State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1050

State of Minnesota,
Respondent,

vs.

Kent Michael Hamre,
Appellant.

Filed May 28, 2019
Affirmed
Worke, Judge

Sherburne County District Court
File No. 71-CR-16-885

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County
Attorney, Elk River, Minnesota (for respondent)

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

Considered and decided by Slieter, Presiding Judge; Worke, Judge; and Kalitowski,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges the district court ’s denial of his presentence motion to
withdraw his guilty plea. Alternatively, he argues that the district court abused its
discretion by denying his motion for a downward dispositional departure. We affirm.
FACTS
On July 5, 2016, appellant Kent Michael Hamre got into an argument with his
roommate, put all of his belongings into his car, and walked to a bar. After having several
drinks, Hamre returned to his car and went to sleep with the keys next to him on the seat.
A police officer found Hamre asleep in his vehicle with the emergency flashers on. Based
on his initial observations, the officer suspected that Hamre was intoxicated. Hamre
admitted that he had been drinking, and took a preliminary breath test which revealed an
alcohol concentration of 0.194. Hamre was placed under arrest and read the implied-
consent advisory. Hamre refused to submit to a chemical test.
Hamre was charged with driving while impaired (DWI)-test refusal, pursuant to
Minn. Stat. § 169A.2 0, subd. 2 (2014), and DWI pursuant to Minn. Stat. § 169A.20,
subd. 1(1) (2014). Hamre was released from custody prior to trial with several conditions.
A conditional-release violation report was filed on July 3, 2017, because Hamre tested
positive for methamphetamine. Additional conditional-release violation reports were filed
because Hamre failed to report for testing in August, September, and October of 2017.
Hamre failed to appear for his conditional-release violation hearing on October 18, 2017.
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On September 25, 2017, Hamre pleaded guilty to the test-refusal charge. While it
was a straight plea, the state indicated that it would dismiss the DWI charge at sentencing.
The district court found that there was a sufficient factual basis to support Ha mre’s guilty
plea, but did not accept the plea at that time. The district court ordered a presentence
investigation (PSI).
In October 2017, Hamre was contacted by someone from community corrections
and incorrectly informed that his PSI was cancelled because he was a mandated prison
commit. Hamre then failed to appear at his sentencing hearing on December 11, 2017.
On February 22, 2018 , Hamre moved to withdraw his guilty plea. Following a
hearing, the district court denied the motion on the record. At sentencing on April 6, 2018,
Hamre moved for downward durational and dispositional departures. The district court
denied Hamre’s motion, adjudicated him guilty of the test-refusal charge, and sentenced
him to a presumptive 62 months in prison. This appeal followed.
D E C I S I O N
Withdrawal of guilty plea
Hamre argues that the district court abused its discretion in denying his motion to
withdraw his guilty plea prior to sentencing. “We review a district court’s decision to deny
a withdrawal motion for abuse of discretion, reversing only in the rare case.” State v.
Raleigh, 778 N.W.2d 90, 97 (Minn. 2010) (quotation omitted). “A district court abuses its
discretion when its decision is based on an erroneous view of the law or is against logic
and the facts in the record.” State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017).
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“A defendant has no absolute right to withdraw a guilty plea after entering it.”
Raleigh, 778 N.W.2d at 93. But a district court may allow plea withdrawal any time before
sentencing if it is “fair and just” to do so. Minn. R. Crim. P. 15.05, subd. 2. A district
court must consider the reasons advanced by a defendant in support of withdrawal, and any
prejudice to the state. Raleigh, 778 N.W.2d at 97. Hamre bears the burden of
demonstrating that withdrawal is warranted; the state bears the burden of demonstrating
prejudice. Id.
Hamre relies on the phone call from community corrections cancelling his PSI to
meet his burden of demonstrating that withdrawal of his guilty plea is fair and just. Hamre
argues that but for the phone call, he would have been more diligent in abiding by the terms
of his conditional release, thus placing him in a better position to move for a sentencing
departure. Hamre pl eaded guilty without an agreement. At that time, both Hamre’s
attorney and the district court emphasized that in pleading guilty he was agreeing to a
lengthy prison term unless his attorney was able to successfully argue for a sentencing
departure, which was not guaranteed. The district court found that the incorrect
information provided by community corrections did not warrant withdrawal of the guilty
plea based on Hamre’s “prior exposure to the criminal justice system.”
While Hamre may have received false information that influenced his decision to
not appear at his original sentencing hearing, the district court did not abuse its discretion
by denying his withdrawal motion based upon the entire context of his plea. See State v.
Abdisalan, 661 N.W.2d 691, 695 (Minn. App. 2003) (stating “the entire context” in which
the plea occurred, “as demonstrated by the record,” must be considered in determining
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whether the district court abused its discretion in denying a plea -withdrawal motion),
review denied (Minn. Aug. 19, 2003). During his plea hearing, Hamre acknowledged that
he likely faced a lengthy prison sentence. When he received the call from community
corrections, he never reached out to his attorney or the district court for clarification or
confirmation. He did not even appear at his sentencing hearing.
The district court did not abuse its discretion by denying the motion to withdraw on
the basis that the phone call from community corrections, standing alone and in light of
Hamre’s failure to seek clarification or attend his hearings, did not satisfy his burden of
demonstrating that withdrawal was fair and just under the circumstances. Because the
district court did not abuse its discretion in finding that Hamre failed to meet his burden,
we do not need to consider the state’s prejudice. See Raleigh, 778 N.W.2d at 98 (stating
that even if there was no prejudice to the state, denial of the withdrawal motion was not an
abuse of discretion where the defendant failed to meet his burden of demonstrating t hat
withdrawal was fair and just).
Finally, Hamre argues that this court should recognize an absolute right to withdraw
a guilty plea prior to acceptance. However, a recent opinion from this court disposes of
Hamre’s argument. In State v. Nicholas, this court held that “once a defendant has put
formally before the court a valid guilty plea, he has entered it and has no absolute right to
withdraw it.” 924 N.W.2d 286, 292 (Minn. App. 2019) (quotation omitted), pet. for review
filed (Minn. Mar. 13, 2019). Therefore, Hamre did not possess an absolute right to
withdraw his plea prior to its acceptance by the district court.

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Sentencing departure
Hamre argues that the district court abused its discretion in denying his motion for
a downward dispositional departure because he was particularly amenable to probation.
“This court will not generally review a district court’s exercise of its discretion to sentence
a defendant when the sentence imposed is within the presumptive guidelines range.” State
v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010).
Only in a “rare” case will an appellate court reverse a sentencing court’s refusal to depart.
State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
A defendant’s particular amenability to probation is a mitigating factor that may
support a downward departure from a presumptive sentence. Minn. Sent. Guidelines
2.D.3.a.7 (2014). “The requirement that a defendant be ‘particularly’ am enable to
probation ensures that the defendant’s amenability to probation distinguishes the defendant
from most others and truly presents the substantial and compelling circumstances necessary
to justify a departure.” Minn. Sent. Guidelines cmt. 2.D.303 (2014).
Hamre argues that the district court abused its discretion by not finding him
particularly amenable to probation under the Trog 1 factors, but this assertion is not
supported by the record. Hamre was arrested on July 6, 2016, and placed on conditional
release pending trial. On July 3, 2017, a pretrial violation report was filed because Hamre
tested positive for, and admitted to taking, methamphetamine. Additional pretrial violation

1 The factors that a district court considers in determining whether a defendant is
particularly amenable to probation include: “the defendant’s age, his prior record, his
remorse, his cooperation, his attitude while in court, and the support of friends and/or
family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).
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reports were filed because Hamre failed to appear for random drug-and-alcohol testing
three times. Hamre also failed to appear at the pretrial violation hearing on October 18,
2017. Finally, Hamre was still on probation for a prior felony DWI conviction when he
was arrested in the present matter. The record supports the district court’s decision to deny
a downward departure because Hamre failed to show that he is particularly amenable to
probation.
Affirmed.