                          This opinion will be unpublished and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
                                     A14-2123

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                  Casey James Pederson,
                                       Appellant.

                                   Filed April 18, 2016
                                        Affirmed
                                    Connolly, Judge

                                Lyon County District Court
                                  File No. 42-CR-14-806


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

Richard R. Maes, Lyon County Attorney, Abby J. Wikelius, Assistant County Attorney,
Marshall, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael W. Kunkel, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Reilly,

Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       On appeal from his conviction of fifth-degree drug possession and an 18-month

prison sentence, appellant argues that because he would not have pleaded guilty if he had

known that he was not subject to the career-offender sentencing statute, his plea was

improperly induced by the illusory threat of receiving an aggravated career-offender

sentence, and he should be allowed to withdraw his plea. We affirm.

                                          FACTS

       On August 16, 2014, appellant Casey James Pederson fled on foot from a police

officer attempting to execute a valid arrest warrant. While running, appellant dropped a

backpack he was carrying on the ground. Appellant evaded arrest for a short time but was

eventually discovered in a friend’s apartment and placed under arrest. The officer searched

the backpack appellant had abandoned and discovered appellant’s driver’s license, a small

baggie with methamphetamine, two syringes, a spoon with burn marks, an empty pen case

with white residue inside, a copper pipe with what appeared to be burnt marijuana inside,

and some cash.      Appellant was charged with: (1) fifth-degree controlled substance

possession; (2) fleeing a peace officer; (3) obstructing legal process; and (4) possession of

a hypodermic needle.

       On September 12, 2014, the state filed a notice of intent to seek an aggravated

sentencing departure on the grounds that appellant qualified for career-offender sentencing

pursuant to Minn. Stat. § 609.1095, subd. 4 (2014), based on the following five previous

felonies: (1) fleeing a police officer on October 5, 2004; (2) burglary 2nd degree, October 7,


                                              2
2005; (3) aggravated robbery, March 2, 2009; (4) terroristic threats, March 2, 2009; and

(5) burglary 3rd degree, February 8, 2011.

       On September 16, 2014, appellant pleaded guilty to one count fifth-degree drug

possession in exchange for the dismissal of the remaining charges and for a presumptive

prison sentence of 18 months. At the plea hearing, appellant stated that (1) he had enough

time to talk to his attorney about the charges; (2) he believed his attorney had been fully

informed of all the facts; (3) no one had “threatened [him] or pressured [him] in order to

get [him] to plead guilty”; and (4) he was not making any claim maintaining his innocence

but pleading guilty. The notice of intent to pursue career-offender sentencing was not

referenced on the record at the plea hearing nor were any motions objecting to the notice

of intent filed.

       After staying his direct appeal from the district court judgment, appellant filed a

petition for postconviction relief, arguing that his guilty plea was improperly induced by

the state’s notice to seek career-offender sentencing. It is undisputed that the notice was

deficient in establishing that the appellant could be sentenced as a career offender because

the notice did not contain five prior sequential felony convictions, as required under the

statute.1


1
  Under the statutory framework “prior conviction” is defined as “a conviction that
occurred before the offender committed the next felony resulting in a conviction before the
offense for which the offender is being sentenced under this section.” Minn. Stat.
§ 609.1095, subd. 1(c) (2014). Thus, because appellant was convicted of multiple felony
offenses in a single proceeding, aggravated robbery and terroristic threats on March 2,
2009, only one of them may be considered a “prior felony conviction” for purposes of
career-offender sentencing. Consequently, at the time appellant was being prosecuted for
the current offense, he had only four prior felony convictions.

                                             3
       At a postconviction relief hearing on May 7, 2015, appellant testified that the only

reason he had pleaded guilty was to avoid the aggravated sentence the state indicated it was

seeking based on his alleged career-offender status. On August 26, 2015, the district court

issued an order denying appellant’s request for plea withdrawal finding that appellant’s

testimony at the postconviction hearing was not credible and that the state’s notice of its

intent to seek an aggravated sentence was not an inducement for his plea.

                                     DECISION

       “When a defendant initially files a direct appeal and then moves for a stay to pursue

postconviction relief, we review the postconviction court’s decisions using the same

standard that we apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836 (Minn.

2012); State v. Petersen, 799 N.W.2d 653, 657 (Minn. App. 2011), review denied (Minn.

Sept. 28, 2011).

              We review legal issues de novo, but on factual issues our
              review is limited to whether there is sufficient evidence in the
              record to sustain the postconviction court’s findings. We will
              not reverse an order unless the postconviction court exercised
              its discretion in an arbitrary or capricious manner, based its
              ruling on an erroneous view of the law, or made clearly
              erroneous factual findings.

Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015) (citations omitted). This court reviews

de novo the validity of a guilty plea. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).

“A defendant does not have an absolute right to withdraw a valid guilty plea.” State v.

Theis, 742 N.W.2d 643, 646 (Minn. 2007). After sentencing, a defendant may withdraw a

guilty plea only by establishing that withdrawal is necessary “to correct a manifest

injustice.” Minn. R. Crim. P. 15.05, subd. 1; Theis, 742 N.W.2d at 646. A manifest


                                             4
injustice is shown when a guilty plea is not valid. Theis, 742 N.W.2d at 646. A valid guilty

plea “must be accurate, voluntary and intelligent (i.e., knowingly and understandingly

made).” State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).

       Appellant argues that the state’s notice of intent to seek an aggravated sentencing

departure based on an erroneous allegation that he was a “career offender” with five prior

felony convictions rendered his guilty plea involuntary. “The voluntariness requirement

insures that a guilty plea is not entered because of any improper pressures or inducements.”

State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000). To support this contention, appellant

cites to Hirt v. State, 214 N.W.2d 778 (Minn. 1974), and State v. Alanis, 583 N.W.2d 573

(Minn. 1998), neither of which support appellant’s position.2

       Hirt involved a defendant who pleaded guilty and then sought postconviction relief

alleging that his plea was not freely and voluntarily made. Hirt v. State, 214 N.W.2d at

779. Hirt alleged that he told his attorney of his fear of being charged as a career offender

but was advised not to worry. Hirt also signed a petition that stated “no officer or agent of

any branch of government . . . has made any promise or suggestion of any kind to me . . .

that I would receive a lighter sentence, or probation, or any other form of leniency, if I

would plead ‘GUILTY’.” Id. at 780. The Minnesota Supreme Court affirmed the

postconviction court’s finding that the plea was not freely and voluntarily given because


2
  Alanis is unpersuasive for two reasons. First, Alanis was effectively overruled by Padilla
v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010) (holding that an attorney provides
ineffective assistance of counsel by failing to advise a defendant that a plea of guilty would
make him subject to automatic deportation). Additionally, Alanis concerned a collateral
consequence of a plea, while this case concerns appellant’s sentence, which is a direct
consequence of his plea.

                                              5
they “[were] not left with the firm conviction that a mistake has been made.”3 Id. at 782.

But, in so ruling, the court stated:

                     Notwithstanding defendant’s lack of candor, that he had
              the burden of proof, and that his testimony at the
              postconviction hearing was inconsistent with: (1) the
              statements in the petition to plead guilty, (2) his sworn
              testimony at the arraignment that his plea was voluntary and
              not induced by any threats or promises, and (3) his initial
              reasons give[n] for pleading guilty, the postconviction court
              found that defendant’s plea was not freely and voluntarily
              given but was induced by threats.

Id. Despite its refusal to reverse the postconviction court’s decision that the plea was

involuntarily made, the supreme court granted the state’s motion to remand the case for

rehearing. The reason for the rehearing was to allow the state to refute Hirt’s testimony

with a witness the state failed to call to testify at the postconviction hearing because the

state did not believe that the postconviction court would credit Hirt’s testimony given that

his testimony at the postconviction proceeding conflicted with his previous testimony

under oath. Id. at 782-83.

       While on the surface Hirt might appear to stand for the proposition that a guilty plea

can be withdrawn under the manifest-injustice standard if the appellant claims in a

postconviction hearing that his guilty plea was based on fear of being charged in a manner

not permitted by law, we conclude that was not the intent of our supreme court. The court

was bound by the findings of credibility of the postconviction court, stating that it could



3
  Unlike Hirt, in this case the postconviction court found that the testimony was not
credible. Still, as in Hirt in order to overturn the postconviction court’s decision, this court
must be “left with the firm conviction that a mistake has been made.” Id. at 782.

                                               6
overturn the postconviction court only if it was “left with the firm conviction that a mistake

has been made.” Id. at 782.

       The factual background of this case is similar to Hirt. At the guilty plea hearing,

appellant (1) pleaded guilty to the charge of possession of controlled substances,

(2) testified that his plea was voluntary and not induced by any threats or promises, and

(3) gave the reasons for pleading guilty “I just want to go to prison . . . . I want to get out

of county jail.” Additionally, the judge verbally outlined his understanding of the plea

agreement on the record:

               The plea petition contemplates that [appellant] will be entering
               a plea of guilty to the—to Count One of the complaint,
               Controlled Substance Crime in the Fifth Degree. The
               remaining counts of the complaint would be dismissed. That
               the defendant would be committed to the Commissioner of
               Corrections for eighteen months . . . with the appropriate
               credits, and to pay a $100 fine plus surcharges and fees, and
               that all of the other charges would be dismissed.

Nowhere in the record, prior to sentencing, is any mention of a desire to avoid the

aggravated career sentencing as part of the plea bargain. Like in Hirt, appellant contradicts

himself by alleging at the postconviction hearing and in a self-serving affidavit that “the

only reason that [he pleaded] guilty is to avoid the aggravated sentence” and that he

“decided to plead guilty to avoid the risk of receiving the statutory maximum sentence of

five years in prison if [he] were to be found guilty at trial.” However, unlike Hirt the

district court found that his testimony at the postconviction hearing was not credible as it

contradicted previous testimony under oath and refused to allow appellant to withdraw his

guilty plea.



                                              7
       Appellant’s arguments that the postconviction court’s determination of appellant’s

lack of credibility is clearly erroneous are unpersuasive. Appellant first argues that his

stated motivation at the plea hearing to get out of county jail should not have been relied

on by the postconviction court because “it is reasonable that [appellant] did not want to

delay the inevitable by waiting for a presentence investigation report that would almost

certainly recommend that the court impose the guidelines sentence called for in the plea

agreement.” A possible reasonable alternative does not satisfy the clearly erroneous

standard, especially when no evidence of the proffered alternative can be found in the

record.

       Second, appellant argues that his indication that no one had pressured or threatened

him to plead guilty at the plea hearing does not conflict with his testimony at the

postconviction evidentiary hearing. But at the postconviction hearing, appellant argued

that the state, by giving him a notice of intent to pursue aggravated career sentencing,

pressured him to make a guilty plea. Appellant’s argument that “it is not clear” he would

have perceived the notice of intent to pursue the career-offender sentencing from the state

as a pressure or threat when questioned at the plea hearing is unpersuasive. Appellant

points to no facts in the record indicating that appellant did perceive the notice of intent as

a “threat” or “pressure.” Merely saying that “it is not clear” if he would have perceived

the notice of intent as a threat or pressure is not sufficient to show that the postconviction

court’s determination of credibility was clearly erroneous.

       Moreover, the possibility of aggravated career sentencing is not a threat or pressure

but simply part and parcel of the calculation that every defendant goes through in deciding


                                              8
to accept a plea offer. Appellant, as all defendants must in considering a guilty plea, was

required to weigh the likelihood of a conviction and the potential of aggravated sentencing

against the possibility of acquittal at trial. With the aid of an attorney, appellant made the

decision to accept the plea rather than take his chances at trial, without any discussion on

the record of the state’s notice of intent to pursue aggravated career sentencing.

       Finally, appellant argues that his failure to make an indication during the plea

hearing of his decision to plead guilty specifically to avoid career-offender sentencing is

of no consequence. We disagree. Appellant gave a reason for his guilty plea at the plea

hearing, to get out of county jail and go to prison. He then changed his reason, claiming

that he entered a plea of guilty to avoid the aggravated sentence. Had he indicated at the

plea hearing that his decision was, at least in part, based on his desire to avoid career-

offender sentencing, his testimony at the postconviction hearing would have supported a

finding of credibility.   As it is, appellant’s given reason for pleading guilty at the

postconviction hearing contradicts his testimony at the plea hearing and goes against a

finding of credibility.

       Because the postconviction court’s determination of appellant’s credibility was not

clearly erroneous, and supports the conclusion that the appellant’s guilty plea was made

voluntarily, we affirm the postconviction court’s denial of appellant’s motion to withdraw

his guilty plea.

       Affirmed.




                                              9
