State of Minnesota, Respondent, vs. Brad LeRoy Burson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-2193

State of Minnesota,

Respondent,

vs.

Brad LeRoy Burson,

Appellant.

Filed September 9, 2003

Affirmed

Toussaint, Chief Judge

Crow Wing County District Court

File No. K499578

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

Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN 56401 (for respondent)

Gregory K. Larson, Eric P. Baumann, Larson Law Office, 111 First Avenue S.E., Little Falls, MN 56345 (for appellant)

Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

UNPUBLISHED OPINION

TOUSSAINT, Chief Judge

Appellant challenges the district court's denial of his motion to withdraw a guilty plea.  Because the district court correctly concluded that the Alford plea was accurate, intelligent, and voluntary, that the victim had not recanted her statement and that withdrawal of the plea would prejudice the state, we affirm.

D E C I S I O N

            This court will reverse the district court's decision on a motion to withdraw a guilty plea only if it can fairly conclude the district court abused its discretion.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

A defendant may withdraw a guilty plea if the defendant can show "that withdrawal is necessary to correct a manifest injustice."  Minn. R. Crim. P. 15.05, subd. 1.  A manifest injustice occurs where the guilty plea is not accurate, voluntary, and intelligent.  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).   

Voluntary

            The voluntariness requirement of a valid plea insures that a defendant did not plead guilty because of improper pressures or inducements.  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).  "The voluntariness of [a] plea can be determined only by considering all of the relevant circumstances surrounding it."  State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994) (quoting Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 1469 (1970)).

Burson argues that because the district court did not question him regarding the statements he made in the pre-sentence investigation report, his plea was not voluntary.  In the report, he stated that he was innocent, felt "railroaded," and wanted to withdraw the guilty plea.  These statements, however, are consistent with an Alford plea.  Under Alford, a defendant may maintain his innocence while agreeing that he may be convicted by the facts.  North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 167 (1970) Furthermore, when the court later asked Burson during the May 8 hearing whether he wanted the court to accept his guilty plea, Burson replied "yes" and showed no uncertainty in entering his plea.  In light of these facts, and the fact that at prior hearings Burson indicated that he understood his rights and what he was waiving by entering a guilty plea, we find that the district court correctly concluded Burson's guilty plea was voluntary.

Intelligent

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.  Brown, 449 N.W.2d at 182.  For a guilty plea to be intelligent, the defendant must be aware of the relevant circumstances and direct consequences of the plea.  Brady v. U.S. 742, 397 U.S. 748, 90 S. Ct. 1463, 1469; Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998).

Burson claims that his plea was not intelligent because when he pleaded guilty he was unaware of the statement allegedly made by the victim's guardian ad litem indicating that the victim had recanted her version of the sexual assault, and thus he was not aware of all the "relevant circumstances."  This matter was raised in the district court and after inquiry the court was satisfied that no such recantation occurred.  While Burson argues that this investigation was not thorough and that the court should have conducted an evidentiary hearing, the record proves otherwise.  During the May 28 hearing, Burson's counsel requested that the district court, as the only impartial party, be the one to investigate the alleged statements.  Both parties agreed that the court would speak with the guardian ad litem, and then it would decide whether it was necessary to speak to anyone else.  The parties further agreed that if the court were to conclude that there was no evidence indicating that the victim had changed her statements, the matter would go on to sentencing.  Because upon proper inquiry the court found that the alleged statement by the guardian ad litem was never made, it does not support Burson's claim that his plea was not intelligent.

Here, the record establishes that during the March 5, 2002 hearing the district court asked Burson if he had enough time to speak to his attorney, if he understood the plea agreement, and if this was how he wanted to proceed.  Burson answered "yes" to all the questions.  The court explained to Burson his rights, and that he would be surrendering them by pleading guilty.  The court then asked Burson if he wanted the court to accept his plea, to which he replied "yes."  The district court continued the guilty plea until a pre-sentence investigation was completed.  When the court accepted Burson's plea on May 8, Burson agreed that he did not want the court to go over his rights again because he recalled his rights as explained during the last hearing, and understood that those same rights still applied.  Because throughout the proceedings Burson indicated that he understood the charges, the rights being waived, and the consequences of the plea, we conclude that his guilty plea was intelligent. 

Accurate

An accurate plea protects the defendant from pleading guilty to an offense more serious than that for which he could be convicted if he were to go to trial.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  The district court must establish a proper factual basis on the record for an accurate guilty plea.  Id.  In cases where the defendant claims loss of memory due to intoxication, the factual-basis requirement is satisfied if the evidence is sufficient to persuade the defendant and his attorney that the defendant is guilty or likely to be convicted of the crime charged.  Id.

Burson argues that the factual basis was inadequate because the district court never questioned him directly regarding the factual circumstances alleged in the complaint, but instead, relied solely upon the leading questions by his attorney, coupled with his statement that he agreed to "accept the allegations in complaint as true."  Although it is preferable to establish a factual basis through the defendant's own testimony, this is not the exclusive method of satisfying the factual-basis requirement.  Kochevar v. State, 281 N.W.2d 680, 686 (Minn. 1979). If the record supports the conclusion that the defendant made a voluntary and intelligent plea, the defendant will not be allowed to withdraw the plea even though the questions asked were leading.  See Perkins, 559 N.W.2d at 689.  Because Burson made a voluntary and intelligent plea, the leading questions are not problematic.  In addition, a sworn complaint can be considered part of the factual basis.  State v. Warren, 419, N.W.2d 795, 799 (Minn. 1988).  Therefore, the fact that the court did not directly question Burson regarding the factual basis for the plea does not in itself make the plea inaccurate.

The record shows that an adequate factual basis was established by the district court.  The court questioned Burson extensively during the March 5 hearing and instructed the state to elicit a factual basis for the plea. Through questioning by his attorney, Burson indicated that he understood that he (1) was charged with criminal sexual conduct with a girl under the age of thirteen when he was more than three years older than she; (2) had drunk excessively and used marijuana; (3) passed out or went to sleep; and (4) had no recollection of the events alleged by the victim.  The prosecutor then asked Burson if he was willing to let the court use the complaint in order "to determine whether or not there's sufficient evidence to in fact have [him] found guilty," and Burson answered "yes."  The court then asked Burson if he "agree[d] that the state possesses sufficient evidence, if believed by the jury, to convict [him] of this offense."  Burson answered "yes."  The district court continued its acceptance of the guilty plea until Burson had completed a written plea petition.  The matter was then set for May 8, when Burson agreed to have the court accept the allegations in the complaint as true.

Burson next argues that the fact that he was too intoxicated to remember whether he committed the offense was inaccurate because in the pre-sentence investigation he claimed that "he could not have drunk enough that evening to black out the incident." This isolated comment in the pre-sentence report was negated by extensive questioning throughout numerous hearings at which Burson indicated he did not recall the incident.  Nor did Burson provide a different version of the facts.  Instead, throughout the proceedings, Burson maintained that he wanted the court to accept the facts as alleged in the complaint as a factual basis for the guilty plea.

Prejudice

Where a defendant has not yet been sentenced, the court may, in its discretion, allow withdrawal of a guilty plea if it is fair and just to do so.  Minn. R. Crim. P. 15.05, subd. 2.  The court must give

due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea.

Id.  The burden is on the state, however, to prove undue prejudice.  Hoagland v. State, 518 N.W.2d 531, 536 (Minn. 1994).  Whether the state will be unduly prejudiced depends on the facts of each case.  Id.

Burson argues that the district court erred in concluding that the state would be prejudiced if he were allowed to withdraw his guilty plea. The district court concluded that

there may be prejudice to the state in that the length of time that has gone by since the time of the incident might make it appear in the minds of the jurors that the victim has difficulty remembering because of the time that's gone by, and I believe the delays in this case certainly created that problem, and there is prejudice in that respect.

            And I would also note that certainly the victim and her family have relied on the defendant's plea to have some peace of mind, and now to take away that peace of mind from them without a good reason, I just don't believe it would be appropriate * * * .

Particularly in light of the court's determination that the plea was voluntary, accurate and intelligent, the court did not abuse its discretion in concluding that the state would be prejudiced if Burson were allowed to withdraw his guilty plea.

Affirmed.