                        This opinion will be unpublished and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
                                   A15-0176

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                              Corey Edward Fisherman,
                                     Appellant.

                              Filed December 21, 2015
                                     Affirmed
                                  Connolly, Judge

                            Beltrami County District Court
                               File No. 04-CR-14-1957


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

Annie Claesson-Huseby, Beltrami County Attorney, David P. Frank, Assistant County
Attorney, Bemidji, Minnesota (for respondent)

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


      Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and

Klaphake, Judge.




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                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges the district court’s decision denying his motion to withdraw

his guilty plea arguing that it was not fair and just to deny it in light of the motion being

made immediately after the appellant pleaded guilty. We affirm.

                                          FACTS

       Appellant Corey Edward Fisherman was arrested on suspicion of domestic assault

on June 21, 2014. At a plea hearing on October 6, 2014, appellant pleaded guilty to one

count of felony domestic assault which would also constitute an admission of violating

his probation. Appellant’s plea was on a Norgaard basis because appellant claimed he

did not remember the incident due to intoxication.1 Appellant agreed, based on the

statements of T.M. (appellant’s former domestic partner and the victim) and neighbors,

that there would be a substantial likelihood that appellant would be found guilty of

assaulting T.M. Appellant had a previous misdemeanor domestic assault conviction from

December 13, 2013, and a gross misdemeanor domestic abuse no contact order violation

which occurred on March 28, 2014.

       After pleading guilty, appellant, through his attorney, requested a furlough in order

to visit his infant daughter, a child that appellant had with the victim who was born after

the assault, and to get his financial affairs in order before being sent to prison. The plea

1
  “A plea constitutes a Norgaard plea if the defendant asserts an absence of memory on
the essential elements of the offense but pleads guilty because the record establishes, and
the defendant reasonably believes, that the state has sufficient evidence to obtain a
conviction.” Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009); see State ex rel.
Norgaard v. Tahash, 261 Minn. 106, 110 N.W.2d 867 (1961).

                                             2
agreement was clearly communicated, on the record, by appellant’s attorney at the

October 6, 2014, hearing and at no point was the furlough mentioned as part of the

agreement. The district court judge denied his request. Following the court’s post-plea

denial of appellant’s request for a furlough, appellant moved to withdraw his guilty plea,

claiming that his wish to get out and “take care of business before going down” was the

only reason he pleaded guilty. At a hearing the following day regarding the motion to

withdraw his guilty plea, appellant argued that frustration with the district court’s

decision regarding the furlough request was the reason supporting the motion.

       The district court found that appellant’s guilty plea was made knowingly and

intelligently, that he understood the agreement, that he answered questions regarding his

lack of memory of the incident, and that he explained why he did not have a memory of

the incident.   The district court judge explained that she typically does not grant

furloughs to people going to prison but attempted to contact the jail about visits with his

infant daughter and recommended appellant work with his lawyer to take care of his

personal financial affairs. At a hearing on November 4, 2014, appellant was sentenced to

29 months in prison on the felony domestic assault charge.

       This appeal follows.

                                     DECISION

       “A defendant has no absolute right to withdraw a guilty plea after entering it.”

State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). There are two relevant standards for

guilty-plea withdrawal depending on whether the request is made before or after

sentencing. The district court’s decision to permit withdrawal under the fair-and-just


                                            3
standard, which is applied when the motion is made prior to sentencing, is discretionary.

Minn. R. Crim. P. 15.05, subd. 2.       “[T]he ‘ultimate decision’ of whether to allow

withdrawal under the ‘[fair-and-just]’ standard is ‘left to the sound discretion of the

[district] court, and it will be reversed only in the rare case in which the appellate court

can fairly conclude that the [district] court abused its discretion.’” State v. Kaiser, 469

N.W.2d 316, 320 (Minn. 1991) (quoting Kim v. State, 434 N.W.2d 263, 266 (Minn.

1989)). If a defendant requests to withdraw his plea after sentencing, the manifest-

injustice standard applies to the case. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010);

Minn. R. Crim. P. 150.05, subd. 1 (2015).

       Because this plea withdrawal motion was made prior to sentencing, under Minn.

R. Crim. P. 15.05, the fair-and-just standard applies. In considering whether it is fair and

just to allow a defendant to withdraw a plea, the district court is required to consider two

factors: “(1) the reasons a defendant advances to support withdrawal and (2) prejudice

granting the motion would cause the State given reliance on the plea.” Raleigh, 778

N.W.2d at 97. The defendant has the burden of showing sufficient reasons to support

plea withdrawal, while the state has the burden of showing prejudice. Id. Although the

fair-and-just standard “is less demanding than the manifest injustice standard, it does not

allow a defendant to withdraw a guilty plea for simply any reason.” State v. Theis, 742

N.W.2d 643, 646 (Minn. 2007) (quotation omitted).

       “When a guilty plea is entered, it must be accurate, voluntary, and intelligent (that

is, knowing and understanding).” State v. Farnsworth, 738 N.W.2d 364, 372 (Minn.

2007). However, just because a plea is entered, accurately, knowingly, and intelligently,


                                             4
does not necessarily mean defendant lacked a fair-and-just reason to withdraw the plea.

See State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991) (holding that even though the

guilty plea was made accurately, voluntarily, and intelligently, defendant could still argue

that his attorney had coerced him into pleading guilty and the trial court erred in not

granting defendant’s request to testify at the hearing in support of his own claim that

there was a fair-and-just reason to withdraw defendant’s guilty plea).

1.     Did the district court wrongfully apply the manifest-injustice standard rather
       than the fair-and-just standard?

       Appellant first argues that the district court used the manifest-injustice standard

rather than the fair-and-just standard. In making this determination, we consider “the

entire context” in which the plea occurred. State v. Abdisalan, 661 N.W.2d 691, 695

(Minn. App. 2003), review denied (Minn. Aug. 19, 2003). A district court abuses its

discretion when denying a defendant’s motion to withdraw a guilty plea if the record

establishes that the district court did not consider the motion under the proper legal

standard. State v. Cubas, 838 N.W.2d 220, 224 (Minn. App. 2013), review denied (Minn.

Dec. 31, 2013).

       Here, the district court did not expressly reference either the fair-and-just or

manifest-injustice standard, but stated that it denied appellant’s motion because the plea

was a knowing and intelligent plea, appellant answered the questions and understood

them, appellant provided answers to questions regarding whether or not he had any

memory of the event, appellant explained why he did not have such a memory, and that

the reason for the motion was his opinion of the court’s decision to deny a furlough.



                                             5
Appellant argues the district court only considered whether withdrawal was necessary to

prevent a manifest injustice and not under the fair-and-just standard. See Anderson v.

State, 746 N.W.2d 901, 911 (Minn. App. 2008) (stating that a manifest injustice occurs

when a guilty plea is not accurate, voluntary, and intelligent). We disagree.

       Though the factors that the district court considered are relevant to the accuracy

and intelligence of appellant’s plea, they are also pertinent to a district court’s “due

consideration” of whether there are fair-and-just reasons to permit plea withdrawal. The

district court does not abuse its discretion in denying a presentence motion to withdraw a

guilty plea if “[n]othing objectively in the record suggests that [the defendant] failed to

comprehend the nature, purpose, and consequences of [the] plea.”            Abdisalan, 661

N.W.2d at 694. Thus, when determining whether a defendant has established fair-and-

just reasons to withdraw his plea, the district court may consider whether defense counsel

pressured the defendant to plead guilty, whether the defendant was informed of his trial

rights, and whether the defendant’s factual basis underlying the offenses demonstrated

that the defendant entered the plea voluntarily. See id. at 694-95 (concluding, based on

those reasons, that the district court did not abuse its discretion in denying the plea-

withdrawal motion).

       The record establishes that the district court engaged in the proper legal analysis in

determining whether appellant should be permitted to withdraw his guilty plea.

Appellant was asked, and answered in the affirmative, that (1) he was clear of mind and

not on any medication that would make it difficult for him to understand the proceedings;

(2) he could read and write the English language; (3) he understood he was being charged


                                             6
with one count of felony domestic assault; (4) he understood the maximum penalty for

felony domestic assault that he could be given; (5) he was satisfied with his attorney, who

was fully informed of the facts surrounding the case, and that he had enough time to

review the case with his attorney; (6) he understood he had the right to maintain his not

guilty plea and had a right to a jury trial and a privilege against self-incrimination; and

(7) he understood that he would be “waiving, or giving up, each of the rights” the court

went over.

        Furthermore, the court asked if appellant wished to give up the rights that the court

listed and enter a guilty plea to committing domestic assault back on June 21st in

Beltrami County. Appellant answered in the affirmative and also admitted that he was

making his decision knowingly and voluntarily after an opportunity to talk with his

attorney. The court also reviewed all of the reports by neighbors, the police, and T.M.

that would be brought against him at trial and appellant agreed that based on that

evidence, there would be a substantial likelihood that appellant would be found guilty of

assaulting T.M. Regardless of whether the court stated so explicitly on the record, this

court concludes that appellant voluntarily waived his rights, an adequate factual basis for

the plea has been established, and the appellant made the plea with full knowledge of his

trial rights.

2.      Did the district court abuse its discretion in rejecting appellant’s argument to
        support a plea withdrawal?

        Appellant’s only argument for withdrawing the guilty plea was because he was

frustrated with the district court’s decision to deny his furlough request. “Public policy



                                              7
favors the finality of judgments and courts are not disposed to encourage accused persons

to play games with the courts by setting aside judgments of conviction based upon pleas

made with deliberation and accepted by the court with caution. Kaiser v. State, 641

N.W.2d 900, 903 (Minn. 2002) (quotations omitted). If a court permitted a defendant to

withdraw his plea any time he was unhappy with a subsequent decision by the district

court, the integrity of the plea-bargaining process would be compromised. See Kim, 434

N.W.2d at 263 (“Underlying [Minn. R. Crim. P. 15.05] is the notion that giving a

defendant an absolute right to withdraw a plea before sentence would undermine the

integrity of the plea-taking process.”). Therefore, we will not reverse a denial of a

motion to withdraw a guilty plea based on no other reason than frustration with a district

court decision on a matter unrelated to the plea agreement.

3.     Did the district court abuse its discretion in denying appellant’s guilty plea
       withdrawal because the state failed to show prejudice resulting from the plea
       withdrawal?

       Appellant next argues that the state’s failure to show prejudice resulting from the

plea withdrawal is further proof that the district court abused its discretion. Contrary to

appellant’s assertion, the state was not required to prove prejudice in order for the district

court to deny the plea withdrawal request. “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 at 224. The state’s failure to assert prejudice did not preclude the district

court from exercising its discretion to deny appellant’s plea withdrawal motion given his

lack of a valid reason for withdrawal.


                                              8
4.     Should the appellant be allowed to withdraw his guilty plea because the
       district court had not formally accepted the plea on the record?

       Appellant also argues that because the district court had not formally accepted the

plea, it is fair and just that appellant should be able to withdraw it. A court’s disposition

of a guilty plea is not required by Minn. R. Crim. P. 15.05. The rule states:

              Before Sentence. In its discretion the court may allow the
              defendant to withdraw a plea at any time before sentence if 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. Appellant cites to State v. Jeffries, 806 N.W.2d 56, 62

(Minn. 2011) to argue that a court must formally adjudicate a guilty plea in one of three

ways in order for the plea to be actualized. However, Jeffries states:

              [A]t a hearing after a defendant tenders a valid guilty plea, the
              trial court may order any of three separate dispositions: accept
              the plea on the terms of the plea agreement, reject the plea, or
              defer its decision to accept or reject the plea pending
              completion of a presentence investigation.

Id. at 62. Even in Jeffries, the court states that “a valid guilty plea” must first be entered

before a court can act. Minn. R. Crim. P. 15.05 subd. 2 states that the court may allow

the defendant to withdraw a plea at any time before sentence, without a requirement that

the court dispose of the guilty plea. Appellant fails to provide a compelling argument as

to why it would be fair and just to allow the appellant to withdraw his plea just because

the court had not yet disposed of the guilty plea when Minn. R. Crim. P. 15.05 does not

provide such a right.




                                              9
5.     Did the district court err in denying the plea withdrawal because the district
       court failed to state on the record that it found a voluntary waiver of rights
       and established an adequate factual basis?

       Finally, appellant argues that at no point in the hearing did the court state, on the

record, that it found a voluntary waiver of rights and that an adequate factual basis had

been established. As discussed above, there was clearly a voluntary waiver of rights and

an adequate factual basis had been established. Appellant points to no authority that

indicates a court must affirmatively state on the record that it finds a voluntary waiver of

rights and that an adequate factual basis had been found and, in fact, this court has held

the opposite. See State v. Johnson, 867 N.W.2d 210, 217 (Minn. App. 2015) (holding

that there is no requirement in a Norgaard guilty plea for the district court to make an

express finding on the record that there is a strong probability that the defendant would

be found guilty of the crime to which he is pleading guilty).

       This is not the “rare case” in which the district court abuses its discretion by

denying plea withdrawal under Minn. R. Crim. P. 15.05, subd. 2. Kim, 434 N.W.2d at

266. Based on this record, the district court did not abuse its discretion in denying

appellant’s motion to withdraw his Norgaard plea.

       Affirmed.




                                            10
