State of Minnesota, Respondent, vs. Terrence Davone Olive, Appellant.

State of Minnesota, Respondent, vs. Terrence Davone Olive, Appellant. A06-206, Court of Appeals Unpublished, March 13, 2007.

This opinion will be unpublished and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

A06-206

 

State of Minnesota,
Respondent,
 
vs.
 
Terrence Davone Olive,
Appellant.

 

Filed March 13, 2007

Affirmed

Minge, Judge

 

Stearns County District Court

File No. K5-05-3018

 

 

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

 

Janelle Kendall, Stearns County Attorney, Matthew E. Engelking, Assistant County Attorney, 705 Courthouse Square, Administration Center, Room 448, St. Cloud, MN 56303 (for respondent)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge; Minge, Judge; and Wright, Judge.

 

  U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

            Appellant challenges his judgment of conviction for second-degree criminal-sexual conduct, arguing for the first time on appeal that the guilty plea was not accurate, voluntary, or intelligent.  Appellant contends that he (a) did not understand the rights he was waiving by pleading guilty; (b) felt coerced into pleading guilty; and (c) did not understand that by entering a guilty plea, he gave up his right to call and confront witnesses.  Because the record demonstrates that appellant's plea was accurate, voluntary, and intelligent, we affirm. 

FACTS

            Appellant Terrence Olive was charged with two counts of second-degree criminal-sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2004).  Pursuant to a plea agreement, appellant pleaded guilty to one count in exchange for dismissal of the other count.  The district court accepted the plea and committed appellant to the custody of the commissioner of corrections for a stayed 33-month sentence.  This appeal follows. 

D E C I S I O N

            Appellant contends that the district court erred by accepting his guilty plea because his plea was not accurate, voluntary, or intelligent.  Appellant brought his appeal directly to this court, without the district court's consideration of the issue.  Generally, the court of appeals does not address an issue until the issue has been raised in district court.  State v. Hemstock, 276 Minn. 457, 458, 150 N.W.2d 562, 563 (1967).  But in certain circumstances, a defendant challenging a judgment of conviction based on an invalid guilty plea may appeal directly to this court.  State v. Anyanwa, 681 N.W.2d 411, 413 n.1 (Minn. App. 2004).  "[D]irect appeal is appropriate when the record contains factual support for the defendant's claim and when no disputes of material fact must be resolved to evaluate the claim on the merits."  Id.  Because appellant bases his challenge entirely on matters in the record and no factual disputes exist, this direct appeal is appropriate.  

            Upon a timely motion, a defendant may withdraw a guilty plea at any time, before or after sentencing, if "withdrawal is necessary to correct a manifest injustice."  Minn. R. Crim. P. 15.05, subd. 1.  "A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent."  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1988).    

I.

            Appellant first contends that his plea was not accurate, but does not specify the applicable law or relevant facts to support this contention.  We generally do not consider unsupported issues.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  But we also have the responsibility "to decide cases in accordance with law," even if a party has failed to specify or support an issue.  State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990).  Therefore, we address appellant's contention that his plea was not accurate. 

            An accurate plea is one entered without improper inducement and with a full understanding of the possible consequences and one that demonstrates that the defendant is guilty of a crime at least as serious as that to which he is pleading guilty.  Beaman v. State, 301 Minn. 180, 183, 221 N.W.2d 698, 700 (1974).  "[A]n adequate factual basis is usually established by questioning the defendant and asking the defendant to explain in his or her own words the circumstances surrounding the crime."  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  Second-degree criminal-sexual conduct results when "the complainant is under 13 years of age and the actor is more than 36 months older than the complainant."  Minn. Stat. § 609.343, subd. 1(a) (2004).  Mistake as to age is not a defense, and the state does not have to prove that the sexual contact was coerced.  Id. 

            At the plea hearing, appellant acknowledged touching a child's breasts on July 2, 2005.  He admitted that he touched the child with sexual or aggressive intent.  He also acknowledged that the child was ten years old at the time and that he was more than three years older than the child.  These admissions demonstrate that appellant was guilty of second-degree criminal-sexual conduct.

            Appellant also indicated that he understood the consequences of pleading guilty.  Appellant understood that pursuant to the plea agreement, he could serve up to 180 days in jail, be required to undergo a psychological evaluation, complete sex-offender training, and follow all conditions of his probation.  The record demonstrates that appellant's plea was accurate.

II.

            Next, appellant contends that his plea was involuntary.  Specifically, appellant claims that he was being pressured to plead guilty, that his attorney failed to file motions on his behalf, and that his attorney told him that he had little chance of acquittal if the matter went to trial.  "The purpose of the voluntariness requirement is to insure that the defendant is not pleading guilty because of improper pressures."  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). 

            Here, at the beginning of the plea hearing, appellant indicated that he felt pressure to accept the plea agreement.  He raised concerns about the representation he was receiving from his attorney, a feeling of being "railroad[ed]."  Appellant also expressed his feeling that pleading guilty was his only option and said that he was "just trying to get a way out of it."  But after expressing his concerns, appellant changed his mind and decided to accept the plea agreement.  Prior to accepting the plea, the district court questioned appellant regarding his decision.  In response, appellant indicated a desire to go forward with the plea, that he had not received pressure to enter a guilty plea, and that he wanted to accept the plea agreement because he was guilty.  Appellant also indicated that he was satisfied with his attorney's representation.  Thus, we conclude that appellant's plea was voluntarily entered.

III.

            Finally, appellant contends that his plea was not intelligent because he did not understand that by pleading guilty, he was giving up his right to confront witnesses and present his own witnesses.  A plea is intelligent when the defendant "understands the charges, the rights being waived, and the consequences of the guilty plea."  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).  To be "intelligent," a plea must be "knowingly and understandingly made."  Ecker, 524 N.W.2d at 716.  A district court should not accept a guilty plea when it is doubtful that the plea is made intelligently.  State v. Jones, 267 Minn. 421, 427, 127 N.W.2d 153, 157 (1964). 

            Here, appellant indicated his understanding that by pleading guilty, he was giving up his right to a trial.  He was informed that at trial, "the prosecutor . . . would be required to have all prosecution witnesses testify in open court" and that he would have the right to question those witnesses.  He was also informed that he could call witnesses in his defense at a trial.  Finally, appellant acknowledged that he could not be forced to testify at a trial and that the prosecutor could not comment on his failure to testify.  Appellant acknowledged an understanding of these rights before waiving them on the record.  Based on this record, we conclude that appellant's plea was intelligently entered.

            Affirmed.

 

Dated: