State of Minnesota, Respondent, vs. Melvin Charles Klindt, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-00-423

 

State of Minnesota,

Respondent,

 

vs.

 

Melvin Charles Klindt,

Appellant.

 

Filed August 22, 2000

Reversed and remanded Harten, Judge

 

Wilkin County District Court

File No. K5-98-222

 

Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

 

Timothy E.J. Fox, Wilkin County Attorney, P.O. Box 214, Breckenridge, MN 56520 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

            Appellant challenges the district court's denial of his motion to withdraw his guilty plea.  Because we conclude that the district court abused its discretion, we reverse and remand.

FACTS

            Appellant Melvin Charles Klindt was charged with theft by fraud in violation of Minn. Stat. § 609.52, subd. 2(3) (1998), and theft by swindle in violation of Minn. Stat. § 609.52, subd. 2(4) (1998).  According to the complaint, which is based on a report prepared by the FBI, Klindt persuaded the victim to give him $100,000 for investments.[1]  Klindt did not invest the money as promised and subsequently refused to return the money to the victim. 

            Pursuant to a plea agreement, Klindt agreed to plead guilty to an amended count of theft by temporary control (Minn. Stat. § 609.52, subd. 2(5) (1998)), and the state agreed to drop the swindle charge.  The parties also agreed that the district court would not accept Klindt's guilty plea until October 15, 1999, thereby allowing Klindt time to return the stolen money to the victim.  If the money was returned by October 15, the state agreed to move the court to dismiss the charges against Klindt.  If the money was not returned, the court would accept Klindt's guilty plea and impose sentence.  Klindt appeared pro se during the proceedings, but his standby counsel participated in the plea negotiations.

On August 30, 1999, Klindt appeared before the Wilkin County District Court.  Despite his claims of innocence, Klindt ultimately pleaded guilty.  Acceptance of the plea was deferred as agreed.

Klindt subsequently failed to return the money to the victim by October 15.  On October 21, 1999, the district court accepted his guilty plea and scheduled a sentencing hearing for December 14, 1999.  On December 13, Klindt filed a motion to withdraw his guilty plea, arguing that it was a manifest injustice because he was innocent.  Before sentencing, the district court heard Klindt's motion to withdraw his plea and denied the motion, finding that it was untimely and there was no manifest injustice.  The district court then went on to impose sentence.  This appeal followed.

D E C I S I O N

1.         Standard of Review

There is no absolute right to withdraw a guilty plea after it is entered.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  A district court has broad discretion in deciding whether to grant a defendant's motion to withdraw a guilty plea, and we will not reverse a district court's denial of the motion absent a clear abuse of discretion.  Id. If a defendant demonstrates that "withdrawal is necessary to correct a manifest injustice," the district court shall permit withdrawal before or after sentencing.  Minn. R. Crim. P. 15.05, subd. 1.  Even if manifest injustice does not exist, however, a court may permit a defendant to withdraw a plea before sentencing "if it is fair and just to do so," taking into consideration whether granting the motion would prejudice the prosecution.  Minn. R. Crim. P. 15.05, subd. 2. 

2.         Timeliness of Motion        

The district court stated:

Based upon all of the foregoing, Mr. Klindt, your motion [to withdraw] is ruled to be untimely, and on that basis alone the Court can deny it and does.

 

Klindt argues that the district court abused its discretion in denying his motion to withdraw as untimely.[2]  We agree. 

Klindt brought his motion to withdraw under the manifest injustice standard.  A court

shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.

 

Minn. R. Crim. P. 15.05, subd. 1.  The rule does not provide guidance for determining when a motion under this provision is timely.  The comment to the rule leaves the issue to adjudication.  Minn. R. Crim. P. 15 cmt.

            Here, the district court accepted Klindt's guilty plea on October 21, 1999.  He brought his motion to withdraw less than two months later and before sentencing.  The state demonstrated no prejudice that would have resulted from granting the motion.  See Minn. R. Crim. P. 15.05, subd. 2 (court may allow defendant to withdraw guilty plea before sentencing if to do so is fair and just and would result in no prejudice to the prosecution).  We conclude that the motion was timely and the district court abused its discretion in denying the motion as untimely.

3.         Manifest Injustice

            "Manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent * * *." Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).           The main purpose of the accuracy requirement is to protect a defendant from pleading guilty to a more serious offense than he could be convicted of at trial.  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).  The voluntariness requirement insures that the defendant does not plead guilty because of any improper pressures or inducements.  Id.  The requirement that the plea be intelligent is "designed to insure that the defendant understands the charges, the rights being waived and the consequences of the guilty plea."  Id.

            Klindt argues that his plea was not accurate because he did not admit facts necessary to support a plea to theft by temporary control.  He argues that no crime was committed.  A proper factual basis must be established for a plea to be accurate.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  It is the responsibility of the district court to ensure that a sufficient factual basis for a guilty plea is on the record.  Vernlund v. State, 589 N.W.2d 307, 310 (Minn. App. 1999).

            Here, the court did not ask Klindt to provide a narrative of the events supporting his guilty plea, nor question him on those events.  See State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983) (usual way of establishing factual basis is for court to ask defendant to express in his own words what happened); State v. Hoaglund, 307 Minn. 322, 325, 240 N.W.2d 4, 5 (1976) (district court should personally question defendant to establish factual basis).  Instead, the court accepted the prosecutor's recitation of the facts and relied on an FBI report to establish a factual basis.

The court's reliance on the FBI report and its questioning of Klindt leaves us with grave doubt as to the accuracy and voluntariness of his plea:

Court:             * * * As to that charge sir, how do you now plead, guilty or not guilty?

 

Klindt:            As of October 15th yeah guilty.

 

Court:             Plead guilty and then I'll accept the plea on October 15th or not.

 

Klindt:            Yup, okay.

 

Court:             So, you plead guilty?

 

Klindt:            Against my better judgment, yes.

 

Court:             All right.  Do you have any objection to this Court accepting as the factual basis reports of the FBI that are on file in this matter?

 

Klindt:            Not with respect to the FBI report.

 

Court:             All right.

 

Klindt:            The understanding is not correct.

 

Court:             Okay.

 

Klindt:            But, basically I'm into a situation of perjury because I'm pleading guilty to something that I didn't do.  And by saying I'm guilty that's perjury.

 

Court:             Did you sign a Petition to Enter a Plea of Guilty?

 

Klindt:            No.

 

Court:             Do you have such a Petition to Enter a Plea of Guilty?

 

Klindt:            No.

 

The district court failed to clarify whether Klindt agreed to the use of the FBI report as a factual basis for his plea.  Even after noting Klindt's unease with pleading guilty and claim that he was committing perjury by pleading guilty, the district court failed to inquire further.  Because Klindt proceeded pro se, he did not have an attorney to question him about his assertions of innocence and make certain his plea was voluntary.  Therefore, the district court should have interrogated him to see whether his conduct justified his guilty plea.  See State ex rel. Dehning v. Rigg, 251 Minn. 120, 122, 86 N.W.2d 723, 725 (1957) (failing intervention by defense counsel when defendant indicated doubt as to his guilt, the court, on its own initiative, should have instructed counsel to talk with defendant). 

            The state argues that Klindt's plea was voluntary, even though he maintained his innocence, because it was an Alford-Goulette plea. A defendant enters an Alford-Goulette plea by pleading guilty to an offense while maintaining his innocence, because he reasonably believes, and the record establishes, that the state has sufficient evidence to obtain a conviction.  Ecker, 524 N.W.2d at 716.  The fact that a defendant is entering an Alford-Goulette plea must be indicated explicitly on the record, and the court should question the defendant regarding his understanding of the legal implications of such a plea and why he is willing to plead guilty.  Id. at 717.  Here, absolutely nothing in the record indicates that this was an Alford-Goulette plea. The term, "Alford-Goulette plea," was not even mentioned.  Moreover, neither the parties nor the district court acted as though it was such a plea.  We conclude that this was not an Alford-Goulette plea.[3]  See State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977) (stating it is "absolutely crucial that when an Alford-type plea is offered the trial court should not cavalierly accept the plea but should assume its responsibility to determine whether the plea is voluntarily, knowingly, and understandingly made").

            Because the district court failed to establish an adequate factual basis or question Klindt about his claims of innocence to assure that his plea was voluntary, withdrawal is necessary to correct a manifest injustice.  We reverse the denial of Klindt's motion to withdraw his guilty plea.[4]

4.         Sentence

            Finally, we note that the district court erred as a matter of law in sentencing Klindt under Minn. Stat. § 609.52, subd. 3(1) (1998).[5]

            Pursuant to the plea agreement, Klindt pleaded guilty to theft by temporary control in violation of Minn. Stat. § 609.52, subd. 2(5).  Minn. Stat. § 609.52, subd. 3, provides that whoever commits theft may be sentenced

(1) to imprisonment for not more than 20 years or to payment of a fine of not more than $100,000, or both, if * * * the value of the property or services stolen is more than $35,000 and the conviction is for a violation of subdivision 2, clause (3), (4), (15), or (16); or

 

(2) to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if the value of the property or services stolen exceeds $2,500 * * * [.]

 

Upon accepting Klindt's plea, the court erroneously sentenced him under subsection (1).  Because Klindt pleaded guilty to violating Minn. Stat. § 609.52, subd. 2(5), the sentence would fall under subsection (2).  Even were Klindt's guilty plea acceptable, this proceeding would require reversal and remand for resentencing.

            Reversed and remanded.

[1] Klindt actually persuaded the victim to give him $600,000 for investment purposes.  The money was transferred to Klindt in two separate transactions.  The $500,000 transaction is a federal issue and is not the subject of this appeal.

[2] The state agrees that timeliness was not a proper basis for the court's denial.

[3] We also take this opportunity to express our disapproval of the manipulation of the criminal process to generate dismissal of felony charges upon the promised payment of money.

[4] Klindt also argues in his appellate brief and pro se reply brief that his plea was not intelligent because he was never informed of the maximum penalty for theft by temporary control.  Because we find manifest injustice in the court's failure to insure the accuracy and voluntariness of his plea, we do not address this argument.

[5] Though neither party raised this issue, "[i]n exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fitness, integrity or public reputation of judicial proceedings."  State v. Jones, 516 N.W.2d 545, 548 n. 5 (Minn. 1994) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392 (1935). 

 [AC1]