Erland Nelmer Berg, 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This opinion will be unpublished and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 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-211

 

 

Erland Nelmer Berg,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed September 21, 2004

Affirmed
Klaphake, Judge

 

St. Louis County District Court

File Nos. K1-01-300489/K0-02-300056

 

 

Keith M. Carlson, 807 Cloquet Avenue, Post Office Box 770, Cloquet, MN  55720 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Alan Mitchell, St. Louis County Attorney, Jeffrey M. Vlatkovich, Assistant County Attorney, 107D courthouse, 1810 12th Avenue E., Hibbing, MN  55746 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Erland Nelmer Berg appeals from a district court order denying his postconviction petition to withdraw his guilty plea to first-degree burglary.  Appellant argues that there is an insufficient factual basis for his guilty plea and that he received ineffective assistance of counsel.

            Because the district court did not abuse its discretion by denying appellant's postconviction petition and because appellant failed to prove that his counsel's performance was deficient, we affirm.

D E C I S I O N

            This court reviews a postconviction court's decision to determine whether there is sufficient evidence to sustain the findings and whether the postconviction court abused its discretion.  Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001).  The party seeking postconviction relief bears the burden of establishing the facts alleged in the petition by a fair preponderance of the evidence.  Id. 

            1.         Withdrawal of Plea

             A defendant must make a timely motion and submit proof that the withdrawal of the plea, if sought after sentencing, is necessary to correct a manifest injustice.  Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).  A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent.  Id. at 688.  In order for a plea to be accurate, an adequate factual basis for the plea must be established.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). 

            Appellant specifically argues here that there is no factual basis that he entered the victim's home without consent.  Appellant testified under oath that he read all the statements and reports included in the file, except the medical records.  The police reports and the complaint include the victim's statements that appellant entered her home without her permission while she slept on the sofa; appellant did not dispute these statements at his sentencing hearing.  Although appellant asserted at the postconviction hearing that he had the victim's consent to enter her home, the record reflects that the district court did not find appellant to be a credible witness. 

            While the factual basis provided at the plea hearing is slight, the record is adequate to support the denial of appellant's postconviction petition.  We therefore conclude that the district court did not abuse its discretion.[1]

            2.         Ineffective Assistance of Counsel

            We review the district court's decisions on ineffective assistance of counsel claims de novo.  Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004).  A claim of ineffective assistance of counsel requires proof by a preponderance of the evidence of two elements:  (1) that defense counsel's performance was so deficient it fell below an objective standard of reasonableness; and (2) but for counsel's deficient performance, the outcome of the trial would have been different.  Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001).  In the case of a guilty plea, the petitioner must show a reasonable probability that he would not have entered a guilty plea, but for counsel's ineffective representation.  Johnson, 673 N.W.2d at 148.  The petitioner has the burden of proving ineffective assistance of counsel.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998). 

            Most of appellant's allegations regarding ineffective assistance of counsel are factual in nature:  the amount of time his attorneys spent with him; the number of conversations he had with them; whether the charges were explained to him; whether he knew about the medical reports; and whether the plea agreement was adequately explained.  The affidavits of counsel provided to the district court refute appellant's claims.  Accordingly, as to appellant's factual claims, there is sufficient evidence in the record to support the district court's findings of fact, which necessarily included some credibility determinations.  See Sanders, 628 N.W.2d at 600.

            Appellant also argues that his attorneys failed to contact or interview any of the witnesses whose names he provided.  But mere failure to find or interview witnesses is not a sufficient basis for proving ineffective assistance of counsel, absent an affirmative showing that the witness testimony would have made a difference.  See Gates v. State, 398 N.W.2d 558, 563 (Minn. 1987).  Appellant has made no offer of proof regarding the witness testimony and no showing that he would have chosen to go to trial had that testimony been available.

            Appellant also asserts that he felt coerced into pleading when his attorney told him that should the matter proceed to trial, the state intended to amend the charges to include first-degree assault.  Appellant's counsel advised him to plead at once to first-degree burglary, for which there was a 58-month presumptive sentence, to avoid a presumptive 96-month sentence for first-degree assault.  Although appellant argues that there was no basis for the state's proposed amendment, the victim's medical reports stated that she suffered permanent facial disfigurement and some loss of vision.  First-degree assault requires proof of great bodily harm, which is defined as "bodily injury . . . which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm."  Minn. Stat. §§ 609.221, subd. 1, 609.02, subd. 8 (2000).  Appellant's attorney made a realistic assessment of the viability of the charge; while appellant may have felt threatened by the discussion, his attorneys were obligated to explain the consequences of refusing the plea agreement.

            Appellant has failed to show by a preponderance of evidence that there was no factual basis for his plea or that his attorneys' performance was defective.  We therefore affirm the district court's denial of appellant's postconviction petition.

            Affirmed.

[1] As the Minnesota Supreme Court did in Ecker, 524 N.W.2d at 717, we encourage the district courts to establish a factual basis by requiring the defendant to state in his or her own words the basis for a guilty plea.