                           This opinion will be unpublished and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
                                      A16-1025

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Joshua David Wipper,
                                        Appellant.

                                  Filed October 11, 2016
                                         Affirmed
                                      Larkin, Judge

                                Cass County District Court
                                 File No. 11-CR-15-2252


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

Christopher J. Strandlie, Cass County Attorney, Jeanine R. Brand, Assistant County
Attorney, Walker, Minnesota (for respondent)

Rich C. Kenly, Kenly Law Office, Backus, Minnesota (for appellant)



         Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Bratvold,

Judge.
                          UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges his conviction of fifth-degree assault, arguing that the district

court erred by denying his presentence request for plea withdrawal under Minn. R. Crim.

P. 15.05, subd. 2. We affirm.

                                           FACTS

       Appellant Joshua David Wipper was charged with fifth-degree domestic assault on

December 11, 2015 by citation. That day, Wipper signed a Misdemeanor Statement of

Rights, indicating that he wanted to plead guilty and give up his right to a trial. The

Misdemeanor Statement of Rights referred to the offense described in the citation, and it

described the maximum sentence, the right to counsel, the right to trial, the presumption of

innocence, the burden of proof, the right to remain silent, the right to confront and cross-

examine witnesses, and the right to subpoena witnesses.

       On January 13, 2016, Wipper appeared in district court with counsel and pleaded

guilty as charged. On January 26, Wipper filed a notice of substitution of counsel and a

motion to withdraw his plea. On March 10, Wipper appeared with his new attorney and

argued for plea withdrawal. Wipper provided testimony in support of withdrawal, asserting

that his first attorney told him he had to plead guilty, that he felt like he had no choice, and

that he did not understand what was going on during his plea.

       The district court denied Wipper’s motion, because it did not “find sufficient reason

to allow the plea to be withdrawn.” This appeal follows.




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                                       DECISION

         Wipper contends that the district court erred by denying his motion for plea

withdrawal. “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).

         The district court must allow plea withdrawal at any time “upon a timely motion

and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest

injustice.” Id., subd. 1. The district court may allow plea withdrawal before sentencing “if

it is fair and just to do so.” Id., subd. 2. “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.” Id. 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. Raleigh, 778 N.W.2d 90, 97 (Minn.

2010).

         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 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, reversing only in the “rare case.” Id.


                                               3
       Wipper argues that:

              In the case at hand, it is upon this second, more lenient basis,
              that the Appellant predicates his request. It is “fair and just” to
              allow the Appellant to withdraw his plea. He did not know
              what he was doing, only following what he was told by his
              attorney that he had to plead guilty.

       We first address Wipper’s assertion that “[h]e did not know what he was doing”

during the plea hearing, which is “evidenced by his conduct during the plea.” After

Wipper’s case was called at the plea hearing and his attorney informed the district court

that he wished to plead guilty, Wipper requested additional time to speak with his attorney

before tendering his plea, which the district court allowed. When the case was recalled,

Wipper stated that he understood that he would waive “all the rights that were earlier gone

through with [him],” including the right to a jury trial and the right to have the state prove

its case beyond a reasonable doubt. Wipper told the district court he was willing to waive

those rights and plead guilty. Later, at the plea-withdrawal hearing, Wipper testified that

he did not understand what was going on during his plea.

       When denying his plea withdrawal, the district court described Wipper’s testimony

in support of withdrawal, noting that “Wipper testified that his attorney told him that he

had to plead guilty and that his attorney did not tell him that he had the right to take the

case to trial.” The district court also described Wipper’s conflicting testimony in support

of his plea, noting that

              At the time of Mr. Wipper’s plea, the Court asked Mr. Wipper
              if he had any questions, and then allowed [him] more time to
              confer with his attorney. The Court specifically asked Mr.
              Wipper if he understood that he was waiving his right to a jury
              trial, and Mr. Wipper responded ‘Yes.’


                                              4
       After describing Wipper’s inconsistent testimony, the district court ruled that it did

not “find sufficient circumstances exist to justify” plea withdrawal. We view the district

court’s reasoning as an implicit rejection of Wipper’s testimony in support of plea

withdrawal.

       When a defendant makes inconsistent statements regarding the validity of his guilty

plea, “credibility determinations are crucial, [and] a reviewing court will give deference to

the primary observations and trustworthiness assessments made by the district court.” State

v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (Minn. June 11,

1997). We therefore defer to the district court’s implicit rejection of Wipper’s testimony

that he did not understand the proceedings.

       We next address Wipper’s assertion that he pleaded guilty because his first attorney

told him he “had to plead guilty.” Wipper did not submit an affidavit or testimony from

his first attorney to support that assertion. Instead, Wipper relied on his own testimony

that his first attorney told him he had to plead guilty and that he felt that he did not have a

choice. The district court implicitly rejected that testimony, and we defer to its credibility

determination.

       We last address Wipper’s assertion that there would be “absolutely no prejudice to

the state” if he were allowed to proceed to trial. “Even when there is no prejudice to the

state, 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 (Minn. Dec. 31, 2013). Because



                                              5
Wipper has not provided valid reasons why withdrawal is fair and just, we do not consider

the potential-prejudice factor.

       In sum, the district court did not abuse its discretion by concluding that Wipper did

not provide sufficient reasons for plea withdrawal. We therefore affirm.

       Affirmed.




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