                        This opinion will be unpublished and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
                                   A16-0084

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Frank Henry Stanhope,
                                      Appellant.

                              Filed November 21, 2016
                                     Affirmed
                                   Larkin, Judge

                           Hennepin County District Court
                             File No. 27-CR-14-13370


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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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



      Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and

Rodenberg, Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges his conviction of first-degree controlled-substance crime,

arguing that the district court erred by denying his presentence request for plea withdrawal.

We affirm.

                                          FACTS

       Respondent State of Minnesota charged appellant Frank Henry Stanhope with first-

degree controlled-substance crime. On December 17, 2014, Stanhope appeared before the

district court and rejected a plea offer from the state. On May 4, 2015, Stanhope once again

rejected a plea offer from the state. On July 20, Stanhope rejected another plea offer from

the state.

       Stanhope requested a pretrial hearing seeking to suppress the evidence against him.

The district court granted the request, held an evidentiary hearing, and denied Stanhope’s

motion to suppress.

       Stanhope ultimately pleaded guilty to first-degree possession of methamphetamine.

Stanhope submitted a plea petition in support of his guilty plea. The section of the petition

describing the “substance of the agreement” between Stanhope and the prosecutor states:

“Straight plea to Judge, set sentencing off, order PSI, Defense to argue for Downward

Departure.” Stanhope confirmed he understood that his attorney and the state could “make

argument[s] as to what the sentence should be,” that there was no guarantee of a downward

departure and no one had promised otherwise, and that by pleading guilty, he was giving

up his “right to challenge the admissibility of evidence that the prosecution has.”


                                             2
       Prior to sentencing, Stanhope retained a new attorney and moved to withdraw his

guilty plea. He argued that he “should be allowed to withdraw his guilty plea to correct a

manifest injustice,” that “[i]t would be fair and just to allow [him] to withdraw his guilty

plea,” and that his “former defense counsel’s actions and inactions in this case amount to

ineffective assistance of counsel.” He submitted an affidavit in support of his motion,

which included an e-mail from his first attorney. In the e-mail, the attorney advised

Stanhope: “I believe you have a strong case at being eligible for a departure.”

       At the sentencing hearing, the district court denied Stanhope’s motion to withdraw

his guilty plea, denied his motion for a downward sentencing departure, and sentenced him

to serve 120 months in prison. This appeal follows.

                                     DECISION

       Stanhope 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.” Minn. R. Crim. P. 15.05, subd. 1. “A manifest injustice exists if a guilty plea

is not valid.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). “[T]he manifest injustice

standard . . . requires withdrawal where a plea is invalid.” Theis, 742 N.W.2d at 646. To

be valid, a guilty plea must be “accurate, voluntary, and intelligent.” Perkins v. State, 559


                                             3
N.W.2d 678, 688 (Minn. 1997). “A defendant bears the burden of showing his plea was

invalid.” Raleigh, 778 N.W.2d at 94. The validity of a guilty plea is a question of law that

this court reviews de novo. Id.

       The district court may allow plea withdrawal before sentencing “if it is fair and just

to do so.” Minn. R. Crim. P. 15.05, 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 has the burden of advancing reasons to support

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

of proving 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 without good

reason” would “undermine the integrity of the plea-taking process.” Kim, 434 N.W.2d at

266. This court reviews 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.

       In denying Stanhope’s plea-withdrawal motion, the district court reasoned that

withdrawal was not necessary to correct a manifest injustice because Stanhope’s plea was

voluntary and intelligent. The district court also reasoned that Stanhope failed to meet his

burden under the fair-and-just standard because “there was nothing objectively in the


                                             4
record suggesting that [Stanhope] failed to comprehend the nature, purpose and

consequences of the plea.”

       On appeal, Stanhope argues that his plea was involuntary and unintelligent, and

therefore invalid. He further argues that because his plea was invalid, he meets both the

manifest-injustice and fair-and-just standards for plea withdrawal, stating that “[i]f the

arguments put forth . . . amount to a manifest injustice, they certainly meet the less stringent

‘fair and just’ standard.” Because Stanhope’s sole argument for plea withdrawal under

both standards is that his plea was invalid, we focus our analysis on that issue.

                                               I.

       Stanhope contends that “he was tricked into pleading guilty with an illusory idea

that he had a chance at probation and could appeal the Rasmussen ruling.” He argues that

his lawyer assured him that he could argue for a downward dispositional departure and

appeal the district court’s pretrial evidentiary ruling “based upon a premise, an illusory

promise that a probationary sentence and an appeal were possible when they were not,

effectively rendering Stanhope’s guilty plea . . . invalid.” We address each aspect of the

alleged illusory promise in turn.

       Illusory Promise: Possibility of a Probationary Sentence

       Stanhope argues that the state and his first lawyer “coerced [his] guilty plea with an

illusory possibility of sentence outcome.” Stanhope’s argument that the state coerced his

guilty plea with an illusory sentencing promise is unavailing because the record shows that

the state did not make Stanhope any promises regarding sentencing. In fact, Stanhope

rejected the state’s plea offers and pleaded guilty to the charge without the benefit of a


                                               5
sentencing agreement. Stanhope’s attempt to categorize the circumstances here as a

“promise” by the state that he could argue for a downward dispositional departure is not

persuasive because he does not cite authority showing that he needed the state’s approval

to argue for a dispositional departure. Nor does he allege that he was misled to believe that

he needed the state’s approval to argue for a dispositional departure.

       As to the alleged illusory sentencing promise by Stanhope’s first lawyer, Stanhope

argues that a “defense counsel’s promise to his or her client that they can argue for a

departure is also premised on a promise that the defendant’s argument could be successful.”

Stanhope further argues that if there is not a reasonable chance of receiving the departure,

then the promise to argue for a departure is illusory and the defendant’s plea is involuntary.

       As support for his position, Stanhope asserts that the e-mail advice from his first

lawyer, which advised that he had “a strong case at being eligible for a departure,” was

unreasonable. But Stanhope does not claim ineffective assistance of counsel on appeal,

which would have invited consideration of the reasonableness of his attorney’s

performance. Cf. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (stating that when

alleging ineffective assistance of counsel, a claimant “must demonstrate that counsel’s

performance fell below an objective standard of reasonableness, and that a reasonable

probability exists that the outcome would have been different but for counsel’s errors”

(quotation omitted)).

       In the absence of such a claim, there is no basis for this court to second guess the

reasonableness of the attorney’s sentencing advice.         Nonetheless, we note that the

attorney’s e-mail explained his opinion regarding the likelihood of a departure and the


                                              6
reasons for his opinion, including the sentencing judge’s “reputation of handing down

tough sentences after trial, but being very fair in cases that resolve prior to trial.” And as

the district court noted, the attorney “could not have known that Mr. Stanhope would admit

to [the probation officer conducting the PSI] that he used methamphetamine the night

before the meeting, and that he would deny wanting to live a sober lifestyle and viewed

treatment as ‘a waste of time.’”

       In sum, the record does not support Stanhope’s argument that the state and his first

lawyer “coerced [his] guilty plea with an illusory possibility of a sentence outcome.”

       Illusory Promise: Ability to Appeal Pretrial Evidentiary Ruling

       Stanhope also argues that his first attorney improperly induced his plea with an

illusory promise “that regardless of whether he received a departure, [he] still had the

ability to appeal a ruled-on evidentiary issue after pleading guilty.” He argues that he was

“given the idea that if he pleaded guilty, he could still challenge the [district court’s pretrial

evidentiary] ruling” and that his lawyer told him “that he could appeal [the ruling], and he

should enter a straight plea and argue for a departure.” Stanhope asserts that the alleged

misinformation regarding his ability to appeal the pretrial ruling renders his plea

unintelligent because he did not understand the direct consequences of his plea.

       “A guilty plea by a counseled defendant has traditionally operated . . . as a waiver

of all non-jurisdictional defects arising prior to the entry of the plea.” State v. Ford, 397




                                                7
N.W.2d 875, 878 (Minn. 1986). Thus, a defendant generally is not allowed to challenge

the district court’s pretrial rulings on appeal after pleading guilty.1

       If Stanhope’s attorney advised him that he could challenge the district court’s

pretrial ruling despite pleading guilty, that advice might call into question the intelligence

of Stanhope’s plea. Cf. Raleigh, 778 N.W.2d at 96-97 (explaining that for a plea to be valid

the defendant must understand the “plea’s direct consequences”). However, Stanhope’s

affidavit in support of plea withdrawal does not assert that his first attorney advised him

that he could plead guilty and nonetheless challenge the pretrial ruling on appeal. And the

e-mail that Stanhope submitted from his first attorney does not provide that advice.

       The only support for Stanhope’s assertion that his first attorney misinformed him

regarding his ability to appeal the pretrial ruling is his second attorney’s on-the-record

assertion that “Mr. Stanhope was flat out told that he could appeal that issue.” That

unsworn, hearsay assertion is contradicted by Stanhope’s guilty plea petition, which states:

              My attorney has told me and I understand . . . . [t]hat whether
              or not I have had [a pretrial hearing] I will not be able to object
              tomorrow or any other time to the evidence that the prosecutor
              has.

       It is also contradicted by the following acknowledgment at the time of his plea:

              STANHOPE’S ATTORNEY: You also understand that at this
              time you would give up your right, although we actually had
              the pretrial hearing yesterday afternoon, specifically by
              entering a guilty plea you give up your right to challenge the

1
  A defendant may preserve the right to appeal a dispositive pretrial ruling by pleading not
guilty and stipulating to the prosecution’s case under Minn. R. Crim. P. 26.01, subd. 4. See
State v. Myhre, 875 N.W.2d 799, 802 (Minn. 2016) (“Minn. R. Crim. P. 26.01, subd. 4,
replaced Lothenbach as the method for preserving a dispositive pretrial issue for appellate
review in a criminal case.”).

                                               8
              admissibility of the evidence that the prosecution has. Do you
              understand that?
              STANHOPE: Yes.

       In sum, the record does not contain evidence showing that Stanhope’s first attorney

misinformed him regarding his ability to appeal the pretrial ruling. Thus, there is no basis

for this court to conclude that his plea was unintelligent on this ground.

       Conclusion

       Lastly, we address Stanhope’s argument that his “claim of manifest injustice is not

simply waived by his acknowledgements at the time he pleaded guilty, but requires an

analysis of what the parties reasonably understood the nature of the plea agreement to be.”

This argument misses the mark for several reasons. First and foremost, there was not a

plea agreement in this case. Second, the state does not argue that Stanhope’s statements at

the time of his plea constitute a waiver. And third, Stanhope’s statements in support of his

plea are properly considered when determining whether the plea was valid.

       Appellate courts routinely rely on statements made by defendants at the time of their

guilty pleas, both on the record and in their plea petitions, when assessing the validity of

the pleas. See Raleigh, 778 N.W.2d at 96 (relying on an on-the-record exchange between

defendant and his attorney to conclude that defendant’s plea was voluntary); State v. Ecker,

524 N.W.2d 712, 718-19 (Minn. 1994) (relying on “[t]he record of the guilty plea” to reject

a claim that a plea was not voluntary); State v. Aviles-Alvarez, 561 N.W.2d 523, 526-27

(Minn. App. 1997), review denied (Minn. June 11, 1997) (relying on the plea petition and

testimony at the plea hearing to conclude that defendant’s plea was intelligent). Moreover,

when a defendant makes inconsistent statements regarding the validity of his guilty plea,


                                              9
“credibility determinations are crucial, [and] a reviewing court will give deference to the

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

Alvarez, 561 N.W.2d at 527.

       When Stanhope tendered his guilty plea, he acknowledged that there were no

guarantees or promises regarding sentencing.

              THE COURT: Okay. And so I think your attorney has
              indicated that he would be requesting at the time of sentencing
              that I would depart from the guidelines and either give less or
              do a dispositional departure, which means probation instead of
              prison. Do you understand that?
              THE DEFENDANT: Yes, ma’am.
              THE COURT: But you also understand there’s been no
              guarantee —
              THE DEFENDANT: Yes, ma’am.
              THE COURT: — no one’s made any promises of that?
              THE DEFENDANT: Yes.
              THE COURT: Okay. Because it entirely depends on what is
              in the pre-sentence investigation and whether or not I have
              substantial and compelling reasons to depart.
              THE DEFENDANT: Yes, ma’am. I understand.

       In denying Stanhope’s plea-withdrawal request, the district court noted that

Stanhope’s statements in support of his plea were inconsistent with his statements in

support of plea withdrawal. The district court noted that on one hand, “[m]ultiple times,

Mr. Stanhope stated that he understood” that “there were no guarantees or promises

[regarding sentencing] and that the PSI would give the Court the information needed to

either depart or not.” The district court also noted that on the other hand “Mr. Stanhope

claimed that he was induced to plead guilty by the promise of a reduced sentence.” In the

context of these inconsistent statements, the district court’s finding that Stanhope’s plea

was voluntary encompasses a credibility determination to which we defer.


                                            10
       In conclusion, Stanhope has not met his burden to show that his guilty plea was

involuntary or unintelligent and therefore invalid. The district court therefore did not err

by refusing to allow plea withdrawal under the manifest-injustice standard. Although

Stanhope does not argue that he is entitled to relief under the fair-and-just standard if his

manifest-injustice claim fails, we nonetheless note that on this record, the district court did

not abuse its discretion by denying plea withdrawal under the fair-and-just standard.

       Affirmed.




                                              11
