Sherre Ann Rothnem Otto, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and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,

Respondent,

vs.

Donald Eugene Norman,

Appellant.

Affirmed

Randall, Judge

Hennepin County District Court

File No. 98115847

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Anderson, Presiding Judge, Toussaint, Chief Judge, and Randall, Judge.

Appellant appeals from his first-degree burglary conviction and challenges the district court's refusal to permit him to withdraw his guilty plea. Appellant requests that this court reverse and remand for trial, asserting that it would have been fair and just to permit withdrawal and that his plea was not supported by an adequate factual basis. Alternatively, appellant seeks a remand to the district court for an evidentiary hearing to address whether he was coerced into pleading guilty. We affirm.

According to the criminal complaint, in the early morning hours on November 18, 1998, appellant Donald Eugene Norman broke into his former girlfriend's home through the glass patio door. His former girlfriend, S.C., heard the noise and came out of her bedroom. Norman covered her mouth, took her into her bedroom, threw her on the bed, and digitally penetrated her vagina. When she went into the bathroom, he followed and fondled her breasts.

Norman was arrested and charged with one count of first-degree burglary and one count of third-degree criminal sexual conduct. Pursuant to a plea agreement, Norman pleaded guilty to first-degree burglary. In exchange, the state agreed to a 48-month sentence and to dismiss the criminal sexual conduct charge. Before sentencing, Norman sent the district court at least two letters requesting permission to withdraw his guilty plea. At sentencing, Norman's counsel stated that there was no basis for a motion to withdraw the guilty plea and that he could not file such a motion because it would be frivolous. Norman again repeated his desire to withdraw his plea. The district court stated that it had received Norman's letters and stated that it had previously informed Norman that his request was denied. The court also stated that if there was a basis for the request, Norman would have to bring a motion. The district court then sentenced him to 48 months. Norman now appeals from his conviction.

D E C I S I O N

A defendant does not have an absolute right to withdraw a guilty plea after its entry. Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). 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. "Manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent, and thus the plea may be withdrawn."Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

Even if a manifest injustice does not exist, the district court may permit a defendant to withdraw a plea before sentencing if doing so is "fair and just." Minn. R. Crim. P. 15.05, subd. 2. The court must take into consideration whether granting a motion to withdraw will prejudice the prosecution. Id. It is defendant's burden to establish that there is a "fair and just" reason for the court to permit withdrawal of his plea. State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991). The district court's decision to accept a motion to withdraw a guilty plea based on whether "it is fair and just to do so" is a discretionary decision that may only be reversed on appeal if the district court abused its discretion. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

Norman did not bring a formal, written motion to withdraw his guilty plea. Instead, he sent letters to the district court requesting permission to withdraw his plea and repeated this request at the sentencing hearing. The district court denied the request; informed Norman that if there was a basis, Norman would have to bring a motion to withdraw his plea; and noted that Norman's counsel had stated that there was no legal basis for the motion.

There is no question that the district court was aware that Norman wished to withdraw his plea. The district court was made aware of Norman's desire to withdraw his guilty plea by Norman's letters. Although his attorney refused to prepare a written motion for him, Norman's statements at the sentencing hearing equated to an oral motion to withdraw his plea. Generally, motions made in felony and gross misdemeanor cases must be made in writing and must be served upon opposing counsel at least three days before the omnibus hearing. Minn. R. Crim. P. 10.04, subd. 1. A motion to withdraw a plea, however, may be made before or after sentencing, and the rule permitting withdrawal does not state that such a motion must be in writing. Minn. R. Crim. P. 15.05. Further, although the district court stated at sentencing that Norman had not made a motion to withdraw, on appeal, neither party addresses the lack of a formal motion. Therefore, we will review the district court's actions as a denial of a motion to withdraw a guilty plea.

Norman first argues that he should have been allowed to withdraw his plea because it was "fair and just" to permit withdrawal. See Minn. R. Crim. P. 15.05, subd. 2 (stating court may permit withdrawal of guilty plea if "fair and just"). Norman points out that throughout the plea hearing his statements indicated his uncertainty about pleading guilty. He asserts that his statements at the hearing demonstrated that his was a "hastily entered plea made with unsure heart and confused mind." United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991).

The plea hearing began as a probable cause hearing because Norman had previously rejected the state's offered plea agreement. Throughout the hearing, Norman displayed his indecision as to how he should plead. After the court and his counsel explained his options, however, and explained that the only way he would receive less time was if the jury found him not guilty, Norman pleaded guilty. See State v. Milton, 295 N.W.2d 94, 95 (Minn. 1980) ("The fact that defendant vacillated between wanting to plead guilty and wanting to go to trial is not unusual."). He continued to insist that he did not believe that he deserved a four-year sentence but did not deny his guilt.

Because Norman agreed to plead guilty after learning the consequences of his plea, and has asserted only that he was undeserving of a 48-month sentence, we cannot say that the district court abused its discretion by denying Norman's request to withdraw his plea.

If a guilty plea is not accurate, voluntary and intelligent, a manifest injustice occurs, and a plea may be withdrawn. Perkins, 559 N.W.2d at 688. Norman asserts that his plea was not accurate or voluntary.

Norman asserts that his plea was not accurate because it was not supported by a proper factual basis. See State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) ("A proper factual basis must be established for a guilty plea to be accurate." (citation omitted)); Kelsey v. State, 298 Minn. 531, 532, 214 N.W.2d 236, 237 (1974) ("[T]here must be sufficient facts on the record to support a conclusion that defendant's conduct falls within the charge to which he desires to plead guilty.").

Under Minn. Stat. § 609.582, subd. 1(c) (1998), a person commits first-degree burglary by entering a dwelling without consent when another person is present and by assaulting a person within that dwelling or the appurtenant property. At the plea hearing, Norman admitted breaking into the victim's home. When Norman's attorney asked Norman if he had assaulted S.C., however, Norman denied it. His counsel then explained, "Assault can mean hit or assault can mean that you scare her, okay?" He went on to ask, "Do you believe that she was afraid?" Norman responded, "Do I believe she was afraid? Yeah, I believe she was scared."

As Norman notes on appeal, assault includes:

(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 (1998). Norman's counsel did not question Norman about his intent. Despite Norman's incomplete testimony, however, the complaint is also contained in the record. See State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983) (stating complaint formed part of record). By pleading guilty, a defendant "in effect judicially [admits] the allegations contained in the complaint." Id. The complaint states that Norman confessed to police that he broke into S.C.'s home and digitally penetrated her vagina. This action constituted an assault. Therefore, based on the complaint and Norman's testimony, there was a sufficient factual basis for Norman's plea.

 B. Voluntariness

Norman next asserts that if this case is not reversed outright, it should be remanded for an evidentiary hearing. He argues that he was coerced into pleading guilty and that, therefore, his plea was not voluntary. He contends that the district court could not determine whether he was coerced without conducting an evidentiary hearing.

In Kaiser, the supreme court remanded for an evidentiary hearing after determining that the district court erred by not permitting defendant to testify regarding alleged coercion. Kaiser, 469 N.W.2d at 319 ("[W]hether or not defendant was coerced by his attorney into pleading guilty required the trial court to make findings of fact and the trial court could not fairly do that without allowing defendant to testify."). Here, although Norman did not receive an evidentiary hearing, he did not request such a hearing. Further, during the sentencing hearing, he was given an opportunity to testify regarding the coercion he alleged. His testimony consisted of unsupported assertions that he was coerced into agreeing to the 48-month sentence. At no time did Norman assert that he would be able to present any evidence supporting his assertions other than his own statements. Cf. Brown v. State, 449 N.W.2d 180, 183 (Minn. 1989) (holding district court did not err in failing to conduct evidentiary hearing where neither defendant nor his counsel requested opportunity for defendant to testify, call witnesses, or present other evidence). On this record, we conclude that the district court did not err by not granting Norman an evidentiary hearing. We deny Norman's request for a remand.

 Affirmed.