Opinion
No. C7-96-1029.
Filed April 8, 1997.
Appeal from the District Court, Ramsey County, File No. T7-95-60454.
Hubert H. Humphrey III, Attorney General, (for Respondent).
Timothy E. Marx, St. Paul City Attorney, Maureen Dolan, Assistant City Attorney, (for Respondent).
Thomas C. Plunkett, Dudley Smith, P.A., (for Appellant).
Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant challenges the district court's refusal to modify restitution or allow appellant to withdrawal his guilty plea. Because the district court did not abuse its discretion and because appellant's plea was voluntary and informed, we affirm.
FACTS
Appellant David A. Pye was involved in a motor vehicle accident in St. Paul with a City of Mounds View Police Department squad car. Appellant was subsequently charged with failure to provide proof of insurance and with disobeying a traffic signal. He pled guilty to failure to provide proof of insurance and agreed to pay out-of-pocket restitution. In exchange, the state agreed to dismiss the traffic signal charge. Appellant indicated, in response to the district court's questions, that he understood his plea and that he was entering it voluntarily. While pleading guilty to failure to provide proof of insurance, appellant did contest the fact that he disobeyed a traffic signal.
The district court accepted the guilty plea and sentenced appellant to 10 days in the Ramsey County correctional facility and a $200 fine with a stay of execution for one year, conditioned on appellant remaining law abiding, paying the $200 fine, and paying restitution as determined by the probation department. The Ramsey County community corrections department later determined restitution to be $5,357.55.
After restitution was determined, appellant moved to amend his sentence, requesting the district court to either vacate the restitution or order restitution in a more reasonable amount. At the motion hearing, appellant argued (1) that restitution in any amount was inappropriate because the police department is not statutorily authorized to receive restitution under the circumstances presented, and (2) that even if the police department were entitled to restitution, the amount should be limited to a reasonable amount, such as $500, the usual insurance deductible.
The district court denied appellant's motion to amend or rescind restitution, concluding that even though the police department was not a victim under Minn. Stat. ch. 611A, the agreement between the state and appellant calling for the payment of restitution was valid. As to the amount of restitution, the district court found that $5,357.55 represented the reasonable out-of-pocket expenses and deemed it appropriate.
Appellant does not contest that this amount reflects the actual out-of-pocket expenses.
Appellant then made an oral motion to withdraw his guilty plea, arguing that there was no meeting of the minds on his plea agreement because the amount of restitution was excessive and not anticipated. The district court denied appellant's motion, concluding that appellant's plea had been knowing and voluntary and that there was no manifest injustice requiring a withdrawal.
DECISION
Minn. Stat. § 611A.04
Appellant argues that the district court abused its discretion by failing to follow Minn. Stat. § 611A.04, subd. 1(a) (Supp. 1995), which states in part,
In order to be considered at the sentencing or dispositional hearing, all information regarding restitution must be received by the court administrator * * * at least three business days before the sentencing or dispositional hearing.
Appellant claims that because the amount of restitution had not been determined before the plea/sentencing hearing, the district court erred by ordering restitution in any amount determined subsequent to the sentencing hearing.
Appellant does not argue that restitution was not an essential term of the plea agreement or that the district court did not accept the plea.
Appellant is precluded from raising this argument on appeal because it was not raised before the district court. Arguments made for the first time on appeal will not be considered. State v. Packard , 366 N.W.2d 721, 726 (Minn.App. 1985), review denied (Minn. July 17, 1985). Moreover, a defendant is deemed to have waived his right to raise an issue if he fails to object. See State v. Williams , 525 N.W.2d 538, 544 (Minn. 1994) (holding that by failing to object to a particular trial error, a defendant is normally deemed to have waived his right to further review). When appellant entered his plea and was sentenced, he was represented by counsel, he knew that restitution was to be out-of-pocket expenses as determined by the probation department, and he made no objection.
Appellant argues that because the district court referenced Minn. Stat. § 611A.04 to justify the amount of restitution, the district court "open[ed] the door" to review. The district court specifically found that Minn. Stat. § 611A.04 was inapplicable to this case. Concluding that appellant agreed to pay restitution to the Mounds View Police Department as part of the plea agreement, the district court looked to Minn. Stat. § 611A.04 by analogy to support the proposition that out-of-pocket expense is a proper measure of restitution.
Withdrawal of Plea
A guilty plea must be accurate, voluntary, and intelligent, and a defendant must understand the consequences of his plea. State v. Trott , 338 N.W.2d 248, 251 (Minn. 1983). Appellant argues that he should be allowed to withdraw his plea because he did not receive the benefit of his plea bargain and because his plea was not voluntary and informed.
While appellant states that his plea was not voluntary, he makes no argument and cites no authority to support this proposition. Further, an assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudice is obvious on mere inspection. Schoepke v. Alexander Smith Sons Carpet Co. , 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971). On inspection, the facts do not support the proposition that appellant's plea was involuntary.
[T]he payment of restitution to * * * police * * * as an essential term of a negotiated plea agreement may constitute a valid contract where on the defendant's part it is both voluntary and informed, where both parties receive the benefit of the bargain, and where it has been accepted by the sentencing court.
State v. Wallace , 545 N.W.2d 674, 677 (Minn.App. 1996), review denied (Minn. May 21, 1996). Appellant received what he bargained for, the dismissal of the additional charge and the state's recommendation that appellant be sentenced according to bench guidelines.
Although a plea of guilty may be set aside where an unqualified promise is made as a part of a plea bargain, thereafter dishonored, a solemn plea of guilty should not be set aside merely because the accused has not achieved an unwarranted hope.
Schwerm v. State , 288 Minn. 488, 491, 181 N.W.2d 867, 868 (Minn. 1970). As indicated in the transcript of the plea/sentencing hearing, appellant agreed to plead guilty to failing to provide proof of insurance and to pay out-of-pocket restitution . The parties did not condition the plea on the amount of restitution. Clearly, appellant wished that restitution would be low; however, his plea will not be set aside because appellant's wish was not fulfilled.
Appellant also argues that because he was not aware at his plea/sentencing hearing that the police are not normally entitled to restitution, his plea was not informed and he is entitled to withdraw it. It is undisputed that appellant had legal representation in entering his guilty plea. Where a guilty plea is counseled, we can conclude that counsel has properly informed the client of his rights. State v. Simon , 339 N.W.2d 907, 907 (Minn. 1983).
Appellant also cites an unpublished opinion of this court to argue that a defendant must be informed that the police are not entitled to restitution. We note initially that an unpublished opinion holds no precedential value. In any event, there is no authority to support the proposition that in order to establish an informed guilty plea, the state or the courts must inform a defendant that a police department is generally not a victim under Minn. Stat. ch. 611A.