This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Keith Allen Wilcox, petitioner,
Olmsted County District Court
File No. K997738
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904-3712 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Shumaker, Judge.
In this appeal from an order denying his petition for postconviction relief, appellant Keith Allen Wilcox argues that his guilty plea was not supported by an adequate factual basis and that he did not receive effective assistance of counsel. We affirm.
After receiving several phone calls from Wilcox, J.W., Wilcox’s wife, saw Wilcox outside her apartment pounding on the living room window. She told her daughter to tell Wilcox to go away or she would call the police, but her son let Wilcox in through a bedroom window. Wilcox followed J.W. into the kitchen where she told him to leave or she would call the police.
Wilcox unplugged the phone, but J.W. plugged the phone back in while they talked. J.W. received a phone call from her sister, who asked whether Wilcox was there. J.W. said yes, and her sister called the police. J.W. told Wilcox to leave because the police were coming. The complaint alleged that Wilcox then threatened J.W., dumped her purse out, and stomped on her glasses, breaking them. Soon after, police arrived and arrested Wilcox. Wilcox denied making threats and claimed that he accidentally bumped the table, causing J.W.’s purse to fall, and accidentally broke her glasses.
Wilcox was charged with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (1996), and terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1996). Wilcox pleaded guilty to first-degree burglary. In exchange for his plea, the terroristic threats charge was dismissed. At sentencing, the district court imposed a stayed 65-month sentence and, among other conditions of probation, ordered Wilcox to serve 240 days in jail.
After Wilcox was released from jail, he failed to report to his probation officer as ordered. Wilcox admitted the violation at a probation-violation hearing and served ten days in jail. Wilcox appeared at another probation-violation hearing and admitted that he had again violated the terms and conditions of probation by absconding from probation supervision. The district court revoked Wilcox’s probation, vacated the stay of execution, and committed him to the Commissioner of Corrections.
Wilcox petitioned for postconviction relief, seeking to withdraw his guilty plea as not accurate because he did not admit sufficient facts to support a first-degree burglary conviction. Wilcox contended that he did not admit that he entered J.W.’s apartment with the intent to commit a crime or that he intentionally committed a crime while in the apartment. The postconviction court found that Wilcox “waived his defense of lack of intent when he made the ‘tactical decision to plead guilty,’” and that Wilcox admitted facts at the time of the plea that constituted the crime of interfering with a 911 call.
D E C I S I O N
In a postconviction proceeding, the petitioner bears the burden of proving, by a fair preponderance of the evidence, facts that warrant relief. Minn. Stat. § 590.04, subd. 3 (2000). On appeal from a denial of postconviction relief, the reviewing court is limited to determining whether there is sufficient evidence to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, a postconviction decision will not be disturbed on appeal. Id.
There is no absolute right to withdraw a guilty plea after it is entered. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). But if a defendant makes a timely request for withdrawal and demonstrates that “withdrawal is necessary to correct a manifest injustice,” the district court shall permit withdrawal after sentencing. Minn. R. Crim. P. 15.05, subd. 1. Manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent. Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). The main purpose of the accuracy requirement is to protect a defendant from pleading guilty to a more serious offense than he could be convicted of at trial. Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).
A proper factual basis must be established for a plea to be accurate. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). It is the district court’s responsibility to ensure that a sufficient factual basis for a guilty plea is on the record. Vernlund v. State, 589 N.W.2d 307, 310 (Minn. App. 1999); see also State v. Vieburg, 404 N.W.2d 312, 314 (Minn. App. 1987) (explaining that “there must be sufficient facts on the record to support a conclusion that defendant’s conduct falls within the charge to which he pleads guilty”).
Wilcox argues that there was not a sufficient factual basis for a guilty plea on the record because he did not admit to facts that establish the elements of first-degree burglary. Minn. Stat. § 609.582, subd. 1(a) (1996), defines first-degree burglary as follows:
Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building, commits burglary in the first degree * * * if:
(a) the building is a dwelling and another person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building[.]
Wilcox admits that he entered the apartment without consent. But he argues that he did not testify to any facts that establish that he entered the apartment with the intent to commit a crime, or that he committed a crime while in the apartment.
The district court elicited the following testimony from Wilcox at the plea hearing:
Q. Would you tell me what happened?
A. I went to the residence in question there, * * * entered through a bedroom window without the consent of the adult that was living there, had gained permission from my children. I didn’t intentionally realize that I had committed the crime, but after the evidence reviewed and the way the law is I’ve realized that I did commit a first-degree burlary.
* * * *
Q. And [J.W.] did not give you permission to enter.
A. No, she didn’t give me permission to enter the home.
* * * *
Q. Your behavior there that night in the apartment when you went in without her permission, she asked you to leave and you did not go.
A. That’s correct, your Honor. When she asked me to leave I attempted to control the situation by unplugging the telephone and in asking her not to call the police, which I – I regret that I did that. I was wrong. I know I was wrong. I should have left.
Minn. Stat. § 609.713, subd. 1 (1996), defines the crime of terroristic threats as threatening,
directly or indirectly, to commit any crime of violence with purpose to terrorize another * * * or in a reckless disregard of the risk of causing such terror.
A physical act considered in context, unaccompanied by an oral or written communication, can communicate a terroristic threat within the meaning of Minn. Stat. § 609.713, subd. 1. State v. Murphy, 545 N.W.2d 909, 915-16 (Minn. 1996) (citing as examples drawing a finger across one’s throat, discharging a firearm over the telephone, slashing tires, and throwing rocks through windows).
Although Wilcox did not expressly admit the facts necessary to prove either that he intended to commit terroristic threats when he entered J.W.’s apartment or that he committed the offense while inside, this court has held that a defendant waives the defense of lack of intent by making a tactical decision to plead guilty after being advised by an attorney of the nature and elements of the charges against him. Sykes v. State, 578 N.W.2d 807, 813-14 (Minn. App. 1998), review denied (Minn. July 16, 1998); State v. Hemmings, 371 N.W.2d 44, 46 (Minn. App. 1985). In this case, the postconviction court found:
[Wilcox] entered his wife’s residence without permission at a time when they were admittedly having difficulties. When asked to leave and told the police would be called, he refused to leave and unplugged the phone in an attempt to “control the situation.” His wife felt sufficiently intimidated by his attitude and actions that she felt the need to call the police for protection. In the course of his confrontation with his wife her property was damaged by him. [Wilcox’s] attempt to gloss over his actions by painting himself as a misunderstood victim cannot obscure the fact that he used physical intimidation to attempt to get a result he wanted.
The record shows that Wilcox’s attorney advised him of the nature and elements of the charges against him. Therefore, by making a tactical decision to plead guilty, Wilcox waived the defense of lack of intent. The evidence cited by the postconviction court supports the inferences that Wilcox entered J.W.’s apartment intending to terrorize her, that his actions inside were intended to terrorize her, and that he knew or should have known that his conduct could convey a threat of future acts of physical violence against J.W. The postconviction court properly concluded that the factual basis was adequate to support Wilcox’s guilty plea to first-degree burglary. See Sykes, 578 N.W.2d at 814 (upholding postconviction court’s conclusion that factual basis was adequate to support guilty plea to terroristic threats when record supported inference that defendant intended to terrorize victims and defendant knew or should have known that his statements could cause apprehension in victims that he might act out and commit future or further act of physical violence).
In a pro se brief, which is in the form of a letter to this court and a letter that apparently was written to the postconviction court, Wilcox argues that his attorney improperly negotiated a plea agreement rather than investigate Wilcox’s account of the events at J.W.’s apartment. Although Wilcox does not describe his attorney’s efforts as ineffective assistance, we understand his claim to be that he did not receive effective assistance of counsel.
In order to prove his claim of ineffective assistance of counsel, Wilcox
must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id.
Wilcox does not explain why his attorney’s decision to negotiate a plea fell below an objective standard of reasonableness or why it is reasonably probable that he would not have pleaded guilty if his attorney had investigated the matters that he brought to his attorney’s attention. Wilcox has not met his burden of proving his ineffective assistance of counsel claim.
 The statute making interference with a 911 call a crime was enacted in 1997 and applied to crimes committed on or after August 1, 1997. 1997 Minn. Laws ch. 239, art. 3, §§ 19, 26 (codified at Minn. Stat. § 609.78, subd. 2 (Supp. 1997)). The crime at issue in this case occurred on March 1, 1997, and the complaint charged Wilcox with two offenses, first-degree burglary and terroristic threats. The postconviction court, therefore, erred in relying on facts supporting a conviction of interference with a 911 call to establish a factual basis for Wilcox’s guilty plea to first-degree burglary.