Jesse Lee Lundquist, petitioner, Appellant, vs. State of Minnesota, Respondent.

Jesse Lee Lundquist, petitioner, Appellant, vs. State of Minnesota, Respondent. A06-1672, Court of Appeals Unpublished, September 11, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1672

 

Jesse Lee Lundquist, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed September 11, 2007

Affirmed

Shumaker, Judge

 

Itasca County District Court

File No. 31-K1-01-2020

 

 

John M. Stuart, State Public Defender, Michael W. Kunkel, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

John J. Muhar, Itasca County Attorney, Todd S. Webb, Assistant County Attorney, Itasca County Courthouse, 123 Fourth Street N.E., Grand Rapids, MN 55744 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appealing from an order denying postconviction relief for a petition challenging a 2002 conviction of first-degree assault, Lundquist argues that the postconviction court erred in ruling that his petition, filed four years after his plea and after his probation had been revoked, was untimely.  He also alleges that a defendant who has pleaded guilty should not be required, in effect, to challenge the plea before his probation is revoked and that the factual basis was insufficient to support the plea because appellant never admitted that he intended to cause police officers harm or fear of harm by maneuvering his vehicle to prevent them from passing him and that his actions did not constitute use of deadly force.  Because Lundquist had five opportunities to challenge his guilty plea but waited until his probation was revoked to do so, we hold that the district court did not err in finding that his petition was untimely.  We also hold that the plea itself, when read as a whole, contains a sufficient admission of intent to support a first-degree-assault conviction. 

FACTS

            In 2001, a police officer observed a vehicle driven by Lundquist crossing the centerline of a roadway.  The officer activated his emergency lights and pursued the vehicle at speeds of 60-80 miles per hour for several miles.  Another squad car joined the pursuit, and the Lundquist vehicle violated several stop signs and swerved numerous times as one of the officers attempted to drive around the vehicle.  At one point, Lundquist veered his vehicle to the left, striking the front end of one of the squad cars, causing Lundquist's vehicle to spin 180 degrees on the road.  Lundquist then drove directly toward the other squad car, striking the front of the car before attempting to get back on the roadway.  The first squad car struck Lundquist's vehicle from behind and pushed it off the road, ending the pursuit. 

            Lundquist was charged with four felonies, including first- and second-degree assault, fleeing a peace officer in a motor vehicle, criminal damage to property, gross-misdemeanor second-degree driving-while-impaired, and driving after suspension of his driver's license.  In 2002, he pleaded guilty to first-degree assault, fleeing a peace officer, second-degree DWI, four counts of driving after suspension, and one count of possession of drug paraphernalia.  He was sentenced to 120 months, the execution of which was stayed for ten years, and was ordered to serve 12 months of local incarceration.  Two years later, Lundquist's probation was revoked and his sentenced executed.  Two years after this revocation, he moved for postconviction relief to withdraw his guilty plea.  The petition was denied, and this appeal followed.

D E C I S I O N

Timeliness of Petition

            Minnesota law allows for the timely withdrawal of a guilty plea to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1.  While the rule does not define "timely," this court has previously examined the length of time between the guilty plea and the motion to withdraw the guilty plea to determine whether a motion is timely.  See State v. Danh, 516 N.W.2d 539, 541 (Minn. 1994) (noting that district court's holding that motion for withdrawal of guilty plea four months after plea was timely); State v. Weisberg, 473 N.W.2d 381, 383 (Minn. App. 1991) (stating that motion for withdrawal of guilty plea made after 17 months is untimely), review denied (Minn. Oct. 11, 1991); State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986) (holding that motion for withdrawal of guilty plea made 11 months after sentencing was untimely), review denied (Minn. Feb. 14, 1986).  Although this court recognizes that in some cases withdrawal of guilty pleas may be allowed substantially after sentencing, see Wensman v. State, 342 N.W.2d 150, 151 (Minn. 1984) (two-year delay not prejudicial, so withdrawal of plea permitted), such relief is exceptional, and unusual circumstances must justify the delay in seeking relief.

            The postconviction court dismissed Lundquist's petition as untimely because he failed to move to withdraw his guilty plea until his sentence was executed and he faced actual jail time.  The court noted that he had five opportunities to move to withdraw his plea over the course of four years, during which he was represented by an attorney.  The record supports the court's determination.  First, during sentencing, Lundquist did not move to withdraw his guilty plea.  In 2003, Lundquist appeared before the court and admitted that he violated his probation, and, although he was represented by the same counsel as during his plea, he did not move to withdraw his guilty plea at this time.  In April 2004, Lundquist appeared in court on new felony charges and was held without bail on the probation violation.  He was represented by counsel, but did not move to withdraw his guilty plea at this time.  Later that year, Lundquist again appeared before the same court for sentencing, after having been found guilty of the felony charges.  Lundquist did not move to withdraw his guilty plea, and the court revoked his probation and executed his sentence.  Almost two years later, Lundquist moved to withdraw his guilty plea in a postconviction proceeding.  

            Arguing that his delay in moving to withdraw his plea did not result in preclusive untimeliness, Lundquist cites the principles of State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987), for the proposition that, when he expected to succeed on probation, he had no incentive to challenge his plea until his probation was actually revoked.

            But Lundquist confuses an invalid plea of guilty with an impermissible sentence.  The court in Fields addressed a sentencing challenge, saying:

            A delay in challenging a durational departure may occur because a defendant who is placed on probation pursuant to a stay of execution of an aggravated sentence has less incentive to appeal the durational departure.  It is often only when the stay of execution is revoked that the defendant needs to appeal the durational departure.

 

Id.

 

            The court went on to explain that a defendant "who might never have appealed because he planned to succeed on probation" should not be compelled to appeal at the outset or else have his right to do so barred for untimeliness.  Id.

            This "incentive principle" is not applicable in the case of an allegedly invalid plea.  If the plea is invalid, there surely is no incentive nevertheless to allow a sentence to be imposed in anticipation of a successful probationary term.  The incentive is otherwise, that is, to eradicate the plea of guilty immediately so that no sentence at all can be imposed.  We do not accept as plausible or reasonable Lundquist's contention that, even though he did not sufficiently admit the crime on which all the sanctions he experienced were predicated, he still had no incentive to move to withdraw his plea until the most extreme sanction occurred.

            As the postconviction court noted, timeliness is also particularly relevant if it appears that the defendant is merely trying to avoid unforeseen consequences of his guilty plea.  Sykes v. State, 578 N.W.2d 807, 813 (Minn. App. 1998).  Lundquist knew he could go to prison if his probation were revoked and he chose not to challenge his plea until the consequences were certain, even though the basis on which to challenge his plea existed at the time of his plea and during his five court appearances after the plea.  Even if Lundquist was not trying to avoid an unforeseen consequence of his plea, he fails to explain the nearly two-year time lapse between the revocation of his probation and his petition for postconviction relief.  The postconviction court did not abuse its discretion in determining that the petition was untimely.

Accuracy of Guilty Plea

            Lundquist also argues that the factual basis elicited during his plea was insufficient to demonstrate that he had satisfied the elements for a first-degree assault and that the district court failed to ensure that his plea was accurately entered.  Lundquist does not question that the guilty plea was knowingly and voluntarily made.  But rather he argues that the plea was inaccurate. 

            This court reviews the district court's denial of a postconviction motion to withdraw a guilty plea under an abuse-of-discretion standard.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Once a guilty plea has been entered, a defendant has no absolute right to withdraw the plea.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  Despite the apparent finality of a plea, Minnesota does allow for the withdrawal of a guilty plea to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1.  A manifest injustice occurs if the plea is not accurate, voluntary, and intelligently entered.  Alanis, 583 N.W.2d at 577.  To be "accurate," a proper factual basis for the guilty plea must be established.  State v. Misquadace, 629 N.W.2d 487, 491 (Minn. App. 2001), aff'd, 644 N.W.2d 65 (Minn. 2002).  A factual basis is sufficient when evidence in the record shows that there is "credible evidence available which would support a jury verdict that defendant is guilty of at least as great a crime as that to which he pled guilty."  State v. Genereux, 272 N.W.2d 33, 34 (Minn. 1978).  Evidence consists of admissions or statements of the defendant, witness statements, or other evidence in the record.  See id. at 34 n.2 (admissions and statements of the defendant); State v. Schroeder, 401 N.W.2d 671, 675 (Minn. App. 1987) (witness statements and other evidence), review denied (Minn. Apr. 23, 1987).

            The statute under which Lundquist pleaded guilty provides:

Whoever assaults a peace officer . . . by using or attempting to use deadly force against the officer . . . while the officer . . . is engaged in the performance of a duty imposed by law, policy, or rule may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $30,000, or both.

 

Minn. Stat. § 609.221, subd. 2(a) (2000).  "Assault" is "(1) an act done with intent to cause fear in another of immediate bodily harm or death; or (2) the intentional infliction of or attempt to inflict bodily harm upon another."  Minn. Stat. § 609.02, subd. 10 (2000). 

            Lundquist admits that the peace officers involved in chasing and stopping him were engaged in the performance of duties imposed by law.  But he contends that the factual basis for his plea does not contain his admission that he ever had the intent or purpose to inflict bodily injury or to create in the officers a fear of bodily injury.  He contends that his purpose was to block the officers' paths and to keep them from passing him.  He argues that only when the prosecutor used leading questions and conclusory statements did he agree that the result of his actions might have been the officers' fear of bodily harm.  In his brief, he indicates: "Appellant's stated intent in maneuvering his vehicle during the pursuit was exclusively to prevent the law enforcement vehicles from passing him; not to cause them harm or to cause fear of such harm."

            The "deadly force" element of the assault to which Lundquist pleaded guilty is defined as meaning "force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm."  Minn. Stat. § 609.066, subd. 1 (2000).  Lundquist admitted that he was pursued by police for more than 25 miles at speeds between 60 and 80 miles an hour; and he admitted that his vehicle and the police squads at times made physical contact; and he admitted that, as the squads tried to pass him, he moved over in front of them so as to prevent them from passing; and he admitted that, at one point when a squad pursued him, his vehicle spun around 180 degrees, such that he was moving back toward the direction of the squads.  He admitted that he knew the dangerousness of his driving, and that, having spoken with his attorney about the meaning of deadly force, he was attempting to use deadly force against the officers.

            Taking the entire context of his plea, and even allowing that Lundquist did not admit that he had the purpose of causing either the requisite harm or fear of harm, he did acknowledge sufficient facts to establish that he reasonably should have known that his driving created a substantial risk of causing death or great bodily harm.  Thus, there was a sufficient factual basis from which the district court could conclude that Lundquist's plea was accurate.

            Finally, because the factual basis of Lundquist's plea was adequate to establish an accurate plea of guilty, we need not address the state's argument that, by pleading guilty, Lundquist waived his right to claim that he lacked the requisite intent to violate the statute in question.

            Affirmed.

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.