                        This opinion will be unpublished and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
                                   A14-1349

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                             Giavonte Dominique Foulks,
                                     Appellant.

                                 Filed July 20, 2015
                                      Affirmed
                                    Reilly, Judge

                             Anoka County District Court
                              File No. 02-CR-13-5402

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

Anthony C. Palumbo, Anoka County Attorney, Jon C. Audette, Anoka, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Susan J. Andrews, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and

Reilly, Judge.

                       UNPUBLISHED OPINION

REILLY, Judge

       Appellant Giavonte Foulks challenges his felony conviction of theft of a motor

vehicle, arguing that the district court erred in denying his presentence motion to
withdraw his guilty plea. Because the district court carefully considered appellant’s

motion and did not abuse its discretion, we affirm.

                                          FACTS

       On August 3, 2013, appellant was “hanging out smoking marijuana” with his

friends, D.U. and J.F. Appellant asked D.U. if he could borrow his car to sell drugs and

D.U. refused. Appellant then took D.U.’s car without permission and drove away. D.U.

and J.F. tried to call appellant on his cell phone but it had been shut off. Two days later,

D.U. reported the theft to the police. D.U. told the police that he withheld permission for

appellant to drive his car because appellant did not have a valid driver’s license and the

car was not insured. D.U. later learned that appellant crashed the car. The state charged

appellant with one felony count of theft of a motor vehicle in violation of Minn. Stat.

§§ 609.52, subd. 2(a)(17), 609.52, subd. 3(3)(d)(v), 609.101 (2012).

       Appellant entered a plea of guilty to the crime as charged and the state agreed to a

Minnesota Sentencing Guidelines disposition, with a potential departure to probation if

appellant sought chemical dependency treatment. Appellant acknowledged in the plea

petition that he had been charged with the crime of motor vehicle use without consent

and understood that the maximum penalty the district court could impose for the crime

was five years. The district court judge then engaged in the following exchange with

appellant regarding the factual basis for the plea:

              Q: And you had a car?
              A: Yes.
              Q: Whose car was that?
              A: [D.U.]
              ...


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              Q: Okay. Did he give you permission to take his car?
              A: It’s like he gave me – I guess I had the car longer than I
              was supposed to.
              Q: Okay. And so you were supposed to have that car back to
              him; is that right?
              A: Yes.
              Q: But you held on to it?
              A: Yes.
              Q: Kept it without his permission?
              A: Yes.
              Q: And for those reasons you would agree that you were at
              that point in fact stealing it; true?
              A: Yes, sir.

The district court concluded that appellant understood his rights, waived those rights, and

admitted facts establishing that he was guilty of the offense. The district court advised

appellant that in order to “stay out of prison,” he was expected to be successful in

treatment, remain “completely law-abiding,” cooperate with a presentence investigation,

and appear for the sentencing hearing.

       The presentence investigation report later revealed that appellant did not contact

corrections or cooperate in the presentence investigation process. Appellant did not

provide proof that he had entered into a treatment program as required by the plea

agreement. Appellant also incurred a new charge in January 2014 for a vehicle-related

offense. Probation recommended a presumptive commitment to the commissioner of

corrections for a period of 23 months, with a sentence range of 20 to 27 months. When

appellant failed to appear for sentencing, the state indicated that it was no longer willing

to go along with a departure because appellant failed to cooperate with the court’s orders.

Appellant was later arrested on the resulting warrant and appeared for sentencing.




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       During the same time period, D.U. gave a statement to an investigator with the

public defender’s office in which he clarified that he gave appellant permission to drive

his car “for the day,” but appellant failed to return the car in a timely manner. Appellant

sought to withdraw his guilty plea in light of D.U.’s statement “recanting the allegations”

that appellant took his vehicle without permission. The district court denied the motion

and imposed a 23-month prison sentence. This appeal followed.

                                      DECISION

       Appellant claims that the district court abused its discretion by denying appellant’s

presentence motion to withdraw his guilty plea. A defendant does not have an absolute

right to withdraw a guilty plea. State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). The

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

of the district 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).

       A defendant is permitted to withdraw a guilty plea before sentencing if “it is fair

and just to do so.” Minn. R. Crim. P. 15.05, subd. 2. A district court considers two

factors under this standard: the reasons the defendant advances to support withdrawal of

the guilty plea, and whether granting the motion prejudices the state. Id. 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.

       Under the first factor, the defendant bears the burden of advancing reasons to

support a plea withdrawal. Raleigh, 778 N.W.2d at 97. Appellant argued that D.U.


                                              4
recanted the theft allegation, providing appellant with a defense to the charge. In its

written findings, the district court considered D.U.’s statement that he gave appellant

permission to use the car if appellant was “gonna be back today.” The district court

noted D.U.’s statement to the investigator that:

              A: [I]t had been about a day, I went home, went to bed and
              then I woke up and then called him, his phone was off – his
              phone was off – I had actually tried calling him, his phone
              was off, he wasn’t answering anybody’s phone calls and then
              I guess he was on his way back to brin[g]ing the car to me
              when he crashed it.
              ....
              Q: and he just – he asked to take the car?
              A: Yep, and I said ‘Yeah if you’re gonna be back today.’

Based on its review of the record, the district court concluded that D.U.’s statement was

“consistent with the factual basis” set forth by appellant. And appellant acknowledged

during the plea hearing that he “had the car longer than [he] was supposed to” and “held

on to it” without D.U.’s permission. The district court asked appellant if he would agree

“that [he was] at that point in fact stealing it,” and appellant answered, “Yes, sir.” The

record establishes a factual basis for appellant’s guilty plea.

       Moreover, Minnesota courts are generally hesitant to allow a defendant to

withdraw a guilty plea based upon a victim’s recantation. See, e.g., State v. Tuttle, 504

N.W.2d 252, 256-57 (Minn. App. 1993) (determining that victim’s recantation of charge

did not entitle defendant to withdraw guilty plea under the fair-and-just standard on

grounds that plea was based on mistaken belief of strength of state’s case); State v.

Risken, 331 N.W.2d 489, 490 (Minn. 1983) (holding that district court did not err in

accepting guilty plea despite witness’s recanted testimony because there was a sufficient


                                              5
factual basis for defendant’s guilty plea).        The evidence in the record, along with

appellant’s own admission of guilt, provided a valid factual basis for the district court’s

decision.

       With respect to the second prong, appellant argues that the state did not claim it

would be prejudiced if the district court allowed appellant to withdraw his guilty plea.

“The [s]tate bears the burden of showing prejudice caused by withdrawal of a plea.”

Raleigh, 778 N.W.2d at 97. Here, the district court did not address any possible prejudice

to the state. But even where the state is not prejudiced, “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 found that appellant did not

satisfy his burden of showing that it was fair and just to allow him to withdraw his plea.

As such, the district court did not need to reach the issue of prejudice to the state.

       In his pro se supplemental brief, appellant included a notarized letter written by

D.U. supporting appellant’s plea-withdrawal request. The state objects to consideration

of the letter, arguing that this court cannot consider matters outside the record on appeal.

We agree. This court generally does not consider evidence outside the record on appeal

in reaching a decision. State v. Breaux, 620 N.W.2d 326, 334 (Minn. App. 2001). The

record on appeal includes the papers filed in the district court, any exhibits, and the

transcript of the proceedings. Id. (quotation omitted). D.U.’s letter was not filed in

district court or considered by the district court judge and we therefore do not consider it.

       Affirmed.


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