State v. Ilogu

State of Minnesota, Respondent, v. Melie Ike Ilogu, Appellant.

A17-1602

STATE OF MINNESOTA IN COURT OF APPEALS

September 17, 2018

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Affirmed

Smith, John, Judge^*

Hennepin County District Court

File No. 27-CR-15-25044

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Kirk, Judge; and Smith, John, Judge.

UNPUBLISHED OPINION

SMITH, JOHN, Judge

We affirm appellant Melie Ike Ilogu's conviction for third-degree criminal sexual conduct because the district court did not err in refusing to permit appellant to withdraw his guilty plea and did not err in its imposition of the fine amount.

FACTS

Appellant was charged with third-degree criminal sexual conduct based on an incident that occurred on July 19, 2015. On February 15, 2017, just before closing arguments in a jury trial on the charge, Ilogu asked his attorney to determine whether the state's proffered plea agreement was still available. The state indicated it was not but made a new offer and Ilogu decided to plead guilty. Although Ilogu expressed some hesitation about the guilty plea—he told the district court, "I am ready to plead guilty. I am only hesitant because I would like to be able to wrap up some affairs and at least see my daughter before I go to prison." Ilogu pleaded guilty to third-degree criminal sexual conduct with a promise of a bottom-of-the-box sentence of 41 months.

The next day, Ilogu sought to withdraw his guilty plea, arguing that he was under duress from defense counsel. On March 10, 2017, Ilogu, through newly hired counsel, filed an amended motion to withdraw his guilty plea, citing ineffective assistance of counsel for failing to explain the terms of the sentence, health concerns arising out of an infection, improper pressure from defense counsel, confusion following six months in segregation while awaiting trial, and immigration concerns. The district court considered the motion under both the manifest-injustice and the fair-and-just standards, and concluded that Ilogu had not demonstrated that he should be permitted to withdraw his guilty plea.

On July 14, 2017, the district court denied Ilogu's second amended motion to withdraw his plea and sentenced Ilogu to an executed 41-month sentence and a $30,000 fine. Ilogu appeals from both his conviction and the sentence.

DECISION

1. Ilogu is not entitled to withdraw his plea on grounds of manifest injustice.

A defendant does not have an absolute right to withdraw a guilty plea after entry. Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016). But a court must permit a defendant to withdraw a guilty plea if it "is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice exists if a guilty plea is invalid. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). "To be constitutionally valid, a guilty plea must be accurate, voluntary, and intelligent." Id. In addition, this court has stated that "a guilty plea based on ineffective assistance of counsel creates a manifest injustice as a matter of law." State v. Ellis-Strong, 899 N.W.2d 531, 541 (Minn. App. 2017). We review the validity of a guilty plea and a defendant's claim of ineffective assistance of counsel de novo. Taylor, 887 N.W.2d at 823. A defendant has the "burden of showing his plea was invalid." State v. Boecker, 893 N.W.2d 348, 350 (Minn. 2017) (quotation omitted).

a. Voluntariness of plea

Ilogu argues that his plea was not voluntary. A plea is not voluntary if a defendant is pleading guilty because of improper pressure or coercion. Raleigh, 778 N.W.2d at 96. Ilogu cites three circumstances that made his plea involuntary: (1) his attorney discussed the plea in a "non-private" setting and pressured him to plead guilty; (2) he was not given enough time to consider whether to plead guilty; and (3) he was physically ill and mentally unstable after spending time in solitary confinement in jail.

The record does not support Ilogu's claims. A review of the transcript shows that Ilogu asked defense counsel if the state's plea offer was still available. See id. (rejecting argument that plea was not voluntary when defendant suggested pleading guilty). Defense counsel stated that he had reviewed the plea petition with Ilogu in the holding cell, not the courtroom. The state offered Ilogu a similar plea agreement before trial and the case itself had taken over a year to resolve. According to email and court records, Ilogu was given almost two hours to consider the plea offer, and the plea colloquy shows that Ilogu had sufficient time to consult with his attorney and he had not been pressured into pleading guilty. The district court questioned Ilogu about whether he was impaired by drugs or alcohol, and he denied this. In its order denying the withdrawal petition, the judge noted that she had observed no signs of physical or mental impairment during the plea hearing. The district court's order indicates that the court found Ilogu's allegations not credible.

The district court also carefully reviewed the transcripts of jailhouse calls Ilogu made following the guilty plea and found that the calls showed that Ilogu "was thinking clearly and decided to plead guilty solely because he thought he would be convicted and spend more time in prison." The district court concluded that Ilogu had not "sustained his burden of showing his plea [was] not voluntarily made." The record supports the district court's determination that Ilogu's plea was voluntary.

b. Ineffective assistance of counsel

Ilogu argues that his guilty plea was invalid because his defense counsel was ineffective. We review a claim of ineffective assistance of counsel de novo. Taylor, 887 N.W.2d at 823.

Ilogu argues that defense counsel assured him he would not have to participate in sex-offender treatment, which the Minnesota Department of Corrections (DOC) requires for all incarcerated persons convicted of sexual crimes. But Ilogu did not raise this as a basis for plea withdrawal before the district court. An appellate court does not decide issues that were not raised before the district court. State v. Ali, 855 N.W.2d 235, 261 (Minn. 2014).

Even if we were to consider his ineffective-assistance-of-counsel claim, Ilogu has failed to sustain his burden of showing "that counsel's representation fell below an objective standard of reasonableness," and that there is "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Campos v. State, 816 N.W.2d 480, 486 (Minn. 2012) (first quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984); then quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985)).

Ilogu offers no evidence that he would not have pleaded guilty had he known he would have to participate in sex-offender treatment and, therefore, has failed to show that he was prejudiced by the claimed affirmative misadvice. See Lee v. United States, 137 S. Ct. 1958, 1967 (2017) (determining that a defendant satisfied prejudice prong of ineffective-assistance claim based on affirmative misadvice when the defendant adequately demonstrated a reasonable probability that he would have rejected a guilty plea had he been properly advised). The district court's conclusion that Ilogu did not show he should be allowed to withdraw his plea due to a manifest injustice is not erroneous.

2. Ilogu has not demonstrated that it would be fair and just to permit him to withdraw his presentence guilty plea.

Before sentencing, a court may permit a defendant to withdraw a guilty plea "if it is fair and just to do so." Minn. R. Crim. P. 15.05, subd. 2; see also State v. Farnsworth, 738 N.W.2d 364, 371 (Minn. 2007). The fair-and-just "standard is less demanding than the manifest injustice standard," but "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). The district court considers two factors: (1) defendant's proffered reasons supporting withdrawal, and (2) prejudice to the state. Raleigh, 778 N.W.2d at 97. The defendant has the burden of advancing reasons for withdrawal. Id. We review the district court's decision for an abuse of discretion. Farnsworth, 738 N.W.2d at 372.

Before the district court, Ilogu offered three reasons in support of withdrawal: he did not understand his conditional release term or the registration requirements, and he did not have an opportunity to talk to an immigration attorney. On appeal, Ilogu argues that he was not advised he would have to participate in sex-offender treatment. Again, an appellate court does not decide issues that were not raised before the district court. Ali, 855 N.W.2d at 261. And Ilogu not only did not raise the issue below, he also failed to articulate any reason why mandatory DOC-ordered sex-offender treatment raises issues of fairness and justice. He alleges briefly that any time a defendant is deprived of effective assistance of counsel, it is fair and just as a matter of law to permit withdrawal of a guilty plea, citing State v. Lopez, 794 N.W.2d 379, 383-84 (Minn. App. 2011). But Ilogu's proffered reasons are not supported by the record.

In Raleigh, the supreme court rejected the state's arguments that it was prejudiced by an almost 16-month delay between the offense and the motion to withdraw. 778 N.W.2d at 98. Here, the time between the offense date and motion to withdraw is similar—about 20 months. But the state had completed a six-day jury trial and the attorneys were about to give closing...