McNeely is denied.

The district court then sentenced appellant, and this appeal followed.

                                     DECISION

       Appellant argues that the district court abused its discretion by not allowing him to

withdraw his guilty plea before sentencing. A defendant may be permitted to withdraw a

plea before sentencing when “it is fair and just to do so.” Kim v. State, 434 N.W.2d 263,

266 (Minn. 1989); see Minn. R. Crim. P. 15.05, subd. 2. “The [fair-and-just] standard

requires district courts to give due consideration to two factors: (1) the reasons a



                                             4
defendant advances to support withdrawal and (2) 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) (quotation marks omitted). A defendant bears the burden of advancing reasons to

support withdrawal. Id. at 94. But “defendants may not withdraw their guilty pleas for

simply any reason before a sentence is imposed.” State v. Farnsworth, 738 N.W.2d 364,

372 (Minn. 2007). “[T]he ‘ultimate decision’ of whether to allow withdrawal 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.’” State v. Kaiser, 469 N.W.2d 316, 320 (Minn.

1991) (quoting Kim, 434 N.W.2d at 266).

       Appellant’s motion to withdraw his plea before the district court was based only

on his attorney’s statement that appellant wished to “file a McNeely. He feels that the

evidence was tainted, and thinks the case should be dismissed.” And on appeal it is clear

that appellant did not seek to withdraw his plea because he was not admitted to MMHC.1

Appellant seems to have intended to withdraw his earlier plea with the intention to then

separately move to suppress the evidence obtained from the warrantless blood draw.

       The United States Supreme Court decided Missouri v. McNeely on April 17, 2013,

holding that the dissipation of alcohol in the blood does not create a single-factor

1
  Appellant’s plea petition reads: “I understand that if the court does not approve the
agreement [to be referred to MMHC], I have the right to withdraw my plea of guilty and
have a trial.” But this is not how the plea agreement was characterized on the record at
the plea hearing, as appellant’s attorney stated that if “[appellant] would be rejected [from
MMHC] he would come back to [the district] court for sentencing.” In any event,
appellant did not contend at the district court, nor does he argue now on appeal, that he
has an absolute right to withdraw his plea based on his not being admitted to MMHC.

                                               5
exigency allowing law enforcement to bypass the warrant requirement before obtaining a

blood, breath, or urine sample. 133 S. Ct. 1552, 1556 (2013). Appellant pleaded guilty

on May 9, 2013, three weeks after the McNeely decision was released.             Although

appellant was not specifically questioned on the record about whether he understood that

he was waiving his right to challenge the admissibility of the state’s evidence by pleading

guilty, appellant’s plea petition contains a waiver of the right to make a suppression

motion. See State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980) (noting that a

defendant generally waives nonjurisdictional defects by entering a guilty plea, including

the right to “raise independent claims relating to the deprivation of constitutional rights

that occurred prior to the entry of the guilty plea.” (quotation omitted)). Appellant,

represented by counsel, had not moved to suppress evidence before pleading guilty, and

the record is devoid of any indication that the plea agreement contemplated that appellant

was reserving the right to challenge the state’s evidence if MMHC did not accept him.

       Appellant cites Farnsworth in support of the argument that,

              when a defendant moves before sentencing to withdraw a
              guilty plea based upon the defendant’s desire to move to
              suppress evidence, and the district court bases its ruling on
              the plea-withdrawal motion upon its ruling on the suppression
              issue, the issue becomes whether the district court erred in
              granting or denying the suppression motion.

A close reading of Farnsworth does not support this proposed standard of review.

       In Farnsworth, the defendant pleaded guilty without any challenge to the

admissibility of his statements to law enforcement. 738 N.W.2d at 368-69. His attorney

had advised him that “there was no Miranda violation.” Id. at 368. The defendant later



                                            6
moved to withdraw his plea before sentencing, arguing that “he was not informed that

grounds may exist to suppress his [prior] statement to [law enforcement]” and that “he

was not informed that his statement . . . could be used against him at sentencing.” Id. at

369. The district court exercised its discretion and held an evidentiary hearing on the

plea-withdrawal issue. Id. The district court “weighed potential prejudice to the state

against [the defendant’s] arguments for withdrawal” and “concluded that if the

confession was indeed suppressible, it would be fair and just to allow [the defendant] to

withdraw his guilty plea.” Id.

       The district court then held a separate hearing regarding the admissibility of the

defendant’s confession. Id. It analyzed the suppression issue and concluded that parts of

the defendant’s prior admissions to law enforcement were inadmissible. Id. at 369-70.

       We reversed and remanded for sentencing, concluding that the district court had

abused its discretion in permitting the plea withdrawal. Id. at 371. The Minnesota

Supreme Court affirmed, but based on a different analysis. It concluded that the district

court erred in its application of the law to the defendant’s suppression motion. Id. at 372

(“[W]e must decide whether the court correctly concluded that [the defendant’s]

confession was inadmissible. If that conclusion was incorrect, then the [district] court

abused its discretion in permitting the withdrawal of [the defendant’s] plea.” (emphasis

added)). But in so doing, the supreme court held that it is proper, in context, for a district

court to hold an evidentiary hearing on the plea-withdrawal issue. Id. (citing Kaiser, 469

N.W.2d at 319).




                                              7
       Farnsworth in turn relied on Kaiser, 469 N.W.2d at 319, in concluding that it was

proper for the district court to hold an evidentiary hearing on the plea-withdrawal motion.

Id. In Kaiser, the defendant moved to withdraw his plea before sentencing, arguing that

his attorney had coerced him into pleading guilty, and the district court denied the motion

without a hearing. 469 N.W.2d at 318. The supreme court held that it was error for the

district court not to hear the defendant’s testimony on the issue: “Deciding whether or not

defendant was coerced by his attorney into pleading guilty required the [district] court to

make findings of fact and the [district] court could not fairly do that without allowing

defendant to testify.” Id. at 319. The supreme court also noted that the issue in that case

was whether the plea agreement was voluntary; if a plea agreement is involuntary, a

defendant has the right to withdraw it at any time. Id.; see Minn. R. Crim. P. 15.05, subd.

1 (“At any time the court must allow a defendant to withdraw a guilty plea upon a timely

motion and proof to the satisfaction of the court that withdrawal is necessary to correct a

manifest injustice.”); see also Raleigh, 778 N.W.2d at 94 (noting that it is a manifest

injustice if a plea is not knowingly, voluntarily, and intelligently made).      We read

Farnsworth and Kaiser to indicate that, in some circumstances, a district court abuses its

discretion when it does not hold an evidentiary hearing on a defendant’s presentence

plea-withdrawal motion. But the circumstances here are unlike those in Farnsworth and

Kaiser.

       Appellant argues neither that he was coerced into pleading guilty, nor that he

received ineffective assistance of counsel. See Farnsworth, 738 N.W.2d at 369 (noting

that the district court found that there was some question as to whether the defendant


                                            8
understood he was waiving his right to challenge the admissibility of evidence by

pleading guilty); Kaiser, 469 N.W.2d at 319 (noting that the issue was whether the

defendant had been coerced into pleading guilty by his own attorney).                Rather,

appellant’s sole basis for requesting to withdraw his guilty plea is to enable him to “file a

McNeely.” He had made no suppression motion before his counseled guilty plea and

expressly waived in writing his right to contest the admissibility of the state’s evidence.

See Lothenbach, 296 N.W.2d at 857. And there is nothing in the record to indicate that,

at the time of his plea, appellant did not understand that he was waiving his right to later

challenge the admissibility of evidence.

       The scope of a district court’s discretion includes whether to hold an evidentiary

hearing on a plea-withdrawal motion. Farnsworth, 738 N.W.2d at 371. We see no error

in the district court’s denial of appellant’s motion to withdraw his guilty plea in these

circumstances. Having waived his right to seek suppression of the state’s evidence as

part of a plea agreement that called for referral to MMHC, and having not been admitted

into that program, the terms of the plea agreement called for appellant to return to the

district court for sentencing. The district court acted within its discretion in holding

appellant to his plea agreement, which included a waiver of appellant’s right to challenge

the admissibility of the state’s evidence. See State v. Brunes, 373 N.W.2d 381, 386

(Minn. App. 1985) (holding that defendant waived his constitutional objection to

admissibility of evidence by failing to raise the issue at the omnibus hearing), review

denied (Minn. Oct. 11, 1985).




                                             9
       We note that the district court did not expressly consider whether the state would

be prejudiced by plea withdrawal in this case. See State v. Cubas, 838 N.W.2d 220, 224

(Minn. App. 2013) (“Although a decision to allow plea withdrawal is discretionary under

[Minn. R. Crim. P. 15.05, subd. 2], a district court must apply the standard mandated by

the rule when exercising its discretion.”), review denied (Minn. Dec. 31, 2013). The

district court was not required to consider potential prejudice to the state where appellant

did not establish a fair-and-just reason for plea withdrawal. We conclude that the district

court did not abuse its discretion by denying appellant’s plea-withdrawal motion.

       Affirmed.




                                            10
