This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Shannon Ann Jerome,
State of Minnesota,
Filed February 8, 2000
Reversed; plea and conviction vacated
Clay County District Court
File No. K7-97-1670
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)
Mike Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and
Lisa Borgen, Clay County Attorney, Gregg S. Jensen, Assistant County Attorney, Clay County Courthouse, 807 North 11th St., Moorhead, MN 56560 (for respondent)
Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
After her probation was revoked and she began serving a 15-month sentence for felony perjury, appellant Shannon Ann Jerome filed this petition for postconviction relief. She seeks to vacate her perjury conviction and sentence on the grounds that her conduct in giving a false name under oath during her first appearance on a separate gross misdemeanor theft charge did not constitute perjury, because an oath was not required or authorized by law to be given during that proceeding. The district court denied her petition, and she appeals. Because appellant’s false statement was not made in a proceeding in which the statement was required or authorized by law to be made under oath, we reverse and vacate the plea and conviction.
After she was arrested for shoplifting a rug and some shotgun shells, appellant told police that her name was "Janelle Marie Miller." She was charged with gross misdemeanor theft in violation of Minn. Stat. § 609.52 (1996).
At appellant’s first appearance, the prosecutor claimed that the state had been unable to verify appellant’s identity. The trial court placed appellant under oath and asked her for her full and correct legal name. Appellant responded "Janelle Marie Miller." The court set bail at $1,000, but ordered that appellant could be released on her own recognizance if the state could verify her name and address.
Subsequent investigation revealed that appellant’s real name is "Shannon Ann Jerome." She was then charged with felony perjury in violation of Minn. Stat. § 609.48, subd. 1(1) (1996).
Appellant thereafter pleaded guilty to gross misdemeanor theft and felony perjury. Her sentences on both offenses were stayed and she was placed on probation. In May 1999, her probation was revoked after she failed to appear at appointments or otherwise cooperate with supervised probation. She is currently incarcerated on her 15-month perjury sentence.
In July 1999, appellant petitioned for postconviction relief, seeking to vacate her perjury conviction and sentence. This appeal is from the district court’s denial of her petition.
D E C I S I O N
When reviewing a postconviction order, our function is to determine whether the record sustains the court’s findings and whether the decision constitutes an abuse of discretion. Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997); Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995).
Appellant requests that her perjury conviction and sentence be vacated on the grounds that her guilty plea "lacks a factual basis to support the conviction" and her "conduct [therefore] did not constitute the crime of perjury" as a matter of law. Appellant thus makes a basic challenge to the accuracy of her plea, which may be raised in a postconviction proceeding. See State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (postconviction petition in which defendant challenges accuracy of plea); Beaman v. State, 301 Minn. 180, 183, 221 N.W.2d 698, 700 (1974) (guilty plea vacated in postconviction proceeding where inadequate factual basis existed for plea and defendant’s conduct not as serious as that charged).
Minn. R. Crim. P. 15.05, subd. 1 allows a defendant to withdraw a guilty plea after sentencing "upon a timely motion and proof to the satisfaction of the court that withdrawal of the plea is necessary to correct a manifest injustice." Id. If appellant establishes that she should not have been charged with perjury, her 18-month delay in bringing her petition for postconviction relief is largely irrelevant because reprosecution will not be an issue. Cf. Smith v. State, 596 N.W.2d 661, 664-65 (Minn. App. 1999) (to extent that passage of time may render reprosecution difficult, if not impossible, defendant’s delay in seeking to withdraw guilty plea may weigh against granting of petition for postconviction relief), review denied (Minn. Aug. 27, 1999).
The crime of perjury is defined as follows:
Whoever makes a false material statement not believing it to be true in any of the following cases is guilty of perjury and may be sentenced as provided in subdivision 4:
(1) In or for an action, hearing or proceeding of any kind in which the statement is required or authorized by law to be made under oath or affirmation[.]
Minn. Stat. § 609.48, subd. 1(1) (1996). Thus, "[a] false statement made under oath on an occasion when an oath is not required or authorized by law is not perjury." Minn. Stat. Ann. § 609.48 advisory comm. cmt. (West 1987).
The state insists that the judge in this case had inherent authority to administer an oath to appellant in order to make a necessary determination regarding the conditions for her release, citing Minn. Stat. § 358.10 (1998) ("judges * * * and all others authorized or required by law to act or report upon any matter of fact, shall have power to administer such oaths as they may deem necessary to the proper discharge of their respective duties"). However, the comments to the perjury statute make it clear that a judicial officer’s "general authority to administer oaths" is not enough; rather, the oath must be "one administered pursuant to, or as required or authorized by, some law." Minn. Stat. § 609.48 advisory comm. cmt. (West 1987) (quoting State v. McCarthy, 41 Minn. 59, 60, 42 N.W. 599, 600 (1889) (perjury conviction could not stand upon false statements made in loan application, even though those statements were made under oath to justice of peace)).
In State v. Larson, 171 Minn. 246, 249-50, 213 N.W. 900, 901 (1927), the supreme court reversed a perjury conviction that was based on a defendant’s false statements during sentencing. The supreme court concluded that the oath given by the trial court was "merely gratuitous" and not required or authorized by law because the trial court was not following any statutory procedure when it placed the defendant under oath to question him. The supreme court referred to a statute then in effect that allowed a court to hear "testimony of witnesses examined in open court" when either party claimed aggravating or mitigating circumstances existed. Id. (citing 1923 Gen. Stat. § 10724). The court in Larson, however, did not follow the procedure outlined in Gen. Stat. § 10724. Thus, the supreme court concluded that the oath administered by the trial court was not authorized by this statute and was "merely gratuitous." Larson, 171 Minn. at 249, 213 N.W. at 901.
Larson illustrates that something more than the inherent authority of a trial court to administer oaths is necessary to support a perjury conviction. To support a perjury conviction, there must be some underlying law that requires or authorizes statements to be made under oath, apart from a trial court’s inherent authority to administer oaths under Minn. Stat. § 358.10. Cf. State v. Healy, 521 N.W.2d 47, 50 (Minn. App. 1994) (upholding perjury conviction based on oath administered to group of prospective jurors, concluding that oath authorized under Minn. R. Crim. P. 26.02, subd 4(3)(c), which requires jurors to be drawn and sworn separately before oral examination), review denied (Minn. Oct. 27, 1994).
In this case, appellant made the false statement at her first appearance under Minn. R. Crim. P. 5.01-.06. During a first appearance, a judge is directed to "set and advise the defendant of the conditions under which the defendant may be released." Minn. R. Civ. P. 5.05. This determination must be made on the basis of "available information," which may be acquired through an investigation of an accused’s background either "prior to or contemporaneously with the defendant’s appearance before the court, judge, or judicial officer." Minn. R. Crim. P. 6.02. The rules further warn that any information obtained from a defendant "shall not be used against him at trial." See Minn. R. Crim. P. 6.02, subd. 3 ("[a]ny information obtained from the defendant in response to an inquiry during the course of [a pre-release] investigation and any evidence derived from such information, shall not be used against the defendant at trial."). While these rules may be read to allow an investigation into an accused’s background, nothing in these rules requires or "authorizes" any statements made by a defendant during this investigation to be made under oath.
Unlike the statute discussed in Larson, the rules involved here do not speak of "testimony" or "examination" of witnesses. Although it was within the trial court’s inherent authority to place appellant under oath, that oath was not required or authorized by law for purposes of the perjury statute.
Finally, appellant admits that she was guilty of giving a false name to a court official, a misdemeanor under Minn. Stat. § 609.506, subd. 3 (1998). This statute imposes a criminal sanction for giving a peace officer or judge a false name and does not require an oath. Given the facts of this case, charging appellant with felony perjury rather than the corresponding misdemeanor was wholly disproportionate to her conduct and served little public purpose.
The district court’s denial of appellant’s petition for postconviction relief is reversed, and the plea and conviction are vacated.
Reversed; plea and conviction vacated. The entire text of that statute is as follows:
After a plea or verdict of guilty, in a case where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily, at a specified time, and upon such notice to the adverse party as it may direct. Such circumstances shall be presented by the testimony of witnesses examined in open court.1923 Gen. Stat. § 10724.