This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Christopher Michael Loving, petitioner,




Filed ­­­November 6, 2001


Harten, Judge


Olmsted County District Court

File No. KX-98-3478



Raymond F. Schmitz, Olmsted County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904; and


Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)


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


            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N



            Appellant challenges the denial of his postconviction petition to withdraw his guilty plea for first-degree criminal sexual conduct.  He argues that the plea was not knowing, intelligent, or voluntary because it was induced by fear that a jury would find him guilty.  The postconviction court rejected the petition, finding both that appellant’s petition was untimely and that the plea was properly entered.  Because we conclude that appellant’s plea was knowing, intelligent, and voluntary, we affirm.


Appellant, Christopher Michael Loving, was charged with eight counts of first-degree criminal sexual conduct with minor child A.  Appellant and respondent State of Minnesota entered into a plea agreement in which appellant pleaded guilty to one count of first-degree criminal sexual conduct that encompassed several incidents between November 1997 and 1998.  The state dropped the remaining criminal sexual conduct charges and an unrelated controlled substance charge. 

            At the plea hearing on August 27, 1999, when the district court asked appellant if he had enough time to make a decision on the plea agreement and if his answers were voluntary and truthful, he answered, “Yes.”  Appellant went on to assert that he was not confused by the court proceedings and acknowledged that he was giving up his rights to a jury trial, to confront witnesses, to challenge the evidence against him, and to present a defense.  Finally, when the district court asked appellant whether he was “pleading guilty because [he] committed [the] crime or because [he had] been held in jail since the arrest and could not post bail,” appellant replied, “[B]ecause I committed the crime.”  The district court accepted appellant’s guilty plea and appellant was later sentenced to 81 months in prison.

In February of 2001, nearly one year after his sentencing, appellant filed a postconviction petition seeking to withdraw his guilty plea.  He claimed that the plea was not made knowingly, voluntarily, and intelligently.  The postconviction court denied his petition, finding that the petition was untimely and that the plea was properly entered.  Appellant argues that the postconviction court erred in denying his petition.


            Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id.  (citation omitted).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  (citation omitted).  A postconviction petition to withdraw a guilty plea may be accepted only “upon a timely motion and proof to the satisfaction of the court that withdrawal of the plea is necessary to correct a manifest injustice.”  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998) (citation omitted); see also Minn. R. Crim. P. 15.05, subd.1 (2000).  

A guilty plea is valid only if it is voluntary, intelligent, and knowing.  Sykes v. State, 578 N.W.2d 807, 812 (Minn. App. 1998), review denied (Minn. Jul. 16, 1998).  If a plea does not meet these criteria, there is a “manifest injustice” which entitles a defendant to withdraw the plea.  Id.  Appellant argues that his plea was not voluntary, intelligent, and knowing because it was “induced by fear.”  His attorney had told him he would not win a jury trial and would face a lengthy prison sentence.  But caselaw provides that a court may accept a guilty plea even if it is based on fear that a jury will find the defendant guilty.  See, e.g., Barnes v. State, 489 N.W.2d 273, 276 (Minn. App. 1992) (citing State v. Bradley, 293 Minn. 445, 446, 196 N.W.2d 604, 605 (1972), review denied (Minn. Nov. 3, 1992)).  

Appellant also contends that the nine months he spent in jail prior to his plea placed him under a great deal of stress that amounted to mental coercion, thus making his plea involuntary.  But appellant must show more than the normal stress associated with incarceration to claim coercion.   Sykes, 578 N.W.2d at 813.  Here, appellant offers no additional evidence.  Moreover, when asked at the plea hearing whether he was pleading guilty because he committed the crime or because he wanted to be released from jail, appellant responded, “Because I committed the crime.” 

Appellant claims that his plea was not knowing and intelligent.  The plea hearing transcript, however, shows that appellant was informed of the maximum penalty for the crime and that by pleading guilty he would forfeit his rights to a jury trial, to confront and cross-examine witnesses, to call witnesses, to challenge the state’s evidence, and to present any defenses. 

Appellant asserts that he was not asked to describe the factual basis for his plea but merely to acknowledge the evidence presented by the prosecutor.  Appellant’s counsel did not object to the prosecutor’s questions, stating instead, “I am satisfied with the factual basis.”  Additionally, the district court asked appellant several follow-up questions:

THE COURT:  Do you agree that there were five times of sexual penetration or contact with this child?




THE COURT:   And you did review, then, fully with your counsel * * *

the definition of sexual penetration?



* * *

THE COURT:  * * * I assume you touched the genital or anal opening of “A”?  Is that correct?




THE COURT:  And [with] what party of your body did you touch her genital or anal opening?




THE COURT:  And then you agree that intrusion however slight meets the definition of penetration?




THE COURT:  And that your acts constituted that?  Is that right?




Appellant’s answers at the plea hearing show that he understood the nature of the charges against him and the consequences of his plea.  Appellant has presented no evidence of coercion by the state.  He was informed of the consequences of his plea; he answered that he understood all the facts leading to the charge, and he stated that his answers were truthful and his plea voluntary.  We agree with the postconviction court that appellant has not demonstrated a manifest injustice that entitles him to withdraw his guilty plea.  See Perkins v. State, 559 N.W.2d 678, 688-89 (Minn. 1997) (guilty plea withdrawal not permissible where, at time of plea, defendant understood nature and seriousness of offense charged and the record shows voluntary and intelligent plea).  Accordingly, we conclude that the postconviction court did not abuse its discretion in denying appellant’s petition to withdraw his plea.[1]   



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

[1] Having upheld the postconviction court’s determination that appellant’s guilty plea was knowing, intelligent, and voluntary, we need not review the determination that the petition was untimely.