                         This opinion will be unpublished and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
                                    A14-0744

                         Joseph Jermaine Henderson, petitioner,
                                      Appellant,

                                          vs.

                                  State of Minnesota,
                                     Respondent.

                               Filed December 1, 2014
                                      Affirmed
                                     Kirk, Judge

                            Hennepin County District Court
                              File No. 27-CR-11-35279


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

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)


         Considered and decided by Worke, Presiding Judge; Kirk, Judge; and Reyes,

Judge.
                          UNPUBLISHED OPINION

KIRK, Judge

          On appeal from the postconviction court’s denial of his motion to withdraw his

guilty plea, appellant argues that the district court (1) impermissibly interjected itself into

the plea-negotiation process and (2) erred by accepting appellant’s waiver of his right to a

probation-revocation hearing without ensuring that he waived his due process rights. We

affirm.

                                           FACTS

          In November 2011, respondent State of Minnesota charged appellant Joseph

Jermaine Henderson with one count of first-degree aggravated robbery. In January 2012,

appellant appeared before the district court and entered a guilty plea to the charge.

Appellant waived his jury-trial rights, and he and his counsel reviewed the petition to

enter a guilty plea on the record. Appellant testified that he understood that he had not

reached a plea agreement with the state and instead was entering a straight plea to the

district court. Appellant admitted that although the state offered him 41 months in prison

in exchange for a guilty plea to simple robbery, he did not agree to that offer. The district

court sentenced appellant to 132 months in prison, but stayed that sentence for three

years. The district court also ordered appellant to serve 365 days in the workhouse.

          In November 2012, appellant appeared before the district court for a probation-

violation hearing based on a new charge. The state offered to dismiss the new charge if

he admitted to the probation violation and agreed to have the district court revoke his

stayed sentence and impose the 132-month sentence. In response, appellant’s counsel


                                              2
requested that the district court sentence appellant to 114 months if he admitted the

probation violation. The district court noted on the record that it had been the sentencing

court for appellant’s first-degree aggravated robbery charge and, at the time of

sentencing, appellant’s counsel had asked the court what sentence it would impose. The

district court recalled that it had responded “Well, if he wants probation, it’s 132 months

stayed for three years. One year at the workhouse.” The district court noted that

appellant asked for time to think about what he wanted to do, and he later entered a guilty

plea. As a result, the district court stated that appellant “had a full understanding of what

would happen if he came back on a probation violation,” and therefore it was “not going

to do anything different than 132 months.”

       After consulting with his counsel, appellant decided to request execution of his

stayed sentence. Appellant’s counsel questioned appellant as follows:

              [APPELLANT’S COUNSEL]: Is it true that you—we did
              discuss the fact that you’ve got the right to a hearing, or
              actually a jury trial in these cases. Do you understand that?
              [APPELLANT]: Yes.
              [APPELLANT’S COUNSEL]: And you understand that if the
              [s]tate still wished to pursue the probation violation that
              they’d have to establish by clear and convincing evidence that
              you intentionally and otherwise inexcusably violated a term
              of your—term or condition of your probation; do you
              understand that?
              [APPELLANT]: Yes.
              [APPELLANT’S COUNSEL]: And you understand that
              you’d have the right to an allocution hearing or we could
              argue to the [c]ourt that the [c]ourt should do something other
              than executing your sentence. Do you understand that?
              [APPELLANT]: Yes.




                                             3
Appellant then agreed that he was demanding execution of his 132-month sentence. The

district court accepted appellant’s waiver and admissions, revoked his probation, and

imposed the 132-month sentence.

      In November 2013, appellant filed a petition for postconviction relief. Appellant

argued that he should be allowed to withdraw his plea because: (1) the district court

impermissively injected itself into the plea negotiations, making his plea invalid; and

(2) his waiver of a probation-violation hearing was not knowing, voluntary, and

intelligent. The postconviction court denied the petition. This appeal follows.

                                    DECISION

      This court reviews a district court’s ultimate decision to deny postconviction relief

for an abuse of discretion.    State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004).

Generally, the “scope of review is limited to the question of whether sufficient evidence

exists to support the postconviction court’s findings.” Perkins v. State, 559 N.W.2d 678,

685 (Minn. 1997). But we review issues of law de novo. Leake v. State, 737 N.W.2d

531, 535 (Minn. 2007). Because the validity of a guilty plea is a question of law, we

apply de novo review. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).

      A defendant may withdraw a guilty plea at any time, even after sentencing, if

“withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05,

subd. 1. A manifest injustice occurs when a guilty plea is invalid. State v. Theis, 742

N.W.2d 643, 646 (Minn. 2007). A guilty plea is valid if it is accurate, voluntary, and

intelligent. Perkins, 559 N.W.2d at 688. It is the defendant’s burden to show that his

guilty plea is invalid. Raleigh, 778 N.W.2d at 94.


                                            4
I.     The district court did not impermissibly interject itself into the plea-
       negotiation process.

       A guilty plea is per se invalid when the district court impermissibly interjects itself

into plea negotiations. State v. Anyanwu, 681 N.W.2d 411, 414 (Minn. App. 2004).

When the district court does so, “it has removed itself from the role of an ‘independent

examiner’ of the plea negotiations and has stepped into the position of ‘one of the parties

to the negotiation’ by becoming ‘excessively involved in the negotiations themselves.’”

Id. at 414-15 (citing State v. Johnson, 279 Minn. 209, 216 n.11, 156 N.W.2d 218, 223

n.11 (1968)). But it is not improper for the district court to be involved in a plea

negotiation; rather, the district court “has a delicate role in a plea negotiation and

necessarily plays a part in any negotiated guilty plea.” Id. at 415.

       In Anyanwu, the state charged the defendant with attempted first-degree murder,

first-degree assault, and second-degree assault. 681 N.W.2d at 412. At the plea hearing,

the state sought the statutory maximum sentence of 240 months. Id. The defendant’s

counsel stated on the record that the defendant would plead guilty to all three counts in a

straight plea to the district court, with the understanding that the district court would

impose a 210-month sentence. Id. The district court stated on the record that it was

“agreeing to, if [the defendant] pleads guilty, to give a sentence to the [c]ommissioner of

[c]orrections for 210 months.” Id. (quotation marks omitted). The prosecutor objected to

any sentence other than 240 months in prison, and stated “the record should be clear that

this is an agreement between the defense and the [c]ourt and that the [s]tate is not a party

to it.” Id. (quotation marks omitted). At the sentencing hearing, the district court

imposed a 210-month sentence, and the prosecutor again objected. Id.

                                              5
         On appeal, this court reversed the defendant’s conviction, concluding that “the

district court directly and unequivocally promised the defendant a particular sentence in

advance, and forced the plea bargain on the prosecutor over the prosecutor’s objections.”

Id. at 415. This court noted that, “[b]y doing so, the district court stepped into the

position of one of the parties to the negotiation, over the objection of the prosecutor, and

abandoned its role as an independent examiner.” Id.

         This case is distinguishable from Anyanwu. Here, appellant’s counsel specifically

questioned appellant on the record about his decision to enter a straight plea to the district

court:

                [APPELLANT’S COUNSEL]: Now, you understand that you
                are entering a straight plea to the judge, so we have not
                reached a negotiation with the prosecutor, correct?
                [APPELLANT]: Correct.
                [APPELLANT’S COUNSEL]: And you had some other
                options available to you where the prosecutor was offering
                that you plead guilty to a simple robbery for 41 months in
                prison. Do you understand that?
                [APPELLANT]: Yes.
                [APPELLANT’S COUNSEL]: And you decided that you did
                not want to do that, correct?
                [APPELLANT]: Right.

There is nothing in the transcript of the plea hearing to indicate that the district court

made an unequivocal promise to appellant regarding his sentence. In contrast, the district

court in Anyanwu specifically promised the defendant that it would sentence him to 210

months in prison if he pleaded guilty. 681 N.W.2d at 412.

         Appellant argues that the district court’s statement at the revocation hearing about

what it remembered telling appellant at the plea hearing establishes that the district court

made a promise to appellant regarding his sentence. We disagree. The statements on the

                                              6
record at the plea hearing are more relevant than statements at the probation-revocation

hearing. And the district court’s statements at the probation-revocation hearing about its

recollection of appellant’s decision to plead guilty almost 11 months earlier do not

establish that the district court unequivocally promised that it would impose a particular

sentence in exchange for appellant’s guilty plea. Viewed in context, the district court was

simply recalling to the best of its ability the discussions it had with appellant’s counsel

and the prosecutor. The district court’s statement does not establish that it “removed

itself from the role of an independent examiner” by stepping “into the position of one of

the parties to the negotiation by becoming excessively involved in the negotiations

themselves.” See Anyanwu, 681 N.W.2d at 414-15 (quotations omitted). Further, unlike

the prosecutor in Anyanwu who objected to the imposition of the sentence at both the plea

hearing and the sentencing hearing, the prosecutor in this case never objected to the

district court’s imposition of the sentence. See id. at 412. Therefore, because the district

court in this case did not impermissibly interject itself into the plea negotiations, the

postconviction court did not err by denying appellant’s motion to withdraw his guilty

plea on this basis.

II.    The district court did not err by accepting appellant’s waiver of his right to a
       probation-revocation hearing.

       Appellant argues that his due process rights were violated when the district court

failed to obtain a knowing and voluntary waiver of his right to a probation-violation

hearing. Although appellant acknowledges that the postconviction court failed to address

this issue, he argues that this court should address it because he raised it in his

postconviction petition. We agree. Appellant raised the issue to the district court, and

                                             7
the district court framed the issue in its order consistent with appellant’s argument, but it

exercised its discretion not to decide the issue.

       The United States Supreme Court described the due process requirements for

parole- and probation-revocation proceedings in two cases. See Gagnon v. Scarpelli, 411

U.S. 778, 781-82, 93 S. Ct. 1756, 1760 (1973); Morrissey v. Brewer, 408 U.S. 471, 489,

92 S. Ct. 2593, 2604 (1972). “At the preliminary hearing, a probationer or parolee is

entitled to notice of the alleged violations of probation or parole, an opportunity to appear

and to present evidence in his own behalf, a conditional right to confront adverse

witnesses, an independent decisionmaker, and a written report of the hearing.” Gagnon,

411 U.S. at 786, 93 S. Ct. at 1761. Minn. R. Crim. P. 27.04, subd. 2(1)(c), requires the

district court to advise the defendant of several rights at his first appearance in a

probation-violation proceeding, including his rights to: an attorney; a revocation hearing;

disclosure of all evidence supporting revocation; present evidence, subpoena witnesses,

call and cross-examine witnesses; present mitigating evidence; and appeal.

       Appellant argues that he was not advised of his right to a hearing, to present

evidence in his favor, and to confront and cross-examine adverse witnesses. The state

concedes that the district court did not ensure that appellant was specifically advised of

all of his rights under Minn. R. Crim. P. 27.04, subd. 2(1)(c). But it contends that the

district court substantially complied with the rule because appellant received notice of the

alleged violation, was represented by counsel, and was advised of many of his rights.

       We agree that appellant was not specifically advised on the record of each of his

rights under Minn. R. Crim. P. 27.04, subd. 2(1)(c). But because appellant demanded


                                              8
execution of his sentence, which was his right, Minn. R. Crim. P. 27.04, subd. 2(1)(c),

did not apply. See State v. Randolph, 316 N.W.2d 508, 510 (Minn. 1982). The best

practice would have been for the district court to ensure that appellant waived his rights

under that rule because he was appearing for a probation-violation hearing, but the

district court did not err by failing to do so.

       Affirmed.




                                                  9
