Appeal from an order denying postconviction relief on the merits but without an evidentiary hearing.
As authorized by our Postconviction Remedy Act, Minn. St. c. 590, petitioner seeks to cоllaterally attack the judgment of conviction and sentence for the crime of burglary, which we affirmed on his direct appeal. State v. Beltowski,
Subsequent to our decision аnd after unsuccessful efforts to seek Federal review and other relief in the Federal courts, petitioner, refusing representation by the state public defender, initiated this proceeding in the District Court of Hennepin County by filing his pro se petition and amended petition. After receiving answers and petitioner’s reply, the district court issued specific findings of fact accompanied by a comprehensive memorandum and concluded that the numerous allegations of the petitions presented “no new factual or lеgal issues” not previously fully litigated at the time of the trial or on petitioner’s prior appeal save one issue of law relating to the legality of petitioner’s sentence. Applying the procedural rules announced in State ex rel. Roy v. Tahash,
From our review of the entire record, the only question requiring discussion is the legality of the sentence imposed, since we agree that all of petitioner’s other claims raise no factual disputes and have either been previously litigated and determinеd or amount to no more than argumentative assertions without factual support. 2
For an understanding of the question presented, certain facts appearing in greater dеtail in our prior decision should be set forth. Petitioner was charged with burglary of a TV store in violation of Minn. St. 609.58, subd. 2(1) (a), the penalty for which is not to exceed 20 years’ imprisonment if the aсcused “[w]hen entering or while in the building * * * possesses an explosive or tool to gain access to money or property.” Shortly after arraignment in the district court, on his own motion and with consent of the state — on the basis that “it would seem appropriate that this motion be granted because there is a serious question about the tool that was in use” undеr the statute — , petitioner was permitted to plead guilty to a lesser included offense of burglary with intent to “steal or commit a felony or gross misdemeanor” in violation of § 609.58, subd. 2(3), the punishment for which is not to exceed 5 years’ imprisonment. A limited sentence of not to exceed 4 years was then imposed. Three days later, on petitioner’s pro se motion, the judgment of conviction was vacated, and he was allowed to withdraw his plea of guilty on the basis of his claim of newly discovered evidence of entrapment. Thereuрon, on motion of the state, the original charge was reinstated. Following trial, at which upon petitioner’s election no lesser included offense was submitted to the jury, a guilty *218 verdiсt was returned and a limited sentence of not to exceed 10 years imposed. 3
In essence, petitioner now contends that the reinstatement of the original charge аnd the imposition of the 10-year sentence violate constitutional due process for the reason that the increased sentence penalized him for successfully еxercising his legal right to move to withdraw his plea of guilty to the lesser included 5-year burglary offense.
4
We do not agree. As we read this record, petitioner’s conviction and sentеnce on the lesser charge resulted from a plea negotiation and agreement arrived at in open court. The offer to plead guilty to the lesser included offеnse was initiated by petitioner. The prosecution acquiesced and agreed, not because of an unequivocal abandonment of the greater charge because of the belief the charge was unwarranted as in State v. Youngren,
When petitiоner moved to withdraw his plea, he necessarily sought to renege on a fully performed plea agreement, and in our opinion, withdrawal should not have been permitted by thе court. He did not claim that withdrawal was necessary to correct a manifest injustice such as a denial of fundamental rights, or a failure of the prosecution to fulfill its part оf a plea agreement, or meet any of the requirements set out in Chapman v. State,
Whilé we recognize that withdrawal of a plea of guilty after judgment and sentence is permissible in the discretion of the court, it is not proper to permit withdrawal where the judgment and sentence is the result of a judicially approved plea agreement without a determination by the trial court that withdrawal is necessary to correct a manifest injustice. Chapman v. State,
supra.
A defendant, no less than a prosecutor, should not be pеrmitted to renege on a plea agreement without sufficient cause, nor to use a plea of guilty as a tactical device to frustrate the prosecution of аn offense which the evidence would support. Chapman v. State,
supra.
7
A failure to require petitioner to adhere to a plea agreement properly negotiatеd and approved by the court would obviously have an adverse effect on the prosecution’s employment of plea negotiations and plea agreemеnts as an effective aid in the administration of criminal justice. State
*220
v. Johnson,
For the reasons stated, we conclude that the postconviction court properly denied relief.
Affirmed.
Notes
See, also, Fay v. Noia,
Minn. St. 590.04. See, also, A. B. A. Project on Minimum Standards for Criminal Justice, Standards Rеlating to Post-Conviction Remedies (Approved Draft, 1968) § 4.5.
The decision to submit lesser included offenses rests with the trial court, not controlled by petitioner’s election. State v. Pankratz,
Petitioner’s personal arguments of a denial of other constitutional rights have been rejected. See, North Carolina v. Pearce,
This issue has now been resolved to support the greater charge by State v. Spangler,
See, A. B. A. Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty (Approved Draft, 1968) PART III. PLEA DISCUSSIONS AND PLEA AGREEMENTS.
Cf. State v. Wolske,