Giving your wife some cocaine to hide when you are being pulled over by police is not the same as selling it to her, the Minnesota Supreme Court ruled Wednesday.
Abshir Abtidon Barrow had the legal right to withdraw his guilty plea, the court said, reversing both the district court ruling that prohibited him from changing his plea and the state Court of Appeals, which had agreed with the district court.
The Supreme Court referred the case back to the district court. But Barrow, who was sentenced to 15 months in prison, already has served his time and been released, said Anders Erickson, his attorney in the state public defender's office.
The Supreme Court decision, written by Chief Justice Lorie Gildea, was unanimous.
Barrow, now 41, had been under investigation by the Rice County Drug Task Force for dealing crack cocaine from his Faribault residence. The Supreme Court said he reportedly left his residence in a car that his wife was driving to obtain more cocaine from his source.
Task force agents asked Faribault police to stop his car, and an agent frisked him, finding 0.7 gram of crack cocaine in his pocket. The agent asked his wife, identified in the Supreme Court decision as "C.C.," where the additional cocaine was hidden. She stated she had put it in her bra at Barrow's request, and produced a 2.1-gram package of cocaine she said she'd hidden because she was afraid of Barrow.
Barrow was charged with third-degree possession of a narcotic with intent to sell and fifth-degree possession of a controlled substance and pleaded guilty to the third-degree sale charge. Barrow said his wife was not involved in cocaine distribution, and she was not charged.
When Barrow was pleading guilty in Rice County District Court, the prosecutor asked him if he understood that the definition of sale "includes giving drugs to somebody" and Barrow responded affirmatively, the high court said.
On May 24, 2013, Barrow filed a petition for post-conviction relief, seeking to withdraw his guilty plea, arguing that "his testimony at the plea hearing did not support his conviction for a 'sale' because he did not admit that he relinquished his possessory interest in the controlled substance," the Supreme Court wrote.
The district court denied Barrow's petition for relief without holding an evidentiary hearing, saying the state statute requires "only a physical transfer of the possession of the contraband." The Appeals Court concurred. But the Supreme Court stated that Barrow never admitted he gave up more than temporary control of the cocaine.
"The limited-purpose handoff here — done as Barrow testified, so that police would not find the cocaine — does not constitute delivery for purposes of the definition of a drug sale," Gildea wrote in her opinion. "Because Barrow did not 'sell,' 'give away,' or 'deliver' the cocaine, we hold that his admitted conduct does not fit within the definition of 'sell.' "
Gildea wrote that the district court must allow a withdrawal of a plea when it is "necessary to correct a manifest injustice," which "exists if a guilty plea is not valid."
Randy Furst • 612-673-4224