This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0427
State of Minnesota, Respondent,
vs.
Clemente Ramirez-Diaz, Appellant
Filed January 17, 2016 Affirmed Worke, Judge
Hennepin County District Court File No. 27-CR-15-12429
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, Lydia Villalva Lijo, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges his first-degree criminal-sexual-conduct conviction, arguing
that the district court abused its discretion by denying his motion to withdraw his guilty
plea before sentencing. We affirm. FACTS
From 2008 to 2012, appellant Clemente Ramirez-Diaz lived with his cousin and his
cousin’s family. In December 2014, officers received a report that Ramirez-Diaz sexually
assaulted his cousin’s juvenile daughter. The victim reported that in the spring of 2009 or
2010, Ramirez-Diaz sexually assaulted her approximately ten times. The victim reported
that Ramirez-Diaz fondled her on and near her bare genitals, made her stroke his bare penis
with her hand, and penetrated her vagina with his penis. On May 7, 2015, a complaint was
filed charging Ramirez-Diaz with first-degree criminal sexual conduct.
On August 3, 2015, Ramirez-Diaz appeared for his jury trial, but decided to plead
guilty to first-degree criminal sexual conduct. At sentencing on September 14, 2015,
Ramirez-Diaz requested to withdraw his guilty plea, claiming that his plea was invalid
because his attorneys coerced him into pleading guilty and failed to advise him that his
guilty plea would result in his deportation.
Following an evidentiary hearing, the district court denied Ramirez-Diaz’s motion
to withdraw his guilty plea, concluding that plea withdrawal was not necessary to correct
a manifest injustice nor was it fair and just to allow Ramirez-Diaz to withdraw his plea.
At sentencing, Ramirez-Diaz’s attorney argued for a downward durational
departure. The district court found that no mitigating circumstances existed to support a
departure and sentenced Ramirez-Diaz to the presumptive sentence of 144 months in prison
and a ten-year conditional-release term. This appeal follows.
2 DECISION
Ramirez-Diaz argues that the district court abused its discretion by denying his
motion to withdraw his guilty plea before sentencing because it was fair and just to do so.
A district court must allow withdrawal of a guilty plea at any time when “necessary
to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A district court may
allow a defendant to withdraw a guilty plea “before sentenc[ing] if it is fair and just to do
so.” Id., subd. 2. Under the fair-and-just standard, a district court considers two factors:
“(1) the reasons a defendant advances to support withdrawal and (2) [any] prejudice
granting the motion would cause the [s]tate given reliance on the plea.” State v. Raleigh,
778 N.W.2d 90, 97 (Minn. 2010) (citing Minn. R. Crim. P. 15.05, subd. 2).
While the fair-and-just standard “is less demanding than the manifest injustice
standard,” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007), a defendant does not have
an absolute right to withdraw a plea before sentencing, Kim v. State, 434 N.W.2d 263, 266
(Minn. 1989), and may not withdraw a guilty plea “for simply any reason.” State v.
Farnsworth, 738 N.W.2d 364, 372 (Minn. 2007). The burden is on the defendant to show
the reasons entitling him to withdrawal of his guilty plea. Kim, 434 N.W.2d at 266. The
district court’s decision to deny a motion to withdraw a guilty plea under the fair-and-just
standard is reviewed for an abuse of discretion and will be reversed only in the “rare case.”
Raleigh, 778 N.W.2d at 97.
Reasons to support withdrawal
Ramirez-Diaz first argues that it was fair and just to allow him to withdraw his guilty
plea because he asserted his innocence. Ramirez-Diaz asserted his innocence several times
3 after pleading guilty. Following the guilty plea, the district court ordered a presentence
investigation (PSI) and a sex-offender evaluation. During the PSI, Ramirez-Diaz denied
that the sexual abuse occurred, claiming that the victim falsely reported because she was
mad at him for forbidding her from having sexual contact with boys. He similarly denied
the sexual abuse during the sex-offender evaluation. And in the affidavit supporting his
motion to withdraw his guilty plea, Ramirez-Diaz again asserted his innocence.
But when Ramirez-Diaz pleaded guilty, he agreed that he was pleading guilty
because he was guilty. Additionally, when establishing the factual basis to support his
guilty plea, Ramirez-Diaz admitted that he penetrated the victim’s vagina with his tongue.
This act is not referenced in the complaint. The district court found that Ramirez-Diaz’s
guilty plea was accurate because there was no disagreement about the factual basis.
Ramirez-Diaz does not now challenge the accuracy of the factual basis. Thus, while
Ramirez-Diaz asserted his innocence after he pleaded guilty, he has not challenged the
factual basis supporting his guilty plea, which establishes that he committed first-degree
criminal-sexual conduct.
Ramirez-Diaz also argues that it was fair and just to allow him to withdraw his guilty
plea because the district court was impermissibly involved in plea negotiations. Ramirez-
Diaz did not raise this claim when he moved to withdraw his guilty plea. See Roby v. State,
547 N.W.2d 354, 357 (Minn. 1996) (stating that an appellate court will not consider matters
not argued to and considered by the district court). Moreover, there is nothing in the record
to support this assertion.
4 During the evidentiary hearing on Ramirez-Diaz’s motion to withdraw his guilty
plea, one of his attorneys testified that on the day of Ramirez-Diaz’s jury trial she met with
the prosecutor and district court to negotiate a plea and reached an agreement that could
result in a shorter sentence. She communicated the agreement to Ramirez-Diaz, who
wanted to think about the offer. Ramirez-Diaz’s attorney left to attend to a different matter,
and his other attorney took over representation. When Ramirez-Diaz pleaded guilty, it was
a straight plea. He indicated that he understood that there was no offer from the state. And
the district court noted on its referral form to probation for the PSI that Ramirez-Diaz
entered a straight plea and that the district court was considering a downward durational
departure.
Ramirez-Diaz argues that the record shows that the district court met with the parties
to discuss “possible pleas” and reached an agreement that involved the district court’s
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0427
State of Minnesota, Respondent,
vs.
Clemente Ramirez-Diaz, Appellant
Filed January 17, 2016 Affirmed Worke, Judge
Hennepin County District Court File No. 27-CR-15-12429
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, Lydia Villalva Lijo, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges his first-degree criminal-sexual-conduct conviction, arguing
that the district court abused its discretion by denying his motion to withdraw his guilty
plea before sentencing. We affirm. FACTS
From 2008 to 2012, appellant Clemente Ramirez-Diaz lived with his cousin and his
cousin’s family. In December 2014, officers received a report that Ramirez-Diaz sexually
assaulted his cousin’s juvenile daughter. The victim reported that in the spring of 2009 or
2010, Ramirez-Diaz sexually assaulted her approximately ten times. The victim reported
that Ramirez-Diaz fondled her on and near her bare genitals, made her stroke his bare penis
with her hand, and penetrated her vagina with his penis. On May 7, 2015, a complaint was
filed charging Ramirez-Diaz with first-degree criminal sexual conduct.
On August 3, 2015, Ramirez-Diaz appeared for his jury trial, but decided to plead
guilty to first-degree criminal sexual conduct. At sentencing on September 14, 2015,
Ramirez-Diaz requested to withdraw his guilty plea, claiming that his plea was invalid
because his attorneys coerced him into pleading guilty and failed to advise him that his
guilty plea would result in his deportation.
Following an evidentiary hearing, the district court denied Ramirez-Diaz’s motion
to withdraw his guilty plea, concluding that plea withdrawal was not necessary to correct
a manifest injustice nor was it fair and just to allow Ramirez-Diaz to withdraw his plea.
At sentencing, Ramirez-Diaz’s attorney argued for a downward durational
departure. The district court found that no mitigating circumstances existed to support a
departure and sentenced Ramirez-Diaz to the presumptive sentence of 144 months in prison
and a ten-year conditional-release term. This appeal follows.
2 DECISION
Ramirez-Diaz argues that the district court abused its discretion by denying his
motion to withdraw his guilty plea before sentencing because it was fair and just to do so.
A district court must allow withdrawal of a guilty plea at any time when “necessary
to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A district court may
allow a defendant to withdraw a guilty plea “before sentenc[ing] if it is fair and just to do
so.” Id., subd. 2. Under the fair-and-just standard, a district court considers two factors:
“(1) the reasons a defendant advances to support withdrawal and (2) [any] prejudice
granting the motion would cause the [s]tate given reliance on the plea.” State v. Raleigh,
778 N.W.2d 90, 97 (Minn. 2010) (citing Minn. R. Crim. P. 15.05, subd. 2).
While the fair-and-just standard “is less demanding than the manifest injustice
standard,” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007), a defendant does not have
an absolute right to withdraw a plea before sentencing, Kim v. State, 434 N.W.2d 263, 266
(Minn. 1989), and may not withdraw a guilty plea “for simply any reason.” State v.
Farnsworth, 738 N.W.2d 364, 372 (Minn. 2007). The burden is on the defendant to show
the reasons entitling him to withdrawal of his guilty plea. Kim, 434 N.W.2d at 266. The
district court’s decision to deny a motion to withdraw a guilty plea under the fair-and-just
standard is reviewed for an abuse of discretion and will be reversed only in the “rare case.”
Raleigh, 778 N.W.2d at 97.
Reasons to support withdrawal
Ramirez-Diaz first argues that it was fair and just to allow him to withdraw his guilty
plea because he asserted his innocence. Ramirez-Diaz asserted his innocence several times
3 after pleading guilty. Following the guilty plea, the district court ordered a presentence
investigation (PSI) and a sex-offender evaluation. During the PSI, Ramirez-Diaz denied
that the sexual abuse occurred, claiming that the victim falsely reported because she was
mad at him for forbidding her from having sexual contact with boys. He similarly denied
the sexual abuse during the sex-offender evaluation. And in the affidavit supporting his
motion to withdraw his guilty plea, Ramirez-Diaz again asserted his innocence.
But when Ramirez-Diaz pleaded guilty, he agreed that he was pleading guilty
because he was guilty. Additionally, when establishing the factual basis to support his
guilty plea, Ramirez-Diaz admitted that he penetrated the victim’s vagina with his tongue.
This act is not referenced in the complaint. The district court found that Ramirez-Diaz’s
guilty plea was accurate because there was no disagreement about the factual basis.
Ramirez-Diaz does not now challenge the accuracy of the factual basis. Thus, while
Ramirez-Diaz asserted his innocence after he pleaded guilty, he has not challenged the
factual basis supporting his guilty plea, which establishes that he committed first-degree
criminal-sexual conduct.
Ramirez-Diaz also argues that it was fair and just to allow him to withdraw his guilty
plea because the district court was impermissibly involved in plea negotiations. Ramirez-
Diaz did not raise this claim when he moved to withdraw his guilty plea. See Roby v. State,
547 N.W.2d 354, 357 (Minn. 1996) (stating that an appellate court will not consider matters
not argued to and considered by the district court). Moreover, there is nothing in the record
to support this assertion.
4 During the evidentiary hearing on Ramirez-Diaz’s motion to withdraw his guilty
plea, one of his attorneys testified that on the day of Ramirez-Diaz’s jury trial she met with
the prosecutor and district court to negotiate a plea and reached an agreement that could
result in a shorter sentence. She communicated the agreement to Ramirez-Diaz, who
wanted to think about the offer. Ramirez-Diaz’s attorney left to attend to a different matter,
and his other attorney took over representation. When Ramirez-Diaz pleaded guilty, it was
a straight plea. He indicated that he understood that there was no offer from the state. And
the district court noted on its referral form to probation for the PSI that Ramirez-Diaz
entered a straight plea and that the district court was considering a downward durational
departure.
Ramirez-Diaz argues that the record shows that the district court met with the parties
to discuss “possible pleas” and reached an agreement that involved the district court’s
consideration of a downward departure upon a straight plea. A district court may not
“usurp the responsibility of counsel or . . . improperly inject itself into plea negotiations.”
State v. Anyanwu, 681 N.W.2d 411, 414 (Minn. App. 2004). But a district court’s
involvement in a plea negotiation is not per se improper because a district court “has a
delicate role in a plea negotiation and necessarily plays a part in any negotiated guilty plea.”
Id. at 415. The record shows only that Ramirez-Diaz pleaded guilty and that the district
court agreed to consider a downward durational departure. The district court’s involvement
was not improper and does not support Ramirez-Diaz’s argument that it was fair and just
to allow him to withdraw his guilty plea.
5 Ramirez-Diaz next argues that it was also fair and just to allow him to withdraw his
guilty plea because he was represented by different attorneys. He presents this argument
without advancing an ineffective-assistance-of-counsel claim. Ramirez-Diaz first claims
that when he pleaded guilty he was represented by his immigration attorney who convinced
him that if he pleaded guilty he would not be deported because he was married to a United
States citizen. Second, he claims that his attorneys failed to fully communicate the plea
offer to him. Third, he claims that his attorneys failed to advise him that he was subject to
a ten-year conditional-release term. Finally, he claims that his sentencing attorney was
unprepared.
At the outset, Ramirez-Diaz fails to provide any support for his assertion that he
should be allowed to withdraw his guilty plea because of a change in representation at his
guilty-plea hearing. The two attorneys worked together, and each filed a certificate of
representation. Moreover, the record does not support Ramirez-Diaz’s claims.
Ramirez-Diaz argues that one of his attorneys advised him to get married in order
to avoid deportation. At the evidentiary hearing on his motion to withdraw his guilty plea,
Ramirez-Diaz testified that he met with his attorney on April 30, 2015, after hearing that
detectives wanted to talk to him. Ramirez-Diaz testified that at this meeting, his attorney
told him that if he got married to a U.S. citizen he would go to jail for no more than two
months. Another witness at the evidentiary hearing similarly testified that she
accompanied Ramirez-Diaz to this April 30 meeting and heard the attorney advise
Ramirez-Diaz to get married to avoid deportation. But on cross-examination, Ramirez-
Diaz admitted that on April 30, he did not know why the detectives wanted to talk to him.
6 And his witness admitted that the meeting was to discuss immigration, and criminal issues
were not discussed. Thus, as the district court found, the discussion about marriage was
irrelevant to the validity of Ramirez-Diaz’s guilty plea because it took place during a
meeting that did not concern the criminal matter or guilty plea.
Further, Ramirez-Diaz was fully aware that his guilty plea would result in his
deportation. At his evidentiary hearing, Ramirez-Diaz’s attorney testified that she visited
Ramirez-Diaz frequently to prepare for trial and discussed with him the immigration
consequences of pleading guilty. She testified that she advised Ramirez-Diaz that “there
was absolutely no chance he could stay in the United States if he were found guilty of this
charge or pled guilty to this charge.” When Ramirez-Diaz pleaded guilty, he agreed that
he had sufficient time to talk about the immigration consequences with his attorneys and
indicated that he understood that he would be deported and would never be allowed to
return to the United States.
Ramirez-Diaz also claims that his attorneys failed to fully communicate the plea
offer to him. But Ramirez-Diaz’s attorney testified that she communicated the offer to
Ramirez-Diaz and that he wanted to think about it.
Ramirez-Diaz claims that his attorneys failed to advise him that he was subject to a
ten-year conditional-release term. Ramirez-Diaz’s petition to enter his guilty plea
incorrectly stated that he faced a two-year conditional-release term. But Ramirez-Diaz
does not claim that this incorrect statement had anything to do with his decision to plead
guilty. And every document thereafter correctly stated that the conditional-release term is
ten years.
7 Finally, Ramirez-Diaz claims that his sentencing attorney was unprepared. But
sentencing had no bearing on Ramirez-Diaz’s guilty plea.1 The sentencing attorney
indicated that she was prepared to proceed with sentencing and to argue mitigating factors.
Following arguments, the district court found that no mitigating factors supported a
downward durational departure and imposed the presumptive prison sentence, as
recommended by the officer who prepared the PSI. Thus, although the district court denied
Ramirez-Diaz a downward durational departure, his attorney argued for a departure at
sentencing.
Prejudice
Ramirez-Diaz argues that the district court should have allowed him to withdraw
his guilty plea because he moved to withdraw his guilty plea shortly after entering it.
Ramirez-Diaz pleaded guilty on August 3, 2015, and verbally requested to withdraw his
plea on September 14. Ramirez-Diaz may have acted quickly, but this “fact is relevant to
show an absence of prejudicial reliance on his plea by the prosecution.” State v. Abdisalan,
661 N.W.2d 691, 694 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003). The
district court found that the state would be prejudiced by plea withdrawal because the case
involved a child-abuse victim who would suffer if the case started over. A district court
may consider the interests of the victim when considering the prejudice to the state. Kim,
434 N.W.2d at 267.
1 Ramirez-Diaz argues that if we decline to reverse on the plea-withdrawal issue, we should remand for a sentencing hearing wherein he be permitted to argue for a downward departure. Not only did Ramirez-Diaz fail to raise this issue in district court, but he fails to present argument or legal authority supporting a remand. Moreover, the district court permitted his sentencing attorney to argue for a downward departure. 8 Ramirez-Diaz has failed to establish reasons making it fair and just for him to
withdraw his guilty plea. The district court did not abuse its discretion by denying
Ramirez-Diaz’s motion to withdraw his guilty plea.
Affirmed.