                        This opinion will be unpublished and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
                                   A15-0470

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                               Gonsalo Cosme-Garsia,
                                    Appellant.

                              Filed February 29, 2016
                                     Affirmed
                                  Connolly, Judge

                            Dakota County District Court
                            File No. 19HA-CR-13-3341


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

James C. Backstrom, Dakota County Attorney, Heather D. Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Melissa Sheridan, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Johnson, Presiding Judge; Connolly, Judge; and

Klaphake, Judge.




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                         UNPUBLISHED OPINION

CONNOLLY, Judge

       In this postconviction appeal, appellant challenges the district court’s denial of his

motion to withdraw his guilty plea, claiming the guilty plea was not intelligently made

because appellant was denied effective assistance of counsel. Because appellant was aware

of the consequences of his guilty plea, we conclude that the district court did not err in

refusing to allow appellant to withdraw his plea under the manifest-injustice standard.

                                          FACTS

       On October 10 and 11, 2013 appellant was arrested and charged with one count of

first-degree sale of a controlled substance and a second count of first-degree possession of

a controlled substance. The charges were based on the state’s allegation that appellant and

three other men possessed 3.93 pounds of methamphetamine with the intent to sell the

drugs to a person who was an undercover police officer. Due to a joinder dispute resulting

from the state attempting to try all four individuals together, and several difficulties with

appellant obtaining counsel, appellant and the state did not enter into a plea agreement for

more than a year. The agreement called for appellant to plead guilty to count one and for

the state to dismiss count two. The guidelines sentence for count one based on an offense

severity level of nine and appellant’s criminal-history score of three is 122 months in

prison, with a range of 104-146 months and a mandatory minimum sentence of 48 months.




                                             2
      At the plea hearing, the following discussion1 occurred regarding appellant’s

understanding of the agreement prior to appellant being sworn in:

      THE COURT:          Okay. Then – and I want to be clear on this. There’s been
      no promise made to you as to the type of sentence you’ll receive, correct?
      [APPELLANT]: How—what do you mean “promises[?]”
      THE COURT:          Well, promises either through your attorney or by anyone
      else as to what’s going to happen today.
      [APPELLANT]: Not right now.
      COUNSEL:            If I could, Mr. Cosme-Garsia, we are hopeful of receiving
      48 months of executed sentence. You understand that?
      [APPELLANT]: Okay. Okay. Okay. That’s guideline.
      COUNSEL:            But there’s no promise from the judge. We are going to
      argue for that. We’re going to ask him to execute.
      [APPELLANT]: Okay.
      THE COURT:          Now, the next step in terms of that line of questioning, the
      guidelines that are put in place for this case would put the range of sentence
      from 104 months to 146 months in most cases. That’s where your sentence
      will be around. You understand that?
      [APPELLANT]: Yes.
      THE COURT:          And the least amount I could sentence you to, under my
      envision of the law, is 48 months.
      [APPELLANT]: Okay.
      THE COURT:          But a more likely result is somewhere between 104 and
      146.
      INTERPRETER: And?
      THE COURT:          And 146 months. I want you – knowing that, do you want
      to go forward today?
      [APPELLANT]: Yes, that’s fine.
      ....
      THE COURT:          And the sentencing is going to be somewhere between 48
      months and 169 [sic] months.2
      [APPELLANT]: Okay.
      THE COURT:          You are fully aware of that?
      [APPELLANT]: Yes. Yes.

1
  Appellant does not speak English; a Spanish language interpreter translated for appellant
at the hearing.
2
  The district court judge mistakenly told appellant that under the sentencing guidelines
appellant could be imprisoned for up to 169 months. The sentencing guidelines dictate a
sentencing range between 104-146 and a mandatory minimum of 48 months in prison for
appellant, unless the court found that an upward durational departure was appropriate.

                                             3
Following this exchange, the court accepted appellant’s guilty plea and adjudicated him

guilty of count one and dismissed count two.

       After the court accepted the plea, the attorneys for each side made arguments

concerning sentencing. The state argued: (1) the pre-plea presentence investigation (PSI)

found no mitigating factors and recommended a middle of the box guideline sentence,

which, with a criminal-history score of three, is 122 months; (2) the sentencing guidelines

establish the range of 104 to 146 and the mandatory minimum is 48 months; and (3) in

order to depart downward to the 48-month mandatory minimum sentence, the court had to

find substantial and compelling reasons to depart from the guidelines and there were no

such reasons. The state requested a middle of the box guidelines sentence as recommended

by probation which would be 122 months in prison.

       Appellant argued that he should receive a downward durational departure to the

mandatory minimum of 48 months because he is a “desperate father” trying to provide for

his family in west Texas.      Appellant called the two previous convictions “youthful

indiscretions” but admitted that the two convictions bound the district court to the

mandatory minimum of 48 months. Minn. Stat. § 152.021, subd 3(b) (2014). Between

2007 and 2013, appellant argued that he had been a law abiding citizen (no speeding tickets,

parking tickets, drunk driving offenses, narcotics offenses, or other violations of the law).

According to appellant, he was “simply working to keep his family healthy and whole.”

Appellant argued that his only mistake is that he permitted the two men, who brought him

to Minnesota for legitimate purposes (roofing work), to use him to transport a “large



                                             4
amount of drugs.” Finally, appellant argued that, like one of his counterparts (who had no

previous offenses), he should receive a probationary sentence.

       The district court disagreed and sentenced appellant to 104 months in prison.

Immediately after the judge pronounced the sentence, appellant’s counsel attempted to

withdraw the guilty plea stating:

                     Your Honor, if I might, on behalf of my client – I know
              he is stunned. I was under the impression that the
              circumstances warranted a departure to 48 months. I believe,
              Your Honor, I have [misled] my client. I don’t think he
              believed it was a possibility he would be sentenced in the
              guideline range. We would ask for an opportunity – I know
              it’s unusual – to withdraw his plea at this time. We did not
              think that this Court had factors in front of it that would likely
              result in that sentence. And we simply would not have
              machinated to the extent that we did to keep it with a judge
              who had such an opportunity to read the file. I’m not claiming
              Your Honor has misled me, but I have [misled] my client. He
              simply did not think it was an option.

After a brief recess during which the judge “gave some thought to [appellant’s] request”

the judge found that a “very clear effort to advise [appellant] of the possibility of

sentencing” was made. In denying the plea, the judge specifically pointed out that he

indicated that the likelihood of sentencing occurring was within the 104 to 146 month

range, he asked if that would alter or change appellant’s mind as to pleading guilty, and

appellant indicated that it would not and that he understood the likelihood of sentence.

       This appeal follows.




                                              5
                                      DECISION

1.     Can appellant withdraw his guilty plea under the manifest-injustice
       standard?

       “A defendant has no absolute right to withdraw a guilty plea after entering it.” State

v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). There are two relevant standards for guilty-

plea withdrawal: (1) manifest-injustice and (2) fair-and-just. The standard for reviewing

denial of a guilty-plea-withdrawal motion under the manifest-injustice standard, which is

applied to postsentencing motions, requires withdrawal when the defendant shows that the

guilty plea was invalid, i.e., not accurate, voluntary, and intelligent, is a “question of law

that we review de novo.” Id. at 94; see Minn. R. Crim. P. 15.05, subd. 1. Because appellant

moved to withdraw his guilty plea after he had been sentenced, the manifest-injustice

standard applies.

       Appellant argues that his guilty plea was not made intelligently. “The intelligence

requirement ensures that a defendant understands the charges against him, the rights he is

waiving, and the consequences of his plea. ‘Consequences’ refers to a plea’s direct

consequences, namely the maximum sentence and fine.” Id. at 96. The court clearly

explained the sentence it would impose could be anywhere between 48 and 146 months,

and most likely between 104 and 146 months. The district court judge was very clear about

the likely sentence. At previous hearings dating back to as early as December 18, 2013,

the district court judge indicated the likely sentence for appellant was a minimum of 104

months. Twice, appellant was informed that, if he were to go to trial, the state would be

making a motion to seek aggravating factors resulting in a possible sentence of 244 months.



                                              6
Appellant was told that the sentencing range is 104-146 months in prison at two separate

hearings and at least four different times.

       Furthermore, the language appellant’s attorney used at the hearings does not

indicate that he directly told appellant there was not any possibility that the court would

sentence appellant to more than 48 months. On the record, appellant’s attorney stated: “we

are hopeful of receiving 48 months of executed sentence . . . but there’s no promise from

the judge” and “I was under the impression that the circumstances warranted a departure

to 48 months” and “I don’t think he believed it was a possibility he would be sentenced in

the guideline range.” None of these comments indicate that the attorney told appellant that

“there is absolutely no chance that you will receive 104 months” or the like.

       Because appellant cannot point to anything in the record to refute that he was at

least aware of the maximum sentence he could receive, he cannot claim that his plea was

made unintelligently. We therefore conclude that because appellant’s plea was made

intelligently, the district court did not err in refusing to allow appellant to withdraw his plea

under the manifest-injustice standard.

2.     Did appellant have ineffective assistance of counsel?

       “A defendant’s guilty plea may be constitutionally invalid if the defendant received

ineffective assistance of counsel.” Sames v. State, 805 N.W.2d 565, 567 (Minn. App.

2011). Although appellant agreed he understood the sentencing range, and the range to

which the court would likely sentence him, appellant still argues that because his attorney

failed to provide him with effective assistance of counsel required by the federal and state

constitutions his plea was not made intelligently. See U.S. Const. amend. VI; Minn. Const.


                                               7
art. I § 6; Strickland v. Washington, 466 U.S. 668, 686 (1984). Appellant argues that his

attorney misled him as to the sentence he would receive.

       To prevail on a claim of ineffective assistance of counsel, appellant must

demonstrate (1) that the counsel’s representation fell below an objective standard of

reasonableness and (2) that “counsel’s errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687 (citations

omitted). Appellant “has the burden of proof and there is a strong presumption that

counsel’s performance fell within a wide range of reasonable assistance.” Gail v. State,

732 N.W.2d 243, 248 (Minn. 2007). A court may address the two prongs of the Strickland

test in any order and “may dispose of the claim on one prong without analyzing the other.”

Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006).

       Generally, an ineffective-assistance-of-counsel claim is raised in a petition for

postconviction relief rather than on direct appeal because a postconviction hearing provides

the court with “additional facts to explain the attorney’s decisions.” Black v. State, 560

N.W.2d 83, 85 n.1 (Minn. 1997). In this case, the court lacks sufficient information to

determine if appellant received effective assistance of counsel. We conclude that this issue

should be preserved for review at a future postconviction hearing, should appellant wish to

pursue that course of action.

       Appellant’s attorney stated:

                        “I have [misled] my client. I don’t think he believed it
              was a possibility he would be sentenced in the guideline range
              . . . . I’m not claiming your Honor has misled me, but I have
              [misled] my client. He simply did not think it was an option.
                        ....


                                              8
                     He understood you would have to acknowledge [the
              guidelines] either way, but we did think that there was a
              significant possibility that [the] court would consider it.

Without further testimony from the attorney and appellant regarding what was actually said

by the attorney to his client off the record, this court cannot determine if effective assistance

of counsel was given. If appellant (as he alleges in his appeal) was told by his counsel that

the prosecutor and court had agreed to a 48-month sentence and he should “simply answer

‘Yes’ to every question [he] was asked” then there may be support for the ineffective-

assistance-of-counsel claim. What the attorney actually told appellant will likely dictate

whether appellant’s counsel “fell below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. Therefore, in affirming the district court’s finding that

appellant made his plea intelligently, we nevertheless permit appellant to preserve the issue

of ineffective assistance of counsel should appellant choose to pursue such a claim in a

postconviction proceeding.

       Affirmed.




                                               9
