IN COURT OF APPEALS
Rickford Rehmann Munger, petitioner,
Filed August 28, 2007
Reversed and remanded
Olmsted County District Court
File No. K9-04-3675
John M. Stuart, State Public Defender, Richard Schmitz,
Assistant State Public Defender,
Lori Swanson, Attorney General, 1800
Mark A. Ostrem, Olmsted County Attorney, David F. McLeod,
Assistant County Attorney,
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Parker, Judge.
Under Minn. Stat. § 609.582, subd. 1(a) (2004), the state must show as an element of the offense of first-degree burglary that a defendant entered a building with the intent to commit a crime within the building.
Appellant challenges the district court’s summary denial of his petition for postconviction relief, arguing that he should have been allowed to withdraw his guilty plea because it was not supported by an adequate factual basis and was therefore not accurately made. Because Minn. Stat. § 609.582, subd. 1(a) (2004), requires a showing that appellant intended to commit a crime while within the building, a fact that was not established during appellant’s plea hearing, we conclude that it was an abuse of the district court’s discretion to deny appellant’s request to withdraw his guilty plea.
the night of September 21, 2004, Rochester Police Officer Lou responded to a
call that originated from an apartment complex at
Police Officer Thompson, who also responded to the call, saw appellant Rickford
Rehmann Munger in the 1400 block of
Appellant was subsequently charged with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (2004). After initially pleading not guilty, appellant later agreed to plead guilty in exchange for the state’s promise not to sentence him as a career offender and to recommend a guideline sentence of 60 months instead. During the plea hearing, the following testimony was given to establish a factual basis for appellant’s guilty plea:
BY [APPELLANT’S ATTORNEY]:
[Appellant], on September 21, 2004 at approximately
10:00 in the evening you were in the city of
And now, you lived on
A. Yes, I did.
And at approximately 10:00 or sometime there before you
walked down the street to some apartment building at 1533 and
And you looked into a window on the first floor of the
apartment building at
Q. And in the process of looking into it you realized the window was opened and you reached in and moved the curtain, is that right?
Q. And you did that for the purpose of being able to look in and invade the privacy of the resident of the apartment, isn’t that true?
. . . .
BY [STATE’S ATTORNEY]:
Q. And you agree that the - - your entry, the sticking in of your hand and moving the curtain was for the purpose of committing a crime, is that correct?
On May 18, 2005, the district court sentenced appellant to 60 months in prison.
On May 26, 2006, appellant brought a petition for postconviction relief, arguing that he should be allowed to withdraw his guilty plea because it was “not supported by an adequate factual basis.” Specifically, appellant argued that he could not be guilty of first-degree burglary “because the [b]urglary statute requires the intent to commit a crime within the residence and [appellant] only admitted facts that he intended to commit the crime of [i]nterference with [p]rivacy by window peeping outside the residence.” The district court, however, summarily denied appellant’s petition for postconviction relief, concluding that “[w]hile most burglary cases undoubtedly involve commission or an intent to commit a crime within the building, the statute makes no such geographic requirement.”
This appeal follows.
Appellant contends that it was an abuse of discretion for the district court to deny his request to withdraw his guilty plea, arguing that there was not an adequate factual basis for his plea of guilty to the charge of first-degree burglary because he did not admit to intending to commit a crime within the building.
Under Minn. Stat.
§ 590.04, subd. 3 (2004), a petitioner seeking postconviction relief has the
burden of establishing by “a fair preponderance of the evidence” the facts
alleged in the petition. We review “a
postconviction proceeding only to determine whether there is sufficient
evidence to sustain the postconviction court’s findings, and a postconviction
court’s decision will not be disturbed absent an abuse of discretion.” Hodgson
v. State, 540 N.W.2d 515, 517 (
a guilty plea to be valid, it must be accurate, voluntary, and intelligent
(i.e., knowingly and understandingly made).”
Sykes v. State, 578 N.W.2d
807, 812 (Minn. App. 1998) (quotation omitted), review denied (Minn. July 16, 1998). “Once a guilty plea has been entered, there
is no absolute right to withdraw” that plea.
Shorter v. State, 511 N.W.2d
743, 746 (
Appellant argues that his guilty
plea was not accurate. For a guilty plea
to be accurate, “[a] proper factual basis must be established.” State
v. Ecker, 524 N.W.2d 712, 716 (
Appellant was charged with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (2004), which provides:
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree and may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $35,000, or both, if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building.
Thus, in order to prove a violation
of section 609.582, subdivision 1(a), the state must show that: (1) appellant
entered a building without consent and with the intent to commit a crime and
(2) the building is a dwelling and another person, who was not an accomplice,
was present when appellant entered. See 10A
At the plea hearing, appellant admitted that he reached his hand into an open window and moved the curtain with his hand for the purpose of committing a crime (i.e., interference with privacy). But appellant now argues that the factual basis for his guilty plea was inadequate because he did not admit to entering the building with the intent to commit a crime within the building. The state contends that section 609.582, subdivision 1(a), does not require the state to show that appellant intended to commit a crime within the building, and thus appellant’s intent to commit interference with privacy satisfies the independent crime aspect of the burglary statute.
The district court agreed with the state, consequently denying appellant’s postconviction petition and concluding that “[t]he statutory language does not support” appellant’s argument that the intended crime under the statute “must be one that would be committed ‘within the dwelling.’” Specifically, the district court concluded that “[w]hile most burglary cases undoubtedly involve commission or an intent to commit a crime within the building, the statute makes no such geographic requirement” and there is “no policy reason to distinguish between unconsented-to entries that facilitate crimes outside versus inside a residence.”
“Construction of a
criminal statute is a question of law subject to de novo review.” State
v. Colvin, 645 N.W.2d 449, 452 (
In support of his
position, appellant relies on the Minnesota Supreme Court’s decisions in State v. Larson, 358 N.W.2d 668 (
In Larson, the supreme court held that “the
state has to do more than establish an intent to commit the crime of trespass
in order to obtain a burglary conviction or a conviction of possessing burglary
tools.” 358 N.W.2d at 670. Rather, “[t]he intent must be to commit some
independent crime after entering the building illegally.”
Similarly, in Colvin, the supreme court held that a
defendant’s violation of a no-entry provision of an order for protection was insufficient
to establish the independent crime element of burglary. 645 N.W.2d at 453-54. Specifically, the supreme court reasoned that
the “violation of a no-entry provision of an OFP, like trespass, is excluded
from the crimes that can be the bases for the independent crime element of
burglary,” as “[b]oth offenses are designed to protect the interests that are
invaded by the unauthorized entry that the burglar makes” and are both
“complete upon entry.”
The district court determined that Larson and Colvin were not entirely relevant because they did “not address where the ‘independent crime’ required for burglary occurs,” and instead, “deal[t] with whether there has been an independent crime at all.” We agree. The real issue here is whether section 609.582, subdivision 1(a), requires, as an element of the offense of first-degree burglary, a showing that appellant intended to commit a crime within the building. Appellant argues that it does, while the state disagrees. Nevertheless, we construe section 609.582 as imposing a requirement that, to be convicted of first-degree burglary under the first part of the statute, a person must be shown to have intended to commit a crime within the building.
Our interpretation of the statute is initially supported by a reasonable reading of its plain language. For instance, the initial language of the statute, “[w]hoever enters a building,” suggests that the crime intended must occur within the building. In addition, our interpretation of the first phrase of the statute is consistent with the second phrase of the statute and therefore avoids conflicting interpretations. The first phrase of section 609.582 states “[w]hoever enters a building without consent and with intent to commit a crime . . . commits burglary in the first degree,” while the second phrase states “[whoever] enters a building without consent and commits a crime while in the building . . . commits first-degree burglary.” But it would be inconsistent to conclude that a person who has committed a crime is guilty of first-degree burglary only if they committed the crime while within the building yet a person who intends to commit a crime can be found guilty of first-degree burglary even if they did not intend to commit the crime within the building.
interpretation of the statute is supported by the common-law definition of
burglary, which generally provided that a person charged with burglary must
have intended to commit a crime within the dwelling place of another. See
Black’s Law Dictionary 191 (7thed. 1999) (defining “burglary”
as “[t]he common-law offense of breaking and entering another’s dwelling at
night with the intent to commit a felony”).
LaFave confirms that at common law “[t]he intent must be to commit a
felony within the dwelling house.” 3
Because we conclude that section 609.582 is most properly interpreted to require that a person must enter a building with the intent to commit a crime while in the building in order to be convicted of first-degree burglary, and because appellant did not indicate at the plea hearing that he entered the building (i.e., stuck his hand through the window) with the intent to commit a crime while in the building, but instead admitted only that he entered the building to facilitate the commission of a crime outside the building (i.e., interference with privacy), we conclude that the factual basis did not adequately support appellant’s guilty plea. Accordingly, it was an abuse of discretion for the district court to deny appellant’s postconviction petition to withdraw his guilty plea, when the plea was not accurate and the district court’s refusal therefore manifestly unjust.
Because we conclude that in order to be convicted of first-degree burglary under Minn. Stat. § 609.582, subd. 1(a) (2004), a person must enter a building with the intent to commit a crime within the building, and because appellant did not admit to entering a building with the intent to commit a crime other than interference with privacy, a crime that occurred outside the building, it was an abuse of discretion for the district court to deny appellant’s petition to withdraw his guilty plea.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
a preliminary matter, the state argues that “by entering a plea of guilty,
rather than proceeding to either a trial or complying with the procedure set
forth in State v. Lothenbach, 296
N.W.2d 854 (Minn. 1980), [appellant] waived any and all nonjurisdictional
defects including challenging either the district court’s ruling regarding
probable cause or the sufficiency of the evidence.” Indeed, the Minnesota Supreme Court has
recognized that the Lothenbach
procedure may be used to preserve pretrial decisions for appellate review. State
v. Busse, 644 N.W.2d 79, 88-89 (
There is no question that, under
 Because we reverse on the accuracy of appellant’s guilty plea, we do not address appellant’s pro se argument that his guilty plea was also involuntarily and unintelligently made.