This opinion will be unpublished and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

CX-99-1430

 

James Lee-Michael Lundquist, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed March 28, 2000

Affirmed

Willis, Judge

 

Ramsey County District Court

File No. K8972745

 

Mark D. Nyvold, 1030 Minnesota Building, 46 East 4th Street, St. Paul, MN  55101 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN  55102 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D  O P I N I O N

WILLIS, Judge

            Appellant James Lee-Michael Lundquist challenges a postconviction order denying his petition to withdraw guilty pleas to second-degree murder and second-degree assault, arguing that the pleas lacked an adequate factual basis.  We affirm.

FACTS

On August 1, 1997, at approximately 1:30 a.m., appellant was driving on West Seventh Street in St. Paul.  Appellant, then age 16, was accompanied by two other juveniles, O.M. and A.N.  A car driven by Lauren Matton and carrying a passenger, Laura McPhee, pulled alongside appellant’s car.   Appellant testified that Matton yelled and cursed at him and then displayed a gun.  There is no corroborating evidence that Matton had a gun.  Appellant testified that he may have cut off Matton in traffic just before the confrontation.  Appellant’s and Matton’s vehicles then entered westbound I-94.

            Appellant testified that he thought Matton might shoot him, so he pointed his gun, which had a laser sight, at Matton’s car.  Appellant further testified that he then squeezed the gun’s handle, showing the laser beam on Matton’s window, so Matton would know that appellant was armed.  The gun discharged, striking and killing McPhee.    

Appellant testified that O.M. hit his hand causing the gun to go off and that he lied to the police, telling them that it “just went off” because he did not want to be known as a “snitch.”  He admitted he knew that O.M. would testify that he did not hit appellant’s hand. 

Appellant was charged with second-degree murder while committing a drive-by shooting, and second-degree assault.  In November 1997, appellant pleaded guilty to  the charges and was sentenced to 306 months in prison.  In May 1999, appellant filed a petition for postconviction relief, alleging that his guilty pleas lacked an adequate factual basis and that it would be a manifest injustice to allow his pleas to stand.  The district court denied appellant’s motion for postconviction relief.  This appeal followed.

D E C I S I O N

A defendant may withdraw a guilty plea after sentencing if withdrawal of the plea is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1.  A defendant who has entered a guilty plea does not have the absolute right to withdraw the plea.  See Joon Kyu Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). Whether withdrawal is necessary to correct manifest injustice is left to judicial discretion.  Minn. R. Crim. P. 15.05, subd. 1.  The burden of proof is on the petitioner in a postconviction proceeding to establish the facts alleged in his petition by a fair preponderance of the evidence.  Minn. Stat. § 590.04, subd. 3 (1998).  This court will uphold a district court’s decision on postconviction relief absent an abuse of discretion.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).  The scope of this court’s review is limited to whether there is sufficient evidence to sustain the findings of the postconviction court.  Id.

I.          Second-Degree Murder

Appellant pleaded guilty to second-degree murder while committing a felony drive-by shooting.  A person who “causes the death of a human being while committing or attempting to commit a drive-by shooting” is guilty of second-degree murder.  Minn. Stat. § 609.19, subd. 1(2) (1996).  A drive-by shooting is committed when a person, who, “while in * * * a motor vehicle, recklessly discharges a firearm at or toward a person [or] another motor vehicle.” Minn. Stat. § 609.66, subd. 1e(a) (1996).  Appellant argues that because he did not admit to discharging a firearm recklessly, an adequate factual basis is lacking for his plea of guilty to this offense.                                                                                                                                                                            

There are three prerequisites to a valid guilty plea:  It must be accurate, it must be voluntary, and it must be knowingly and understandingly made.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  Appellant challenges only the accuracy of his plea.  An accurate plea protects the defendant from pleading guilty to an offense more serious than that of which he could be convicted if he were to go to trial.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  A proper factual basis must be established on the record for a plea to be accurate.  Ecker, 524 N.W.2d at 716.

During his plea hearing, appellant testified that (1) while he was driving, he showed Matton a nine-millimeter, laser-sighted gun to let Matton know that he was armed; (2) he pointed the gun at Matton’s window and squeezed the handle so that a laser beam would show on Matton’s window; (3) while he knew the gun was loaded, he did not know there was a bullet in the chamber; (4) he did not pull the trigger to discharge the gun; rather, O.M. hit his hand and the gun went off; (5) there was no question that the bullet from his gun killed McPhee; and (6) he agreed that pointing a loaded gun at a car is reckless.

Appellant argues that because he admitted only to pointing the gun recklessly, and not to discharging the gun recklessly, an adequate factual basis for his plea of guilty to second-degree murder is lacking.  But the defendant’s admission to each element of an offense is not required to establish an adequate factual basis for a guilty plea.  Although an adequate factual basis is preferably established through the defendant’s own testimony, that is not the exclusive method for satisfying the factual-basis requirement.  Kochevar v. State, 281 N.W.2d 680, 686 (Minn. 1979).  A factual basis can be established by a showing of the state’s proposed evidence.  See id. (factual basis for plea supplied by prosecutor’s summary of state’s evidence); Holscher v. State, 282 N.W.2d 866, 867 (Minn. 1979) (factual basis for plea supplied by prosecutor’s summary of state’s evidence); State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977) (factual basis for plea supplied by defense counsel’s summary of state’s proposed evidence); State v. Fischer, 292 Minn. 453, 453-54, 193 N.W.2d 819, 820 (1972) (factual basis for plea provided by proposed evidence where defendant had no recollection of crime).  Here, appellant admitted that he recklessly pointed the gun at Matton’s car.  And the state’s proposed evidence showed that appellant discharged the gun recklessly:  (1) appellant told the police that he had the hammer cocked and it “just went off”; and (2) O.M.’s testimony would be that he did not hit appellant’s hand causing the gun to discharge.  

            Arguably, even without the evidence the state proposed to introduce, the acts to which appellant admitted show a reckless discharge of his gun rather than a mere reckless pointing.  “Reckless” refers to the risk created by conduct as well as the consequences that flow from the conduct.  State v. Cole, 542 N.W.2d 43, 52 (Minn. 1996).  Appellant admitted that he (1) pointed a loaded gun at the occupants of another vehicle while driving on an interstate highway, (2) was in control of the firearm, and (3) squeezed the handle to display a laser beam.  That the firearm “just went off” is the logical and probable consequence of appellant’s admitted conduct.  

Finally, appellant made no claim of innocence and acknowledged that there was a “substantial likelihood” that he would be found guilty of second-degree murder if the case went to trial.  A defendant may plead guilty based on a likelihood that a jury would convict him without personally expressing any requisite intent or admitting to the essential elements of the crime.  Ecker, 524 N.W.2d at 717.

The record shows that there was an adequate factual basis for accepting appellant’s plea of guilty to second-degree murder and withdrawal of the plea is not necessary to correct a manifest injustice.

II.        Second-Degree Assault

            Appellant also pleaded guilty to assaulting Matton with a dangerous weapon under Minn. Stat. § 609.222 (1996) (second-degree assault).  An assault is an act done with intent to cause fear in another of immediate bodily harm or death.  Minn. Stat. § 609.02, subd. 10(1) (1996).   

At the plea hearing, appellant testified that (1) he pointed his gun at Matton and squeezed the handle so that the gun’s laser beam would show on Matton’s window; (2) he intended to let Matton know that he had a weapon; and (3) he agreed that this action would have the effect of frightening Matton.  Appellant argues that because he did not admit that he intended to cause Matton to fear immediate bodily harm or death, his plea lacks an adequate factual basis.  Appellant cites no cases in support of his argument.  And the Minnesota Supreme Court has stated that intent to commit assault and intent to point a gun are entirely consistent intents.  State v. Cole, 542 N.W.2d 43, 51 (Minn. 1996).   Here, appellant demonstrated his intent to cause fear in Matton by intentionally pointing a gun at him.  See id. (stating that defendant’s intent to cause fear in victim was “carried out” by intentionally pointing a gun at her). Thus, there was an adequate factual basis for accepting appellant’s plea of guilty to second-degree assault and withdrawal of the plea is not necessary to correct a manifest injustice.

III.       Pro Se Brief

            Appellant raises several additional issues in his pro se supplemental brief.  But the only issues presented to the district court in his petition for postconviction relief are that his pleas to second-degree murder and second-degree assault lacked an adequate factual basis.  It is well established that on appeal from an order denying postconviction relief, only issues litigated in the postconviction court may be raised.  Hirt v. State, 309 Minn. 574, 575, 244 N.W.2d 162, 162 (1976).  Therefore, the additional issues appellant raises in his pro se brief are not properly before this court. 

            Affirmed.