Micheal Delanie Harris, petitioner, Appellant,

This opinion will be unpublished and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
A18-2005

Micheal Delanie Harris, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 15, 2019
Affirmed
Klaphake, Judge*

Dakota County District Court
File No. 19HA-CR-16-2491

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

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

James C. Backstrom, Dakota County Attorney, Evan W. Frazier, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Slieter, Judge; and
Klaphake, 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
KLAPHAKE, Judge
Appellant challenges the denial of his petition for postconviction relief, arguing that
he should have been permitted to withdraw his guilty plea to second -degree controlled-
substance crime (sale) because, at the time he pleaded guilty, he was also facing a 60-month
sentence on a conviction for a firearm offense that was subsequently vacated; he also argues
that the vacation of that conviction entitled him to reconsideration of his sentence for
second-degree controlled-substance crime (sale). Because the district court did not abuse
its discretion in denying appellant’s motion to withdraw his guilty plea and did not err in
deciding not to reconsider his sentence, we affirm.
D E C I S I O N
In June 2016, when appellant Micheal Delanie Harris was charged with one count
of second-degree controlled-substance crime (sale), his pending district court files included
a guilty plea to the charge of possession of a firearm by an ineligible person resulting from
his possession of a BB gun. In September 2016, he pleaded guilty to the charge of second-
degree controlled -substance crime and to charges of third -degree assault, driving after
revocation, and fifth-degree assault. His criminal-history score (CHS) was then nine; the
presumptive range for second-degree controlled-substance crime was 95-132 months and
the presumptive sentence was 111 months. Appellant’s motion for a downward durational
departure was granted, and he received a sentence of 60 months i n prison, or 54% of the
presumptive sentence.

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In May 2017, appellant’s conviction for possession of a firearm was vacated under
State v. Ha ywood, 886 N.W.2d 485, 48 9 (Minn. 2016) (holding that an air -powered BB
gun is not a firearm under the plain meaning of Minn. Stat. § 609.165). His CHS was
reduced to six and one half, which changed the presumptive range for second -degree
controlled-substance crime to 92-129 months in prison and the presumptive sentence to
109 months in prison. Appellant petitioned for postconviction relief, seeking to withdraw
his guilty plea, and challenges the denial of the petition.
After sentencing, a guilty plea may be withdrawn only if withdrawal is necessary to
correct a manifest injustice, which requires a showing that the plea was invalid, i.e., not
accurate, voluntary, and intelligent . State v. Raleigh , 778 N.W.2d 90, 94 (Minn. 2010).
Whether a plea was invalid is reviewed de novo. Id.
Appellant argues that his guilty plea was not voluntary because he wanted a different
public defender (PD) to be appointed. But , when the district court told appellant th e only
PD availabl e to handle either appellant’s controlled-substance conviction or a recent
conviction for an assault in jail was the PD appellant said he wanted to fire, appellant said
in response, “I just got to stick with [him] then.” The district court asked appellant, “You’re
okay staying with [this PD]?” and appellant answered, “I’ll stay.” The district court
pointed out that the PD’s failure to c ommunicate with appellant since the assault was due
to the fact that appellant “[hadn’t] been able to get phone calls” in jail and was in
segregation. The district court then asked appellant , “[A]t this point you’re okay going
forward with [this PD] . . . if possible, today?” and appellant answered “Yes.” Thus, the

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transcript reflects that appellant voluntarily proceeded on his plea agreement with his
assigned PD.
To argue that his plea was not intelligent, a ppellant relies on State v. Casarez, 203
N.W.2d 406, 408 (Minn. 1973) (holding that, for a plea to be intelligent, a defendant must
“have a full understanding of its consequences ,” and reversing a conviction because the
record did not show “that the trial judge discussed the consequences of the plea so that
[the] defendant would have a full understanding of [the] consequences”). But Casarez is
distinguishable: here, the transcript clearly shows that appellant was aware of the
consequences of his plea. The district court told appellant that, with a plea agreement, his
sentences would be concurrent rather than consecutive; the PD said he would ask for a
downward durational departure so appellant would receive “60 months concurrent on [the
second-degree controlled-substance conviction] as well”; and appellant, when asked if this
sounded accurate, said, “Yes. Yes. They’ll be 60. And I said basically 60 altogether,
everything ran concurrent . . . .”
Appellant told the prosecutor that he knew a guilty plea to a drug offense could be
used in the future to make other drug offenses have more severe consequences. When the
prosecutor asked if appellant understood that he could plead guilty on the assault and take
the drug case to trial, or plead guilty on the drug case and take the assault to trial, or take
both to trial, appellant answered that he wanted to enter guilty pleas on both cases. The
transcript reflects that appellant understood the consequences of his plea.
There was no abuse of discretion in denying appellant’s motion to withdraw his
guilty plea.

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Appellant also argues that the vacating of his firearm offense entitled him to
reconsideration of his sentence, relying on State v. Provost, 901 N.W.2d 199, 202 (Minn.
App. 2017) (concerning a CHS reduced by the vacation of a conviction under Haywood
and holding that “when a defendant is sentenced based on an incorrect criminal history
score, a district court must resentence the defendant”) . But Provost is distinguishable
because, in that case , the defendant had received a guideline s sentence, not a significant
downward departure from the presumptive sentence.
The district court denied appellant’s petition after concluding that appellant “ha[d]
failed to establish a reasonable probability of a different outcome absent the error in the
criminal history score” because the difference between the presumptive sentence f or
second-degree controlled-substance crime with a CHS of nine (111 months) and a CHS of
six and one half (109 months) was minimal and, in any event, appellant did not receive the
presumptive sentence but rather a departure “more than forty percent (40%) less than the
presumptive sentence.” There was no error in the district court’s decision not to reconsider
appellant’s sentence.
Affirmed.