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STATE OF MINNESOTA IN COURT OF APPEALS A07-2447

Portrice Williams, petitioner, Appellant, vs. State of Minnesota, Respondent.

Filed January 27, 2009 Affirmed Lansing, Judge

Hennepin County District Court File No. 01073864

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent) Lawrence Hammerling, Chief Appellate Public Defender, James R. Peterson, Assistant Public Defender, Suite 300, 540 Fairview Avenue North, St. Paul, MN 55104 (for appellant)

Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Worke, Judge.

SYLLABUS An adequate factual basis for a Norgaard plea exists if the record provides a strong factual basis for the plea, and the defendant acknowledges that the evidence is sufficient to support his or her conviction. OPINION LANSING, Judge Portrice Williams appeals from the denial of her postconviction petition for plea withdrawal and her alternative request for sentence modification. Because the

postconviction court properly concluded that Williams's Norgaard plea was accurate, voluntary, and intelligent and because sentence modification is unwarranted, we affirm. FACTS The state charged Portrice Williams in May 2002 with second-degree assault and terroristic threats. The complaint alleged that on June 30, 2001 Williams engaged in a physical struggle with another woman, MR, in a parking lot, got into her truck, and "drove at [MR] multiple times" while yelling "I will kill you." MR's husband grab bed MR and pushed her into the bushes so she would not be hit, and MR "ultimately hid behind a large steel theater sign for protection." The complaint also stated that three witnesses provided similar accounts of the event. The state offered Williams a plea bargain. If Williams was willing to plead guilty to the assault charge, the state would agree to dismiss the terroristic-threats charge and recommend that the district court grant a downward dispositional departure by staying the imposition of the presumptive twenty-one month commitment and requiring Williams to 2

serve 180 days in the workhouse as part of a three-year probationary term. Williams rejected the state's offer because she was reluctant to serve time in the workhouse. She decided instead to enter a Norgaard plea to both the assault charge and the terroristicthreats charge. She signed a plea petition and entered her plea at a hearing in February 2003. Before sentencing, Williams moved for a downward dispositional departure. She asked the district court to sentence the felony convictions for assault and terroristic threats as gross misdemeanors and not to impose any workhouse time. The district court denied Williams's motion in April 2003. It imposed concurrent sentences of twenty one months for the two convictions, but it granted a downward dispositional departure by staying the execution of the sentences and imposing five years of probation. As a condition of probation, the district court required Williams to spend ninety days in the workhouse. Williams filed a petition to withdraw her guilty plea in April 2007 and asked for an evidentiary hearing. She requested in the alternative that her sentence be modified from a stay of execution to a stay of imposition. In an affidavit in support of her petition, she stated that the felony convictions had made it difficult for her to find a job and had "a devastating impact on [her] life." The postconviction court summarily denied Williams's request for plea withdrawal in November 2007 on two grounds--that the request was untimely and that the plea was valid and did not result in a manifest injustice. Williams appeals from the denial of her plea-withdrawal petition and her alternative request for sentence modification. 3

ISSUES I. Did the postconviction court abuse its discretion when it denied Williams's petition for plea withdrawal? Did the postconviction court abuse its discretion when it denied Williams's sentence-modification request? ANALYSIS I Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). After conviction and sentencing, a defendant may withdraw a guilty plea if two conditions are met: withdrawal is "necessary to correct a manifest injustice" and the defendant makes a timely motion for withdrawal. Minn. R. Crim. P. 15.05, subd. 1; Theis, 742 N.W.2d at 646. Manifest injustice exists when a guilty plea is invalid. Theis, 742 N.W.2d at 646. A guilty plea is valid only if it is accurate, voluntary, and intelligent. Id. We review decisions of a postconviction court for abuse of discretion. Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997). We will sustain the postconviction court's findings if they are supported by sufficient evidence in the record. Cuypers v. State, 711 N.W.2d 100, 103 (Minn. 2006). We review legal issues de novo. Id. Williams argues that she meets both of the conditions for withdrawing her guilty plea. First, she contends that withdrawal of her plea is necessary to correct a manifest injustice because her plea was not accurate, voluntary, or intelligent. See Theis, 742 N.W.2d at 646 (stating plea-validity requirements). And, second, she argues that she made a timely motion for withdrawal. We conclude that the record and the law support 4

II.

the postconviction court's determination that Williams's plea was accurate, voluntary, and intelligent. It is, therefore, unnecessary to reach the issue of whether the pleawithdrawal motion was untimely. We separately address the accuracy, voluntariness, and intelligence requirements. The accuracy requirement is intended to protect "the defendant from pleading guilty to a charge more serious than he or she could be convicted of were the defendant to go to trial." State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). Thus, "[a] proper factual basis must be established for a guilty plea to be accurate." Id. Ordinarily, an adequate factual basis is "established by questioning the defendant and asking the defendant to explain in his or her own words the circumstances surrounding the crime." Id. But in two circumstances a factual basis must be established by other means: when a defendant enters an Alford/Goulette plea and when a defendant enters a Norgaard plea. Id. at 716-17. A plea constitutes an Alford/Goulette plea if the defendant maintains innocence but pleads guilty because the record establishes, and the defendant reasonably believes, that the state has sufficient evidence to obtain a conviction. Id. at 716 (citing North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)); see also State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977) (adopting Alford rationale). A plea constitutes a Norgaard plea if the defendant asserts an absence of memory on the essential elements of the offense but pleads guilty because the record establishes, and the defendant reasonably believes, that the state has sufficient evidence to obtain a conviction. Ecker, 524 N.W.2d at 716-17 (citing State ex rel. Norgaard v. Tahash, 261 Minn. 106, 111-12, 110 N.W.2d 867, 871 (1961)). When a defendant enters 5

an Alford/Goulette plea or a Norgaard plea, it is particularly important that a factual basis for the plea be established. Ecker, 524 N.W.2d at 716-17. This is because in both cases the plea "is not supported by the defendant's admission of guilt." Theis, 742 N.W.2d at 649. And, in the case of an Alford/Goulette plea, the plea is contradicted by the

defendant's claim of innocence. Id. Although the Minnesota Supreme Court has not definitively stated what is required, as opposed to recommended, to establish an adequate factual basis for a Norgaard plea, two cases provide guidance on this issue: State v. Ecker, 524 N.W.2d 712, and State v. Theis, 742 N.W.2d 643. In Ecker, the supreme court suggested that a factual basis for a Norgaard plea is sufficiently established when the record clearly shows that in all likelihood the defendant committed the offense and that the defendant pleaded guilty based on the likelihood that a jury would convict. 524 N.W.2d at 717 (examining validity of Norgaard plea but suggesting that same standard applies to Alford/Goulette pleas). In Theis, the more recent opinion, the supreme court examined the validity of an Alford/Goulette plea but relied largely on Ecker. 742 N.W.2d at 64849. Theis clarified that an adequate factual basis consists of two related components: a strong factual basis and the defendant's acknowledgement that the evidence would be sufficient for a jury to find the defendant guilty beyond a reasonable doubt. Id. "The strong factual basis and the defendant's agreement that the evidence is sufficient to support his conviction provide the court with a basis to independently conclude that there is a strong probability that the defendant would be found guilty of the charge to which he pleaded guilty." Id. 6

The supreme court did not set forth a new rule in Theis; rather it restated and clarified earlier precedent. Id. at 649. Because Theis did not set forth any new

requirements, it is unnecessary to determine whether the supreme court intended for the opinion to apply to Norgaard pleas as well as Alford/Goulette pleas. The Theis opinion, however, is relevant to Norgaard pleas because it clarifies the two factual-basis components that are discussed in Ecker. See Theis, 742 N.W.2d at 649 (emphasizing strong factual basis and defendant's agreement that evidence is sufficient for conviction); Ecker, 524 N.W.2d at 717 (noting record showed that defendant believed jury would convict him and that he, in all likelihood, committed crime). Applying this caselaw to Williams's request for plea withdrawal, we conclude that Williams's Norgaard plea met the accuracy requirements. Williams was convicted of second-degree assault and terroristic threats. A person commits second-degree assault when she uses a dangerous weapon with the "intent to cause fear in another of immediate bodily harm or death; or . . . intentional[ly] inflict[s] or attempt[s] to inflict bodily harm upon another." Minn. Stat.

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