This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Harvey Kelly Richardson,




Filed August 22, 2000


Schumacher, Judge


Dakota County District Court

File No. K5981348



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


James C. Backstrom, Dakota County Attorney, Kathryn M. Keena, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Harvey Kelly Richardson challenges his conviction of fourth-degree criminal sexual conduct, arguing that the trial court erred in denying his motion to withdraw his guilty plea.  We affirm.


            On January 2, 1998, C.A. reported to the West St. Paul Police Department that in October 1997 at the age of 15 she had sex with Richardson.  In an interview with investigator Sherm Ellison, Richardson admitted to sexual intercourse with C.A. but did not know she was 15 years old.  On April 17, 1998, Ellison taped a phone conversation with Shari Cox, an acquaintance of C.A. and Richardson.  Cox stated that she had told Richardson that C.A. was 15 and to stay away from her.

The state charged Richardson with fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(b), which provides that a person who engages in sexual contact is guilty of the crime where

the complainant is at least 13 but less than 16 years of age and the actor is more than 48 months older than the complainant or in a position of authority over the complainant.  * * *  Consent by the complainant to the act is not a defense.  In any such case, it shall be an affirmative defense which must be proved by a preponderance of the evidence that the actor believes the complainant to be 16 years of age or older[.]


Minn. Stat. § 609.345, subd. 1(b) (1996).

            On September 14, 1999, Richardson entered an Alford plea.  See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970) (accused may voluntarily, knowingly, and understandingly plead guilty even if plea contains protestation of innocence, when intelligently conclude that interests require guilty plea and record strongly evidences guilt).  His counsel explained that although Richardson continued to maintain that he thought C.A. was older, Richardson believed the Alford plea was in his best interest because of the risks of trial—he would have to take the stand to maintain his affirmative defense and the state planned to file an amended complaint for third-degree criminal sexual conduct if he did not plead.  On questioning from counsel, Richardson indicated that he understood the offense and the plea.  The district court accepted the Alford plea and ordered a pre-sentence investigation.

            On December 28, 1999, Richardson filed a motion to withdraw his Alford plea. The motion included a transcript of a taped phone conversation that a public defender investigator had with Cox, in which Cox stated that she told Richardson that C.A. was 15 years old after "the first time that they were together."  The district court denied the motion, rejecting the argument that, where a defendant has maintained his innocence, a mistaken belief as to the strength of the state's case entitles him to withdraw his plea.  Richardson was sentenced in accordance with the plea agreement.


            The ultimate decision to allow a defendant to withdraw his guilty plea before sentencing is left to the sound discretion of the trial court, "and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion."  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

Two standards for withdrawal of a guilty plea are set forth in Minn. R. Crim. P. 15.05.  Under the first standard, an accused has the right to withdraw a guilty plea after sentencing to correct a "manifest injustice":

The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. 


Minn. R. Crim. P. 15.05, subd. 1.  Manifest injustice occurs if the plea "is not accurate, voluntary, and intelligent."  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  Under the second standard, a court has discretion to allow withdrawal of a plea before sentencing,

if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea. 


Minn. R. Crim. P. 15.05, subd. 2.

            Richardson argues that his plea was not knowing and intelligent because he was unaware that the state did not have a strong case.

A plea is intelligent if the defendant understands the charges, his or her rights under the law, and the direct consequences of pleading guilty to the charged offense.


State v. Washburn, 602 N.W.2d 244, 246 (Minn. App. 1999) (citing Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998)).  There is nothing in the record to suggest that Richardson did not understand the charge, his rights, and the consequences of pleading guilty.  Indeed, the transcript of the guilty plea hearing indicates that Richardson understood the nature of the charges, his right to trial, and the consequences of the plea.  He knew that if he went to trial he would have to take the stand to support his affirmative defense.  He was also aware that the state planned to charge him with third-degree criminal sexual conduct if he did not plead.  Richardson's plea was accurate, voluntary and intelligent.

            Richardson urges that his unwavering assertion of innocence, coupled with his mistaken belief that the state had a stronger case, provides a basis for withdrawal under either standard.  But Richardson did not establish that withdrawal is necessary to correct a manifest injustice.  Richardson also claims withdrawal should be allowed under the fair-and-just standard.  The state, however, relying on State v. Tuttle, 504 N.W.2d 252 (Minn. App. 1993), argues that mistaken belief regarding the strength of the state's case does not permit withdrawal under the fair-and-just standard.

In Tuttle, this court ruled that a victim's recantation of criminal sexual conduct charges, and the defendant's subsequent claim of innocence, did not entitle the defendant to withdraw a guilty plea on grounds that the plea was based on mistaken apprehension of strength of state's case.  Id. at 255-56.  The court explained:

Tuttle is not seeking reversal of a jury's verdict; his guilt was established by "his own plea of guilty, which was based on an admission of guilt and on a statement that he was pleading guilty because he was guilty."  State v. Risken, 331 N.W.2d 489, 490 (Minn. 1983).  The record presents a person who acknowledged his guilt, was remorseful and actively wanted treatment to learn to control his impulses.


Tuttle, 504 N.W.2d at 257.

            The obvious distinction between Tuttle and the present case is that here the guilty plea was an Alford plea.  This is not a case where the defendant admits his guilt and then, learning that the state's evidence was weaker than believed, suddenly changes his mind.  Rather, Richardson has consistently maintained that he did not know that C.A. was only 15 years old.  Under Tuttle, mistaken apprehension of strength of state's case does not entitle withdrawal where the defendant has acknowledged guilt.  In this case, however, Richardson has not acknowledged guilt.

            Richardson also contends that the state has failed to demonstrate that it would suffer any prejudice.  The state suggests it is somehow prejudiced because Cox has since recanted her testimony.  Rule 15.05, subdivision 2, however, requires the court to consider "any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea."  Any change in Cox's testimony is not by reason of the prosecutor's actions in reliance upon the plea.

            Under the fair-and-just standard, the "ultimate decision is left to the sound discretion of the [district] court" and this court will reverse the district court "only in the rare case in which [we] can fairly conclude [it] abused its discretion."  Tuttle, 504 N.W.2d at 256 (brackets in original) (citing Kim, 434 N.W.2d at 266).  This is not such a rare case.  We conclude that the district court did not abuse its discretion in denying the motion to withdraw the guilty plea.