This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Elke Gisela Fisher,





State of Minnesota,



Filed May 30, 2000


Huspeni, Judge*



Ramsey County District Court

File No. K298435




Harlan M. Goulett, 700 Lumber Exchange Bldg., 10 South 5th Street, Minneapolis, MN 55402 (for appellant)


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


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)



            Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Huspeni, Judge.

U N P U B L I S H E D  O P I N I O N


            Appellant seeks review of an order denying postconviction relief, claiming her guilty plea to an amended complaint was invalid because she was not informed of her double jeopardy rights before withdrawing her guilty plea on the original complaint and pleading guilty to the amended version.  Because we see no error in dismissal of appellant’s postconviction petition, we affirm.


            Appellant Elke Fisher was charged under Minn. Stat. § 609.342, subd. 1(g) (1996), with one count of first-degree criminal sexual conduct involving her adopted son, who was under the age of sixteen at the time.  The son was born on April 4, 1978; the sexual conduct occurred between 1989 and 1997.  

The original complaint, filed on February 3, 1998, described conduct occurring “on or between 1989 and April 4, 1994.”  On March 20, 1998, Fisher pleaded guilty as charged.  A violation of Minn. Stat. § 609.342, subd. 1(g), is a Level VIII offense under the Minn. Sent. Guidelines, and all parties understood the presumptive sentence to be 86 months.  There is no indication in the record that an adjudication of guilt was entered at the time the plea was taken.  Sentencing was set for May 8, 1998.

At the sentencing hearing on May 8, the state moved to amend the charge to include only conduct that occurred between August 1, 1989 and April 4, 1994.  The motion resulted from the prosecutor’s discovery after the March 20 plea, that because the charge included conduct from before August 1, 1989, the guidelines sentence would be 43 rather than 86 months.  The amended complaint did not change the offense charged; it merely shortened the time period of the alleged conduct.  Fisher’s counsel did not oppose the motion to amend, and conceded that, since there had not yet been a conviction, jeopardy had not attached.  Fisher was sentenced pursuant to the amended complaint.  The court denied Fisher’s motion for a downward departure and sentenced her to 86 months.

Shortly after the May 8 sentencing, Fisher’s attorney notified the district court that Fisher had never been arraigned on the new complaint and had never pleaded guilty to it.  A hearing was held on May 29, at which time the district court stated that Fisher was entitled to be arraigned on the amended charge, and granted Fisher’s motion to vacate the judgment.  Fisher then entered a guilty plea to the amended charge.  At a June 12, 1998 sentencing hearing, the court denied Fisher’s motion for a departure and sentenced her to 86 months.  Fisher did not seek review by direct appeal.

On July 14, 1999, with new counsel, Fisher filed a petition for postconviction relief, seeking to have her conviction vacated.  She argued that the court had accepted her plea to the original complaint and adjudicated her guilty on March 20, 1998 and, because the state’s amendment came after she had been convicted, she should have been advised of her “absolute right to stand on the March 20, 1998 conviction, along with its lower guidelines sentence.”  Fisher claimed that on May 29, by moving to vacate the faulty May 8 guilty plea and sentence without insisting on the validity of the March 20 guilty plea, her attorney waived her right to protection from double jeopardy without her knowledge or consent.  Thus, Fisher claimed, her final guilty plea was not voluntary, knowing, and intelligent.

The district court denied Fisher’s postconviction petition without a hearing, determining that because she was never adjudicated guilty on the original complaint, the record conclusively showed she was not entitled to relief.  On appeal, Fisher requests reversal of the district court’s denial of postconviction relief and remand for sentencing based on the original complaint and guilty plea.



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; Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989) (noting defendant does not have absolute right to withdraw plea, but must show manifest injustice); Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998) (stating a manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent). 

Fisher had the burden of establishing the facts alleged in her petition by a fair preponderance of the evidence.  Minn. Stat. § 590.04, subd. 3 (1996).  The district court, in denying Fisher’s postconviction petition without a hearing, rejected the argument that her right to be free from double jeopardy was violated because she had already been adjudicated guilty of a crime before amendment of the complaint.

The Double Jeopardy Clauses of the United States and Minnesota Constitutions (U.S. Const. amend. V.; Minn. Const. art. I, § 7) protect criminal defendants from abuses including “a second prosecution for the same offense after conviction.”  State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998).  Thus, the critical issue here is whether there was a conviction, an adjudication of guilt, under the original charge.  Absent an adjudication, double jeopardy protection is not invoked.  Our review of the record convinces us that the March 20 guilty plea did not result in an adjudication of guilt.

In a scholarly brief that traces the development of individual rights under the U.S. Constitution, Fisher argues that the Double Jeopardy Clauses of both the U.S. and Minnesota Constitutions do not merely forbid conviction or punishment, but repeated efforts to convict or punish, for the same crime.  She cites Humes in support of this argument, and claims that the Double Jeopardy Clauses protected her “expectation of finality” at the time of her original guilty plea, and thereby barred her later plea and sentence under the amended complaint.  Id. at 320-21 (quoting United States v. DiFrancesco, 449 U.S. 117, 136, 101 S. Ct. 426, 437 (1980). 

We do not find support in Humes for the argument Fisher proposes.  In Humes, the defendant had been convicted and was serving a prison sentence when he appealed an order that added a statutorily mandated conditional release term.  Humes, 581 N.W.2d at 318-19.  The court held that correction of the unauthorized sentence did not violate the defendant’s due process rights and double jeopardy protections.  While noting the Supreme Court’s discussion of expectations of finality in DiFrancesco, the Humes court described that discussion as having “raised some question about the role of an individual’s expectation of finality in double jeopardy determinations.”  Id. at 321.  In this case, Fisher was not in prison; she had not yet been sentenced.  At the time of her original guilty plea[1] she had no legitimate “expectations of finality” requiring double jeopardy protection.  Invoking the concept of “expectations of finality” to grant relief under the circumstances of this case would constitute an unwarranted extension of that concept.

Fisher also argues that her “expectation of finality” is protected by the Due Process Clauses (U.S. Const. amends. V, XIV), which “ensure that sentencing proceedings observe the standards of fundamental fairness essential to justice.”  Humes, 581 N.W.2d at 320, 321 nn.21 & 22.  We find no abuse of fundamental fairness in the district court’s sentencing of Fisher.

Both parties cite Minn. R. Crim. P. 17.05, which permits amendment of a complaint “at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.”  The state urges that amendment of the original complaint was proper because it did not allege any new or different offense, but merely limited the charged offense to a shorter time period.  The state also argues that the amendment did not cause Fisher any prejudice to her ability to defend against the charge against her.  Fisher responds that the amendment did prejudice her substantial rights because it doubled the presumptive sentence from 43 to 86 months.  We see no merit in Fisher’s reliance on rule 17.05.  At all times during the proceedings in this case, all parties assumed that the guidelines sentence would be 86 months.  Fisher was fully aware of the basis underlying the amendment of the complaint; she did not oppose that amendment.[2]  She knew when she moved to vacate her March 20 plea, when she was sentenced to 86 months at the May 8 hearing, when her attorney notified the court that she had never been arraigned on the amended complaint and the May 8 judgment was vacated, when she pleaded guilty on June 12 and her motion for departure was denied and she was sentenced to 86 months, that what all parties had relied on during the entire proceedings had, in fact, come to pass.


Finally, Fisher argues the district court’s failure to grant a hearing on the petition for postconviction relief is an independent ground for reversal.  We disagree.  A postconviction court may deny relief without a hearing when the petition for relief fails to allege facts that would entitle petitioner to relief.  Minn. Stat. § 590.04, subd. 1. 

An evidentiary hearing is not required unless there are material facts in dispute which must be resolved to determine the postconviction claim on its merits.  The petitioner’s allegations must be more than argumentative assertions without factual support.  A petitioner has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case. 


Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997) (citations omitted). 

Fisher’s petition does not allege any facts entitling her to relief; rather, it contains only the legal conclusion that Fisher had been adjudicated guilty before the complaint was amended.  This conclusion is not supported by the record and raises no factual dispute for an evidentiary hearing.  There is adequate support in the record for the district court’s conclusion that “[t]he files and records conclusively show that [Fisher was] not entitled to relief and thus [was] not entitled to an evidentiary hearing.” 



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.

[1]  Fisher’s argument that Minn. R. Crim. P. 15.07 required the district court to accept the original plea absent a showing of manifest injustice is misplaced.  Minn. R. Crim. P. 15.07 specifically applies to guilty pleas to lesser offenses; Fisher pleaded guilty to the charged offense.

[2]  There is no indication in the record before us that Fisher has alleged ineffective assistance of counsel.