This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0102

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                Michael Robert Robinson,
                                       Appellant.

                                Filed December 7, 2015
                   Affirmed in part, reversed in part, and remanded
                                   Bjorkman, Judge


                             Hennepin County District Court
                               File No. 27-CR-11-21246

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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

         Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Bjorkman,

Judge.

                         UNPUBLISHED OPINION

BJORKMAN, Judge

         On appeal from his conviction of first-degree controlled-substance crime,

appellant argues that the district court erred by (1) denying his presentence motion to
withdraw his guilty plea, (2) not sentencing him to a downward durational departure, and

(3) sentencing him based on an incorrect criminal-history score. Because the district

court did not abuse its discretion by denying appellant’s motion to withdraw his guilty

plea or by declining to impose a durational sentencing departure, we affirm in part. But

because the district court erred by basing its sentence on an incorrect criminal-history

score, we reverse in part and remand.

                                          FACTS

       On June 20, 2011, respondent State of Minnesota charged appellant Michael

Robert Robinson with four counts of first-degree controlled-substance crime (sale). The

complaint alleged that on four occasions between March and April 2010, Robinson sold

cocaine to a confidential reliable informant (CRI). On each occasion, the CRI arranged

to make a controlled buy from Robinson using prerecorded buy funds. After each

controlled buy, law enforcement field-tested the substance, and each time the substance

tested positive for cocaine.

       On August 27, 2012, the parties appeared for trial. Robinson moved to discharge

his court-appointed attorney. He argued that he and his attorney did not “see eye-to-eye”

and that he believed it would be in his best interests to hire a different attorney. Robinson

had not yet retained an attorney, but claimed he could get one from a legal rights

organization. The district court denied Robinson’s motion and directed him to proceed

with his appointed counsel.

       After a brief recess, the parties informed the district court that they had reached a

plea agreement.     Robinson pleaded guilty to one count of first-degree controlled-


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substance crime, and the state agreed to dismiss the remaining three counts at sentencing.

The agreement called for a sentence of 90 months, a downward departure, conditioned on

Robinson remaining law-abiding and appearing for sentencing. The agreement further

provided that if Robinson failed to remain law-abiding or did not appear for sentencing,

the district court would impose a presumptive 146-month sentence. The plea was based

on the parties’ belief that Robinson’s criminal-history score was five.

       Robinson did not appear for sentencing, and was not brought back before the

district court until October 2014, nearly two years after his scheduled sentencing date.

The state asked the court to impose a 146-month sentence in accordance with the plea

agreement. Robinson moved to withdraw his guilty plea, arguing he only pleaded guilty

because the district court denied his request to discharge his court-appointed attorney so

he could retain new counsel.       The district court denied the motion and sentenced

Robinson to 146 months in prison. Robinson appeals.

                                     DECISION

I.     The district court did not abuse its discretion by denying Robinson’s request
       to withdraw his guilty plea.

       A defendant does not have an absolute right to withdraw a guilty plea. State v.

Theis, 

 (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




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is fair and just to do so.” Minn. R. Crim. P. 15.05, subd. 2. Robinson moved to withdraw

his guilty plea before sentencing; therefore, the fair and just standard applies.

       Under the fair and just standard, the district court must consider: (1) the reasons a

defendant advances to support withdrawal and (2) potential prejudice to the state. State v.

Raleigh, 

 (Minn. 2010).           We review the denial of a motion to

withdraw a guilty plea under the fair and just standard for an abuse of discretion, and will

reverse only in a “rare case.” State v. Cubas, 

 (Minn. App. 2013)

(quotation omitted), review denied (Minn. Dec. 31, 2013).

       Robinson argues in both his principal and pro se supplemental briefs that the

district court abused its discretion because plea withdrawal was fair and just “in light of

the district court’s refusal to allow [him] to hire replacement counsel prior to trial.” We

are not persuaded.

       An indigent defendant does not have the unbridled right to choose his own

counsel.   State v. Fagerstrom, 

, 

 (1970).

Whether to grant a continuance to permit substitution of counsel is within the discretion

of the district court, and is properly denied when “the defendant has not been diligent in

procuring counsel or in preparing for trial.” State v. Courtney, 

 (Minn.

2005). Robinson waited until the morning of trial to request a new attorney and had not

retained a substitute. At that point in time, Robinson had been represented by his court-

appointed attorney for over a year, and had already received one requested trial

continuance. And as the district court observed, the fact Robinson and his attorney might

not see eye-to-eye—Robinson’s sole reason for requesting new representation—likely


                                              4
reflects counsel’s possession of additional insight into the law. At sentencing, the district

court further addressed Robinson’s request, stating that Robinson’s attorney was diligent

in securing a continuance to verify that the lab results confirmed the identity and quantity

of drugs seized and that the claimed disagreements primarily related to his attorney’s

assessment of the strength of his case.

       On this record, we discern no abuse of discretion by the district court in

concluding that Robinson did not establish an adequate case for plea withdrawal. See

Fagerstrom, 

, 

 (affirming denial of a request for a

continuance to retain new counsel where defendant had been represented by court-

appointed counsel for nearly a year, counsel had made motions on defendant’s behalf,

and the request came on the first day of trial). And because the district court determined

that Robinson did not establish a fair and just reason to permit him to withdraw his plea,

there was no need for the court to consider the potential prejudice to the state. Cubas,

.      In sum, we conclude that the district court did not abuse its

discretion by denying Robinson’s motion to withdraw his guilty plea.

II.    Robinson is not entitled to a downward durational departure.

       “[A] sentencing court has no discretion to depart from the sentencing guidelines

unless aggravating or mitigating factors are present.” State v. Spain, 

(Minn. 1999). The appropriateness of a durational departure turns on the nature of the

offense, not the circumstances of the offender. State v. Behl, 

(Minn. App. 1998), review denied (Minn. Mar. 19, 1998). A district court may grant a

downward durational departure if the defendant’s conduct is significantly “less serious


                                             5
than that typically involved in the commission of the crime in question.” State v. Cox,

 (Minn. 1984).

       Robinson argues that the district court abused its discretion by not sentencing him

to a downward departure. The plea agreement called for a sentence of 90 months—a

downward durational departure. Robinson asserts that this agreement demonstrates that

“by the time of the plea hearing, the parties and the district court had an understanding

that there were offense-based factors that . . . would support the required finding that [his]

conduct was significantly less serious than the typical conduct for first-degree controlled

substance sale.” Robinson argues that his failure to appear for sentencing should not

disturb the agreed-to downward durational departure because it did not implicate an

offense-based factor. This argument is unavailing.

       The record contains no evidence of offense-based factors that would justify a

downward durational departure. Robinson did not advance any offense-based departure

factors at either the guilty-plea hearing or sentencing. At sentencing, the district court

explicitly stated that “[n]o substantial or compelling reasons to depart from the

Guidelines are present.”      Although the plea agreement contemplated a downward

departure, such an agreement, standing alone, cannot justify a downward departure. State

v. Misquadace, 

 (Minn. 2002).             In the absence of evidence of

mitigating offense-based sentencing factors, Robinson is not entitled to a downward

durational departure.




                                              6
III.   The district court abused its discretion by sentencing Robinson based on an
       incorrect criminal-history score.

       A sentence based on an incorrect criminal-history score is subject to appellate

review even if the defendant did not raise the issue in the district court.       State v.

Maurstad, 

 (Minn. 2007).             We review the district court’s

determination of a defendant’s criminal-history score for an abuse of discretion. State v.

Stillday, 

 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).

       The parties agree that the district court used an incorrect criminal-history score

when sentencing Robinson. The district court used a criminal-history score of five,

resulting in a presumptive sentencing range of 125-175 months. Minn. Sent. Guidelines

IV (2008). But that calculation included two points for a 1995 conviction that was

vacated.   Robinson’s correct criminal-history score is three, which results in a

presumptive sentencing range of 104-146 months. 

       The state argues that Robinson is not entitled to resentencing because his 146-

month sentence falls within the presumptive range for his correct criminal-history score.

We disagree. While it is true that we do not generally review sentences that are within

the presumptive sentencing range, State v. Delk, 

 (Minn. App.

2010), review denied (Minn. July 20, 2010), “a sentence based on an incorrect criminal

history score is an illegal sentence,” Maurstad, 

. The Maurstad court

explained that to effectuate the legislature’s intent to achieve uniformity in sentencing,

“sentences must be based on correct criminal history scores, as these scores are the

mechanism district courts use to ensure that defendants with similar criminal histories



                                            7
receive approximately equal sanctions for the same offense.” 

 The fact that the

sentence Robinson received falls within the authorized sentencing range does not change

the fact that the sentence was illegal in the first instance. He must be sentenced based on

the correct criminal-history score. Accordingly, we reverse and remand to the district

court for resentencing using a criminal-history score of three.

       Affirmed in part, reversed in part, and remanded.




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