This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A13-2333
State of Minnesota, Respondent,
vs.
Kai Yang, Appellant.
Filed October 14, 2014 Affirmed Halbrooks, Judge
Ramsey County District Court File No. 62-CR-12-7941
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Chelsie Willett, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Chutich, Presiding Judge; Halbrooks, Judge; and Ross,
Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
On appeal from his conviction of third-degree criminal sexual conduct, appellant
argues that (1) the district court erred by denying appellant’s presentence motion to withdraw his guilty plea, (2) appellant was denied effective assistance of counsel because
his defense counsel had a conflict of interest when arguing the motion to withdraw the
guilty plea, and (3) the district court abused its discretion by denying appellant’s motion
for a downward dispositional departure. We affirm.
FACTS
Appellant Kai Yang entered a guilty plea to one count of third-degree criminal
sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (2012). During the plea
hearing, Yang’s counsel advised him of the rights he was waiving by entering the guilty
plea and confirmed that Yang understood that he would be bound by the terms of the
agreement. Yang stated that no one promised him anything other than the terms of the
agreement as stated in the plea petition and that no one forced or bribed him to plead
guilty. Yang’s counsel informed Yang on the record at the plea hearing that he would be
subject to a ten-year conditional-release term and that he would be required to register as
a sex offender for ten years. As part of the plea, the parties agreed that they would argue
the terms of the sentence at the sentencing hearing.
Prior to sentencing, Yang’s counsel informed the district court and the state that
Yang wished to withdraw his guilty plea, stating that Yang was adamant that he was not
guilty, he felt he did not understand the full consequences of pleading guilty, and he felt
he had been pressured into accepting the plea agreement. The district court continued the
sentencing hearing so that the parties could submit memoranda on the motion to
withdraw the guilty plea.
2 When the parties appeared for sentencing and to be heard on the motion to
withdraw the plea, Yang’s counsel argued for the motion to withdraw the plea. Yang’s
counsel stated that Yang’s family members had coerced him into pleading guilty and that
it was possible that Yang, a Hmong speaker, did not understand the full consequences of
pleading guilty because of the language barrier. Yang had proceeded through the legal
process with the assistance of an interpreter, but his counsel stated that he found it
difficult to explain the legal system to Yang in his own language, and it was possible that
Yang did not agree to the plea. Yang’s counsel also submitted an affidavit from Yang in
support of his motion to withdraw his guilty plea. In the affidavit, Yang stated that he
made the plea without knowing all of the possible consequences, he did not believe that
he was guilty of the crime, and his relatives pressured him into taking the plea. The state
argued that Yang’s counsel went through the plea petition with Yang in detail at the plea
hearing, he had ample time to discuss his options with his attorney, he acknowledged on
the record that he understood he would be bound by the terms of the plea petition, and he
affirmed that no one forced him to accept the offer.
The district court found that Yang entered a “counseled plea” and that he had
many opportunities to speak with his attorney. The district court stated that it allowed a
recess during the plea hearing so that Yang could seek clarification from his counsel.
The district court considered Yang’s argument that his family coerced him to enter the
guilty plea but also acknowledged that Yang stated at the plea hearing that no one had
forced or coerced him into pleading guilty. The district court found that Yang did not
meet his burden to withdraw his plea under the manifest-injustice standard.
3 Next, the district court read into the record the fair-and-just standard of Minn. R.
Crim. P. 15.05, which governs plea withdrawals, and acknowledged that it must give due
consideration to (1) the reasons advanced by Yang and (2) potential prejudice to the state
if the district court granted the plea-withdrawal motion. But the district court did not
explicitly apply the fair-and-just standard to the motion. The district court denied the
motion to withdraw the guilty plea and proceeded to sentencing.
Yang then requested a downward dispositional departure. Yang argued that (1) he
provided financial support to his family, (2) he would do well in treatment, (3) he had
little criminal history, and (4) he would remain law-abiding. The state argued that
Yang’s reluctance to take responsibility for his actions, as well as the recommendation in
the presentence investigation (PSI) report, weighed against a downward departure. The
district court denied the motion for the downward dispositional departure, stating that
Yang’s actions indicated that he would not do well in treatment and that he was angry
and posed a safety risk to the victim and their children.
The district court sentenced Yang to the custody of the commissioner of
corrections for a term of 48 months, credit for 24 days served, followed by a ten-year
conditional release, and lifetime predatory-offender registration. This appeal follows.
DECISION
I.
The first issue Yang raises on appeal is whether the district court abused its
discretion by denying his presentence motion to withdraw his guilty plea without giving
due consideration under the fair-and-just standard to the reasons advanced by Yang in
4 support of the motion. A defendant does not have an absolute right to withdraw a guilty
plea. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). Withdrawal is appropriate in
two circumstances. First, a district court must allow a defendant to withdraw his plea at
any time if “withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim.
P. 15.05, subd. 1. Second, a district court may permit withdrawal before sentencing “if it
is fair and just to do so.” Minn. R. Crim. P. 15.05, subd. 2; State v. Raleigh, 778 N.W.2d
90, 93 (Minn. 2010). In his motion to withdraw, Yang did not indicate whether he sought
withdrawal under the manifest-injustice or the fair-and-just standard. But Yang brought
his motion to withdraw prior to sentencing; so on appeal he argues that the district court
erred in only considering the manifest-injustice standard and not giving due consideration
to whether it would be “fair and just” to permit him to withdraw his plea.
A. Manifest-Injustice Standard
While Yang raises the issue under the fair-and-just standard, he first argues that
his plea was invalid because it was involuntary and unintelligent. If a plea is invalid, the
manifest-injustice standard requires withdrawal. Minn. R. Crim. P. 15.05, subd. 1; see
also Theis, 742 N.W.2d at 646 (examining manifest injustice as a threshold matter
although the appellant only raised the fair-and-just standard on appeal). We review the
denial of a motion to withdraw a guilty plea under the manifest-injustice standard
de novo as a question of law. Raleigh, 778 N.W.2d at 94. There are three requirements
for a valid plea: “it must be accurate, voluntary and intelligent.” Theis, 742 N.W.2d at
646 (quoting State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994)).
5 Yang argues that his family coerced him into pleading guilty by giving him an
ultimatum: if he did not accept the plea, his family would stop providing financial
assistance that Yang needed to pay his attorney. To find a plea to be involuntary due to
coercion, the record must unequivocally support a finding that the coercion resulted in
“overbearing the will of the defendant.” Sykes v. State, 578 N.W.2d 807, 813 (Minn.
App. 1998), review denied (Minn. July 16, 1998). The only statements in the record that
support Yang’s coercion argument are his own statements in his affidavit and the
arguments advanced by his counsel. We conclude that the record does not support a
conclusion that Yang’s will was overborne by family pressures.
Next, Yang argues his plea was not intelligent because he did not fully understand
the terms of his plea agreement. “The intelligence requirement ensures that a defendant
understands the charges against him, the rights he is waiving, and the consequences of his
plea.” Raleigh, 778 N.W.2d at 96 (citing State v. Trott, 338 N.W.2d 248, 251 (Minn.
1983)). “‘Consequences’ refers to a plea’s direct consequences, namely the maximum
sentence and fine.” Id. If promises regarding the consequences a defendant will face by
pleading guilty induce a plea and those promises cannot be fulfilled, then the plea is
invalid. See State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000) (“Inducement of a
guilty plea by promises that cannot be fulfilled invalidates the plea . . . .”).
Yang supports his unintelligent-plea argument in his affidavit to the district court
by stating that he did not learn that he would be imprisoned for 48 months until he
participated in the PSI. But the record amply supports the conclusion that Yang entered
an intelligent plea. Yang signed the plea petition, which states that the maximum penalty
6 for the crime is imprisonment for 15 years and requires predatory registration and a
period of conditional release. The plea petition does not guarantee a probationary
sentence or state that the parties have agreed to particular terms of the sentence. Further,
during the plea hearing, the parties stated that they would argue the sentence at the
sentencing hearing.
The only indication in the record that his attorney promised him a probationary
sentence is from Yang’s own statements in the PSI and in his affidavit. The signed plea
petition negates Yang’s argument that he did not understand the consequences of his plea.
Because of the lack of support in the record for coercion and because the plea petition
supports the finding that the plea was intelligent, we conclude that Yang has not shown
that his plea was involuntary or unintelligent under the manifest-injustice standard.
B. Fair-and-Just Standard
Yang argues that the district court erroneously applied only the manifest-injustice
standard and did not consider his motion to withdraw the plea under the fair-and-just
standard. “[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 265, 266 (Minn. 1989)). The fair-and-just standard
“requires district courts to give ‘due consideration’ to two factors: (1) the reasons a
defendant advances to support withdrawal and (2) prejudice granting the motion would
cause the [s]tate given reliance on the plea.” Raleigh, 778 N.W.2d at 97 (quoting Kim,
7 434 N.W.2d at 266). A defendant bears the burden of advancing fair-and-just reasons to
support withdrawal. State v. Lopez, 794 N.W.2d 379, 382 (Minn. App. 2011). In
addition, the fair-and-just reasons must be supported by the record. Raleigh, 778 N.W.2d
at 97. “[D]efendants may not withdraw their guilty pleas for simply any reason before a
sentence is imposed.” State v. Farnsworth, 738 N.W.2d 364, 372 (Minn. 2007). The
district court abuses its discretion if it fails to engage in the correct analysis under the
fair-and-just standard. State v. Cubas, 838 N.W.2d 220, 224 (Minn. App. 2013), review
denied (Minn. Dec. 31, 2013).
First, we review the district court’s consideration of Yang’s reasons for
withdrawal. Raleigh, 778 N.W.2d at 97. Yang advanced the following arguments in his
affidavit as well as through his counsel at the sentencing hearing: (1) he made the plea
without knowing all of the possible consequences because he did not know that he would
have to register for life as a sex offender and he believed he would receive a probationary
sentence; (2) he pleaded guilty because he felt pressure from his relatives to take the plea;
and (3) he does not believe that he is guilty of the crime.
In denying the motion to withdraw, the district court found that Yang made a
counseled plea, citing the many opportunities that he had to speak with his attorney and
the long and thorough plea hearing. Yang argues that his attorney failed to advise him of
the possible consequence of a prison sentence. But the plea petition demonstrates that
Yang knew that a probationary sentence was not guaranteed. The Minnesota Supreme
Court has concluded that an appellant’s “claim that he was promised probation by
defense counsel was negated by the petition he signed, by the statements he made at the
8 time he entered his plea . . . . Clearly, therefore, the [district] court was justified in
finding that no such promise had been made.” Trott, 338 N.W.2d at 252. Here, we
recognize the difficulties imposed by the language barrier between Yang and his attorney,
but the record does not support a conclusion that the district court abused its discretion in
finding that Yang knew the possible consequences of the plea. See Raleigh, 778 N.W.2d
at 97 (noting that the appellant failed to provide evidentiary support for his fair-and-just
reasons for withdrawal and denying the motion to withdraw the guilty plea).
The district court also considered Yang’s argument that his family members
coerced him into pleading guilty. The district court rejected Yang’s coercion argument,
finding that Yang stated during his plea hearing that he had not been forced or coerced
into entering the guilty plea. The only indication in the record to support the argument
that Yang’s family coerced him is his own affidavit and his counsel’s arguments. Yang
contradicted his affidavit when he stated during the plea hearing that he had not been
forced or coerced into pleading guilty. Therefore, the district court did not abuse its
discretion in finding that Yang’s coercion argument provided no fair-and-just basis for
withdrawal. See id. (noting that the reasons must be supported by the record).
Lastly, the district court considered Yang’s argument that his plea should be
withdrawn because he does not believe that he is guilty. The district court acknowledged
that Yang had been reluctant to accept his role in the case, but it found that he ultimately
admitted to a sufficient factual basis in the plea hearing to establish the elements of third-
degree criminal sexual conduct. Thus, the district court had a sufficient basis to find, in
its discretion, that this was not a fair-and-just reason to warrant withdrawal.
9 Under the second prong of the fair-and-just standard, we review the district court’s
assessment of potential prejudice to the state if the district court granted the plea-
withdrawal motion. Id. at 98. The district court acknowledged that “it would be a
manifest injustice to the state if the state in fact were required to reconstruct the case and
to go forward with the trial.” The district court reasoned that the case was almost a year
old and the delays were not caused by the state’s actions. Even though these comments
were made while the district court discussed the manifest-injustice standard, this
reasoning also applies to the second prong of the fair-and-just standard. In addition, the
district court does not have to consider the second prong if the defendant fails to present
any credible reasons for fair-and-just withdrawal. Id. After discussing the trauma
experienced by the victim and Yang’s prior convictions, the district court denied the
motion to withdraw the plea and moved forward with sentencing.
While the district court did not explicitly consider Yang’s reasons for withdrawal
under the fair-and-just standard, it did read the fair-and-just standard subdivision of the
rule, Minn. R. Crim. P. 15.05, subd. 2, and gave due consideration to Yang’s reasons for
withdrawal. The plea-hearing transcript is unclear because the district court uses the term
“manifest injustice” instead of “fair and just” after reading the fair-and-just rule. It is
possible that the district court misspoke when it referenced “manifest injustice” after
turning to the fair-and-just standard. Regardless, we conclude that the district court gave
due consideration to Yang’s reasons for withdrawal under both standards. Despite the
fact that the district court did not explicitly go through Yang’s reasons for withdrawal or
the prejudice to the state a second time under the fair-and-just standard, the record
10 supports the conclusion that the district court engaged in a proper legal analysis by giving
due consideration to Yang’s reasons for withdrawal and any potential prejudice to the
state. Therefore we conclude that the district court properly exercised its discretion by
denying Yang’s motion to withdraw his guilty plea.
II.
The second issue is whether Yang’s attorney provided ineffective assistance of
counsel due to a conflict of interest while arguing Yang’s motion to withdraw his guilty
plea at the sentencing hearing. Ineffective-assistance-of-counsel claims involve mixed
questions of law and fact, which we review de novo. Carney v. State, 692 N.W.2d 888,
890-91 (Minn. 2005).
The Sixth Amendment entitles a criminal defendant to effective assistance of
counsel, including the right to “representation that is free from conflicts of interest.”
Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981). “A lawyer’s
performance is deficient if he represents a client despite having a conflict of interest.”
State v. Paige, 765 N.W.2d 134, 140 (Minn. App. 2009). A conflict of interest arises if
“there is a significant risk that the representation of one or more clients will be materially
limited . . . by a personal interest of the lawyer.” Minn. R. Prof. Conduct 1.7(a)(2). An
appellant’s burden in advancing a claim of ineffective assistance of counsel due to a
conflict of interest “depends on whether and to what extent the alleged conflict was
brought to the [district] court’s attention.” Cooper v. State, 565 N.W.2d 27, 32 (Minn.
App. 1997), review denied (Minn. Aug. 5, 1997). An appellant who does not raise the
conflict-of-interest issue at the district court “must demonstrate that defense counsel
11 ‘actively represented conflicting interests’ and this conflict ‘adversely affected [the]
lawyer’s performance.’” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100
S. Ct. 1708, 1718, 1719 (1980)).
Yang did not raise the issue of ineffective assistance of counsel or conflict of
interest at the district court. Thus, Yang must show that the defense counsel “actively
represented conflicting interests” and the conflict “adversely affected” his performance.
Yang argues that his counsel had a conflict of interest in his representation when he
sought to withdraw his guilty plea due to his attorney’s misleading statements regarding a
probationary sentence. Yang argues that his counsel had a conflict of interest between
advocating for Yang’s interests (i.e., that he misled Yang regarding the sentence that
would be imposed) and for his own personal interests (i.e., that his representation was not
deficient). He argues that this conflict of interest “adversely affected” his representation
by undermining his coercion and unintelligent-plea arguments because his counsel denied
that he coerced Yang or promised him a probationary sentence.
In Butala v. State, the Minnesota Supreme Court affirmed the denial of a plea-
withdrawal motion even though the appellant’s attorneys “declined to speak in support of
the motion” at the sentencing hearing. 664 N.W.2d 333, 337 (Minn. 2003). The supreme
court acknowledged that “the better procedure would have been to afford substitute
counsel for purposes of making the motion” but concluded that the district court gave the
appellant’s motion serious consideration and therefore affirmed the district court’s
determination. Id. at 341.
12 Here, Yang’s counsel did not argue that he gave Yang misleading information, but
he did advance the family-coercion argument and argued that Yang did not understand
the full consequences of his guilty plea. His counsel also submitted Yang’s affidavit to
the court, which stated his attorney had informed him that he could receive a
probationary sentence. Yang argues that his counsel phrased his affidavit in such a way
so as not to admit ineffective assistance of counsel. But the record demonstrates that
Yang signed the affidavit, swearing to its truth, thus diminishing the power of this
argument. Like in Butala, the better procedure here may have been for his counsel to
step aside and allow Yang to seek substitute counsel to argue the ineffective-assistance-
of-counsel claim, but this is not dispositive of the issue. Yang’s counsel advocated on his
behalf and thoroughly argued the motion at the sentencing hearing. And the district court
gave serious consideration to the reasons advanced by Yang for plea withdrawal.
In his pro se supplemental brief, Yang contends for the first time that his attorney
told him to lie and say “yes” to all the questions in the plea petition and during the plea
hearing. We find no support for this assertion in the record. If true, this contention
would raise a concern since “advising a client to lie under oath is a serious offense.” In
re Disciplinary Action Against Knutson, 711 N.W.2d 807, 810 (Minn. 2006). But a
party’s “sworn duty to tell the truth, as directed by the oath, is too fundamental and
obvious an obligation to be dismissed by contrary advice to violate it, even if suggested
or encouraged by her attorney.” Anderson v. State, 746 N.W.2d 901, 907 (Minn. App.
2008). While we reiterate that this allegation is unsupported, even if true, Yang swore to
tell the truth during his plea hearing. And that oath supersedes any advice he may have
13 received from his attorney. Yang has not shown that his counsel actively represented
conflicting interests and that any conflict adversely affected his representation.
III.
The final issue on appeal is whether the district court abused its discretion by
denying Yang’s motion for a downward dispositional departure without deliberately
considering the factors for and against departure. We review a district court’s refusal to
depart from the sentencing guidelines for an abuse of discretion. State v. Bertsch, 707
N.W.2d 660, 668 (Minn. 2006).
“Departures from the presumptive sentence are justified only when substantial and
compelling circumstances are present in the record.” State v. Jackson, 749 N.W.2d 353,
360 (Minn. 2008). We affirm imposition of a presumptive sentence when “the record
shows [that] the sentencing court carefully evaluated all the testimony and information
presented before making a determination.” State v. Johnson, 831 N.W.2d 917, 925
(Minn. App. 2013) (quotation omitted), review denied (Minn. Sept. 17, 2013). We do not
usually interfere with a sentence falling within the presumptive guidelines “even if there
are grounds that would justify departure.” Bertsch, 707 N.W.2d at 668 (quotation
omitted). “It would be a rare case which would warrant reversal of the refusal to depart.”
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
The appropriateness of a dispositional departure “depends on the defendant as an
individual and on whether the presumptive sentence would be best for him and for
society.” State v. Heywood, 338 N.W.2d 243, 244 (Minn. 1983). The district court must
“deliberately consider[]” the factors that the defendant offers in support of a motion for a
14 downward dispositional departure before rejecting the motion. State v. Curtiss, 353
N.W.2d 262, 264 (Minn. App. 1984). But when the district court imposes a presumptive
sentence, it is not required to explain its reasons. Johnson, 831 N.W.2d at 925. Further,
reversal is not warranted merely because we may have reached a different conclusion.
State v. Case, 350 N.W.2d 473, 476 (Minn. App. 1984).
Here, Yang argued at the sentencing hearing for a downward dispositional
departure. He contended that his job enabled him to pay child support and financially
support the victim and that if he were incarcerated, he would lose his job. He also argued
that he would be a good candidate for rehabilitative programs. Yang submitted two
recommendations to the district court demonstrating that he is well-liked by his co-
workers. Lastly, Yang argued that he has little criminal history and he would continue to
be law-abiding on probation. The state argued for a sentence consistent with the
recommendation by probation in the PSI and expressed concern based on Yang’s
reluctance to take responsibility for his actions. The district court asked Yang if he
wanted to make a personal statement to the court, and Yang stated that the victim
committed adultery, stole his money, and threatened him.
The district court considered the arguments advanced by the parties, stating that a
current order for protection against Yang indicates threatening and stalking behavior and
that Yang’s statement to the district court did not help him. The district court found that
he had not given the district court “any substantial and mitigating circumstances” upon
which to base a departure. See State v. Van Ruler, 378 N.W.2d 77, 80 (Minn. App. 1985)
(stating that the district court has discretion to depart when substantial and compelling
15 circumstances are present). The district court denied the motion for a downward
dispositional departure.
Because the district court deliberately considered the factors presented by Yang
before its ruling, we affirm the district court’s denial of the motion for a downward
Affirmed.