This opinion will be unpublished and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

C6-00-122

 

 

Tammy Kay Ewing, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed October 12, 2000

Reversed

Schumacher, Judge

Dissenting, Willis, Judge

 

Hennepin County District Court

File No. 97096973

 

 

Phillip S. Resnick, Scott J. Seiler, Resnick & Seiler, P.L.L.P., 1925 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

 

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


U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge

Appellant Tammy Kay Ewing pleaded guilty to felony murder and was sentenced to 120 months in prison.  She then moved for postconviction relief, asking to be allowed to withdraw her guilty plea.  The district court denied her motion, but the court of appeals reversed and remanded for an evidentiary hearing.  After an evidentiary hearing, the district court again denied her motion.  We reverse.

FACTS

On September 29, 1997, Douglas Welch and two women went to Ewing's apartment.  After yelling at Ewing and pointing a gun at her, Welch told Ewing to put the gun in her purse.  Welch then told Ewing to call a telephone number on a piece of paper Welch gave her.  A woman answered, and Welch took the phone and screamed obscenities at her.  After the call, Welch left the apartment, telling Ewing to follow him.  She did so, in a separate car, arriving at an alley where Welch was arguing with Ilka Mondane.  Welch called Ewing from her car, and she came.  Welch took the gun from Ewing's purse and waved it at Mondane.  Ewing told him that what he was getting ready to do was not worth it, but Welch told her to shut up and leave.  As Ewing returned to her car, she heard a shot.  Welch had killed Mondane.

Ewing was charged with first-degree and intentional second-degree murder.  She eventually agreed to plead guilty to unintentional second-degree murder (felony murder).  After she was sentenced, however, she brought a motion to withdraw her guilty plea on the grounds the plea was not knowing, voluntary, and intelligent and that her public defender had provided her constitutionally ineffective representation.  The trial court denied the motion without an evidentiary hearing, but this court reversed and remanded for an evidentiary hearing, holding that the record did not conclusively establish that Ewing was not entitled to postconviction relief.  State v. Ewing, No. CX-98-1885, 1999 WL 343857, at *3 (Minn. App. June 1, 1999).

At the evidentiary hearing, the district court heard testimony from Ewing's public defender, Kevin DesLauriers; her mother, Patty Watley; and from Ewing herself.  DesLauriers testified that he could not disagree with Ewing's contention that DesLauriers discussed the prosecution's plea offer with her for the first time on the morning that trial was scheduled to begin, and spent only 20 minutes discussing it with her.  He denied ever telling her that she would only get 5 years, but he did say that he would have explained "how much time you are actually going to do" under the prosecution's offer of 90 to 150 months.  DesLauriers testified that the only defense he discussed with Ewing was duress, and told Ewing that he thought that defense would not succeed.  DesLauriers testified that he explained to Ewing that if she were convicted of aiding and abetting first-degree murder she could receive a sentence of 30 years in prison.  He explained the prosecution's offer—to allow Ewing to plead to felony murder, with a sentence to fall within the range of 90 to 150 months, at the judge's discretion—to Ewing and then, at Ewing's request, to her mother.  He testified that he thoroughly went over the Petition to Plead Guilty with Ewing.  DesLauriers testified that Ewing was never happy with the plea bargain:


THE COURT:          Did she ever express dissatisfaction to you about the plea bargain?

 

MS. HAWLEY:         To you personally.

 

THE COURT:            To you personally?

 

[DesLAURIERS]:      Yes.

 

THE COURT:            When?  Before or after the sentencing?

 

[DesLAURIERS]:      Before, during and after.  She was not happy about pleading guilty to this crime.  Period.

 

Watley testified that DesLauriers did not explain the prosecution's offer to her on the day of trial.  Watley testified that though she had previously urged her daughter to take a plea, she had no such conversation with her on the morning for which trial was scheduled. 

Ewing testified that DesLauriers told her that if she went to trial she would likely be convicted and get 30 years.  She testified that DesLauriers told her she had no defense to the charge.  She testified that the first time DesLauriers discussed the possibility of a plea with her was "[t]wo or three days before my trial was supposed to start."  She testified that she received threatening letters from Welch while she and Welch were both in jail, and that she told the prosecutor about the letters when she and DesLauriers met with the prosecutor in an attempt to convince her to offer a better plea bargain.  Ewing testified that the prosecutor "acted kind of surprised," as if DesLauriers had not told her about the threatening letters.  Ewing testified that she told DesLauriers about other threats Welch had made against her and her family.  Ewing testified that DesLauriers had not explained to her the defense of duress, and if it had been explained to her, she would not have pleaded guilty. 

On cross-examination, Ewing confirmed that on the night of the murder Welch left her house first, and she followed about five minutes later.  She testified that she thought that if she did what Welch wanted, she would be able to get him out of her life.  She testified that despite her statement under oath that she had read the Petition to Plead Guilty, that in fact she had not read it, but merely signed it.  Ewing testified that she did not talk with DesLauriers between the time she pleaded guilty and the time she was sentenced.

After the evidentiary hearing, the district court again decided that Ewing's plea was voluntary, knowing, and intelligent, and denied her motion to withdraw it.

D E C I S I O N

In reviewing a postconviction proceeding, we ask only whether there is sufficient evidence to sustain the postconviction court's findings.  Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995).  Absent an abuse of discretion, we will affirm the postconviction court's decision.  Id.  "A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case."  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). 

A criminal defendant does not have an absolute right to withdraw a guilty plea.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  But a defendant has a right to withdraw his or her guilty plea at any time, even after sentencing, if the defendant establishes that withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991).  Manifest injustice exists when a defendant can show the guilty plea was not accurate, voluntary, and intelligent.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). 

The record does not support the district court's decision that Ewing's plea was accurate.  For a guilty plea to be accurate, it must be supported by a proper factual basis.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).

In a typical plea, where the defendant admits his or her guilt, an adequate factual basis is usually established by questioning the defendant and asking the defendant to explain in his or her own words the circumstances surrounding the crime.

 

Id.  Generally in her own words, aided by some questions from her public defender, Ewing explained that Welch came to her house the night of the murder and put a gun on her table.  Ewing put the gun in her purse/briefcase (Ewing uses both terms).  She dialed a phone call for Welch, who screamed and cursed at the person on the phone.  Welch then left Ewing's home, telling her to follow him.  She did so, until they arrived at an alley, where Welch was arguing with Mondane.  Welch told Ewing to get out of the car and she did so.  He told her to open her purse and she did so, knowing that Welch intended to take the gun and threaten Mondane with it.

These facts could support the conclusion that Ewing aided and abetted in committing an assault on Mondane, and since Mondane was killed in the course of that assault, they could support the conclusion that Ewing is guilty of felony murder.  See Minn. Stat. § 609.19, subd. 2(1) (1998) (person guilty of felony murder who "causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense"). 

But in order for a proper factual basis to be established, the "record must show that the defendant understood the elements of the offense and any available defenses, and the possible consequences of conviction."  State v. Lyle, 409 N.W.2d 549, 551-52 (Minn. App. 1987).  It is undisputed that Ewing's public defender did not inform her of the availability of the defense of abandonment.  Yet on the facts of this case, Ewing might well have had an abandonment defense.  At her plea hearing, she described the events preceding the murder:

Q:        Was he arguing with her before he asked you to get out of the car?

 

A:        No, it was kind of calm.  There wasn't a whole lot of bad words, but some, but it got really rowdy, and I got out of the car and he snatched the gun out of my purse and waved it at Miss Mondane, and I told him whatever he was getting ready to do wasn't worth it.  He basically told me to shut up and get in my car and leave.

 

Q:        What happened then?

 

A:        I started to walk back toward my car and he was screaming, like I said, about his grandmother and he needed some money and he wanted her to release something and if she thought his grandma dying was funny then everybody could go down, he didn't care, he just wanted to leave, and by the time I got to my car I heard the shot and he jumped in the truck and the lady I know as Miss Starr drove the truck off.

 

On these facts, the defense of "abandonment" would appear to have been "available" to Ewing.  Minn. Stat. § 609.05, subd. 3 (1998) provides:

A person who intentionally aids, advises, hires, counsels, or conspires with or otherwise procures another to commit a crime and thereafter abandons that purpose and makes a reasonable effort to prevent the commission of the crime prior to its commission is not liable if the crime is thereafter committed.

 

If Ewing had gone to trial, she could have contended that by telling Welch that "whatever he was getting ready to do wasn't worth it" and starting to leave the scene, she had abandoned any criminal purpose and made a reasonable effort to prevent the commission of the crime.  Because she was not informed of the availability of the defense, however, she did not have the chance to choose whether to assert the defense.

The dissent cites State v. Russell, 503 N.W.2d 110 (Minn. 1993), to suggest that Ewing had no abandonment defense as a matter of law.  Russell, however, is clearly distinguishable.  In that case, Russell had helped subdue, rob, and carry the victim to the basement of a duplex.  After helping strangle the victim for two or three minutes, Russell said he "couldn't do this," then went upstairs to one of the duplex units.  Two associates later killed the victim.  Russell then "helped divide and share in the proceeds of the robbery."  Id. at 112.  Russell made no effort to prevent the commission of the murder.  Furthermore, by sharing in the proceeds of the robbery, Russell demonstrated that he had not abandoned his criminal intent.  Ewing, by comparison, at least arguably tried to stop Welch from killing Mondane and then left the scene.  Russell does not demonstrate that Ewing lacked an abandonment defense as a matter of law.

In order for a guilty plea to be supported by a proper factual basis, the defendant must understand any available defenses.  Lyle, 409 N.W.2d at 551-52.  Ewing had at least a colorable defense of abandonment, but her public defender did not tell her the defense was available.  It thus appears that the district court abused its discretion in finding that Ewing's plea was supported by a proper factual basis.  Because it was not, the plea was not "accurate."


Because Ewing has shown that her guilty plea was not accurate, she has established manifest injustice.  See Alanis, 583 N.W.2d at 577.  We therefore need not determine whether the plea was voluntary and intelligent.  Cf. Lyle, 409 N.W.2d at 551 ("The factual basis requirement is * * * essential to a determination of whether a plea is voluntary and represents a knowing and intelligent choice of the available courses of action.").

Reversed.

 

 

WILLIS, Judge (dissenting)

            I respectfully dissent.  Because it is my judgment that, as a matter of law, Ewing’s actions do not support even a colorable claim of abandonment of criminal purpose under Minnesota law, I conclude that her public defender’s failure to advise her of the existence of the defense of abandonment is of no effect.  I would affirm the district court’s denial of Ewing’s petition for postconviction relief.

After Ewing brought the murder weapon to the scene of the crime at Welch’s direction, she opened her purse to give him access to the gun, knowing that he intended to take the gun and threaten the victim with it.  As the majority opinion points out, Ewing testified at her plea hearing that (1) when Welch waved the gun at the victim, Ewing told him that “whatever he was getting ready to do wasn’t worth it”; (2) Welch then told her to leave; and (3) by the time she got to her car she heard the shot that killed the victim.

            The majority concludes that Ewing could make a colorable claim at trial of abandonment because by saying “whatever he was getting ready to do wasn’t worth it” and starting to leave the scene, Ewing could argue that she abandoned any criminal purpose and made a reasonable effort to prevent the commission of the crime.  I disagree that the facts here create such a colorable claim.  First, she started to leave the scene, not voluntarily, but at Welch’s direction.  Second, I find no case suggesting that merely telling a person who is about to commit a crime that “whatever he was getting ready to do wasn’t worth it” is a reasonable effort to prevent the commission of the crime.

            In State v. Lucas, the defendant argued that the trial court’s instructions would have allowed the jurors to find him guilty even if they had accepted his contention that he withdrew from a conspiracy.  State v. Lucas, 372 N.W.2d 738, 738-39 (Minn. 1985).  The supreme court did not reach the issue of whether the trial court would have been justified in refusing to instruct the jury regarding withdrawal because that defense was “totally meritless:  there was no evidence that defendant made any effort to warn the police or the victim or prevent the other coconspirators from committing the crime.”  Id. at 739.  Here, it is clear that Ewing made no effort to warn the police or the victim.  And, according to Ewing’s testimony, after she gave Welch access to the gun, knowing he intended to threaten the victim with it, she did not even tell Welch not to shoot the victim.

            Even if Ewing had started to leave the scene of the crime voluntarily, caselaw suggests that this would be insufficient to establish abandonment of criminal purpose.  The defendant in State v. Russell helped tie the murder victim up, place a gag in his mouth, and carry him in to a basement.  State v. Russell, 503 N.W.2d 110 (Minn. 1993).  After helping his co-conspirator begin to choke the victim with a purse strap, he let go of the strap, informed his co-conspirator that he did not want to participate any further, and left the scene.  The court held that “having helped place [the victim] in a position of peril, defendant was required to take further affirmative action to effectively withdraw from the homicide.”  Id. at 114-15.  Here, Ewing helped place the victim in a position of peril and, I conclude, took no affirmative action to prevent the commission of the murder.