                         This opinion will be unpublished and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
                                    A15-1890

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                   Kelvin Lenar Lee,
                                      Appellant.

                               Filed September 26, 2016
                                       Affirmed
                                    Randall, Judge *

                             Hennepin County District Court
                               File No. 27-CR-14-19790


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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

         Considered and decided by Worke, Presiding Judge; Ross, Judge; and Randall,

Judge.




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                         UNPUBLISHED OPINION

RANDALL, Judge

       Appellant argues that the district court abused its discretion in denying appellant's

pre-sentencing motion to withdraw his guilty plea. Appellant claims it would have been

fair and just to permit withdrawal, and the state would not have been unfairly prejudiced

as a result. Because we conclude that appellant did not advance sufficient reasoning that

he should be entitled to withdraw his plea under the fair-and-just standard, we affirm.

                                          FACTS

       On June 23, 2015 appellant Kelvin Lenar Lee pleaded guilty to possessing six grams

or more of cocaine on May 30, 2014. At the guilty-plea hearing appellant was asked “[Y]ou

have admitted that you are an active user. . . [b]ut are you here today with a clean mind,

and [do] you understand everything we are doing?” to which appellant replied, “Yes, I’m

here today with a clean mind, and I do understand.” The court later stated, “I find . . . that

you are knowingly, voluntarily, and intelligently waiving your right to a trial in this case”

to which the appellant replied, “[y]es, ma’am.”

       On July 13, 2015, at the sentencing hearing, appellant made a motion requesting

that his counsel withdraw from representation and that he be permitted to withdraw his

guilty plea. Appellant claimed that he was under a great deal of stress on the day of the

plea hearing which impaired his thinking, that he intended to go through to trial from the

beginning of the process, that he was suffering from effects of post-traumatic stress

syndrome, that he was using drugs the night before his plea hearing, and that, although he

remembers saying he was not under the influence and that he was speaking with a clear


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mind, he did not speak with a clear mind because he did not realize he was still under the

effects of drugs for a few days. The district court denied appellant’s petition to withdraw

his plea under the fair-and-just standard concluding that appellant had knowingly and

voluntarily waived his rights at the plea hearing and that the state would suffer prejudice

because the trial date had been extended several times already.

                                       DECISION

       “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). Guilty pleas may be withdrawn only if

one of two standards is met. See Minn. R. Crim. P. 15.05 (setting forth the manifest-

injustice and fair-and-just standards for plea withdrawal). Appellant contends that the

district court abused its discretion in denying his guilty plea withdrawal under the fair-and-

just standard.

       The district court has discretion to allow plea withdrawal before sentencing

                 [I]f it is fair and just to do so. The court must give due
                 consideration to the reasons advanced by the defendant in
                 support of the motion and any prejudice the granting of the
                 motion would cause the prosecution by reason of actions taken
                 in reliance upon the defendant’s plea.

Minn. R. Crim. P. 15.05, subd. 2. A defendant bears the burden of advancing reasons to

support withdrawal. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). The state bears the

burden of showing prejudice caused by withdrawal. State v. Wukawitz, 662 N.W.2d 517,

527 (Minn. 2003). Although it is a lower burden, the fair-and-just standard “does not allow

a defendant to withdraw a guilty plea for simply any reason.” Theis, 742 N.W.2d at 646

(quotation omitted). Allowing a defendant to withdraw a guilty plea “for any reason or


                                              3
without good reason” would “undermine the integrity of the plea-taking process.” Kim,

434 N.W.2d at 266. We review a district court’s decision to deny a motion to withdraw a

guilty plea under the fair-and-just standard for an abuse of discretion. Id.

       Appellant argues that his guilty plea withdrawal should have been allowed because

it had always been his intention to take the matter to trial but he had become discouraged

by the numerous delays that had occurred and by the issues he was coping with outside of

the courtroom. We do not find this argument to be persuasive. The matter was set for trial

and was then delayed when appellant made a motion for discovery from the City of

Minneapolis and then the trial was continued at least one other time at appellant’s request.

The delays that had occurred were partly the byproduct of appellant’s actions and not

adequate to support a fair and just reason for plea withdrawal.

       Appellant also argues that granting the withdrawal of his plea is fair and just because

his decision to plead guilty came after using drugs the night before and failing to get

sufficient rest. This argument is not persuasive. At the guilty-plea hearing, the district

court asked appellant if he was pleading guilty with a clean mind and an understanding of

what was occurring, taking special note of his status as an active user. Appellant responded

that he was making the plea with a clear mind. Further, appellant has never argued that his

plea was inaccurate, unintelligent, or involuntary and agrees that none of his circumstances

are per se sufficient to constitutionally invalidate his guilty plea. See State v. Ecker, 524

N.W.2d 712, 716 (Minn. 1994) (stating that to be valid, a guilty plea must be “accurate,

voluntary and intelligent”). Appellant did not indicate at the plea-withdrawal hearing how

the drugs were influencing his plea. He stated: “You know, I didn’t think that I was under


                                              4
the influence at the time but. . . it take[s] a couple of days to withdraw from the use of drugs

. . . and . . . it takes a while for me to think clearly . . . with doing the withdraw.” In his

brief, appellant argues that, even if he is suffering “buyer’s remorse,” the fair-and-just

standard should be “sensitive to and accommodating of” circumstances of an individual

appellant. The fair-and-just standard does not require “sensitivity” or accommodation. All

that is required is that the district court “give due consideration to the reasons advanced by

the defendant in support of the motion and any prejudice the granting of the motion would

cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.”

Minn. R. Crim. P. 15.05, subd. 2.

       We give deference to the credibility determinations made by a district court during

a plea hearing. State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review

denied (Minn. June 11, 1997). “[D]istrict court findings which are the product of firsthand

observation of the demeanor of parties and witnesses possess a certain integrity not

contained in the written record alone.” Tamarac Inn, Inc. v. City of Long Lake, 310 N.W.2d

474, 477 (Minn. 1981). Relying on its conversations with, and observations of, appellant,

the district court concluded that the plea was made knowingly, voluntarily, and

intelligently. Based upon its observations and conversations with appellant, including

appellant’s statements under oath that he was not under the influence of any drugs, the

district court concluded that appellant was of sound mind when he made his guilty plea.

This is not the “rare case” in which the court should reverse a guilty plea under the fair-

and-just standard. Instead, granting the plea withdrawal, under these circumstances, would

undermine the integrity of the plea-taking process. Kim, 434 N.W.2d at 266.


                                               5
       The district court also made a determination that granting plea withdrawal would

unfairly prejudice the state because the trial date had been continued several times already.

Neither party addresses the prejudice to the state if the plea-withdrawal motion were to be

granted. However, under the fair-and-just standard the state does not need to produce

evidence of prejudice where the appellant has failed to advance adequate reasons why

granting the plea withdrawal is “fair and just.” Raleigh, 778 N.W.2d at 98. Because we

conclude that appellant has failed to show adequate reasons to support the argument that

withdrawal is fair and just, we do not address the question of whether the state would be

prejudiced if the plea-withdrawal motion was granted.

       We conclude the district court properly found that appellant did not advance

sufficient reasoning that he should be entitled to withdraw his plea under the fair-and-just

standard.

       Affirmed.




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