This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Leroy Bernard Fondren, Jr.,



Filed April 30, 2002

Reversed and remanded

Willis, Judge


Hennepin County District Court

File No. 00055459


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


Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


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


            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant challenges his conviction of second-degree felony murder, arguing that his attorney told him that his guilty plea preserved a pretrial ruling for appeal and that such erroneous advice means that his plea was neither voluntary nor intelligent.  Because appellant’s guilty plea was not valid, we reverse and remand.   


In May 2000, police responded to a report of a shooting in south Minneapolis.  On the scene, they found Kenyatta Adams, dead from multiple gunshot wounds.  Three witnesses identified appellant Leroy Bernard Fondren, Jr., as the shooter.  Appellant was charged with second-degree murder and second-degree felony murder.   

On the date trial was scheduled to begin, in a pretrial hearing, appellant complained that the prosecution had advised him that day that an eyewitness to the shooting had appeared to testify, and he moved the district court to preclude the witness from testifying.  The district court denied appellant’s motion but stated that it might entertain a motion for a continuance.     

Later that same week, when the district court was not in session, the prosecution offered appellant a plea agreement, the terms of which provided that the state would recommend an 84-month prison sentence in exchange for a plea of guilty to first-degree manslaughter.  The prosecution withdrew its offer after it learned that additional witnesses would appear to testify for the state. 

The following day, the district court reconvened for trial.  Before jury selection, appellant moved for the district court to enforce the plea agreement, arguing that he had accepted the plea agreement before the prosecution withdrew it.  The district court denied his motion, and appellant moved for a continuance.  The prosecution then offered another plea agreement, open for 15 minutes, that would have required appellant to plead guilty to felony murder in exchange for a recommended 120-month prison sentence.  Appellant told the district court that he still wanted the continuance but that if the district court denied his motion, he would plead guilty.  The district court denied the motion for a continuance but stated that it would entertain a motion to delay jury selection until the following week to give appellant additional time to prepare his defense.  Instead, appellant accepted the plea agreement.   

            Appellant’s attorney then questioned him about the guilty plea and its consequences: 

Q.        Okay.  I’ve also told you that it’s clear from this record that your acceptance of the plea was conditioned on the judge’s ruling of no continuance, correct?

A.        Yes.

Q.        And I’ve told you that we have made a motion that was denied to have the judge force the prosecutor to take the earlier plea bargain, correct?

A.        Yes.

Q.        Both of those issues are preserved for appeal, but no others.  Do you understand that?

A.        Yeah.

Q.        By no others, I mean you couldn’t claim on appeal that you acted in self-defense so this is a bad deal.  Do you understand that?  The only issues that are preserved for appeal are the ones I just mentioned.  Do you understand that?

A.        Yeah.

Q.        Those are issues that you could ask an appellate court -- an appeals court to look at and say, that was wrong.  Anything else would be covered by paragraph 23 [of the plea petition] when it says, “probably would be useless and a waste of my time and the court’s time.”  Do you understand that?

A.        Yeah.  

Q.        Now, by saying that, I’m not telling you, nor am I indicating to you, nor will anybody else in the courtroom, that if you decide to appeal on those issues you will win that appeal.  All I’m saying is that those are issues, if you decide to raise it on appeal, you have preserved.  That means you could do that.  Do you understand that? 

A.        Yeah. 


Paragraph 23 of appellant’s plea petition states:

My attorney has told me and I understand that if my plea of guilty is accepted by the judge I have the right to appeal, but that any appeal or other court action I may take claiming error in the proceedings probably would be useless and a waste of my time and the court’s time.


            At the sentencing hearing, appellant moved to withdraw his guilty plea under Minn. R. Crim. P. 15.05, subd. 2, arguing that it was not voluntary because he was “clearly under tremendous pressure during a 15-minute time period to make a decision” about whether to accept the prosecution’s second plea offer.  The district court denied appellant’s motion and sentenced him to 120 months in prison.  This appeal followed. 


            Appellant does not challenge the district court’s ruling denying his motion to withdraw his guilty plea on the ground that it was involuntary because he was time-pressured.  Instead, he challenges his conviction on different grounds, arguing that his plea was neither voluntary nor intelligent because his attorney advised him that the plea preserved for appeal the district court’s ruling on his motion for a continuance.  That erroneous advice, appellant argues, means that his plea was not valid.  Although appellant’s attorney told him that his plea of guilty preserved two issues for appeal, he does not raise here the second issue, regarding the earlier plea agreement.                   


A defendant who challenges a judgment of conviction against him based on an invalid guilty plea may seek a postconviction hearing from the district court or may appeal directly to this court.  Brown v. State, 449 N.W.2d 180, 182-83 (Minn. 1989).  “Post-conviction proceedings are the proper forum for presentation and evaluation of matters not of record supporting withdrawal of a guilty plea.”  State v. Schaefer, 374 N.W.2d 199, 201 (Minn. App. 1985).  But a direct appeal is appropriate when the record contains factual support for the defendant’s claim and when no disputes of material fact must be resolved to evaluate the claim on the merits.  See Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998); State v. Newcombe, 412 N.W.2d 427, 430 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).  Here, appellant bases his challenge entirely on matters in the record; no material fact disputes exist.  He therefore properly appeals his judgment of conviction directly to this court. 


Appellant challenges his conviction, arguing that his guilty plea was neither voluntary nor intelligent because his attorney erroneously advised him that he could appeal the district court’s ruling on his motion for a continuance.   Appellant contends that this court must vacate his guilty plea and remand his case for trial to correct a manifest injustice.

To be valid, a guilty plea must be accurate, voluntary, and intelligent, that is, knowing and understanding.  Brown, 449 N.W.2d at 182.  A court must allow a defendant to withdraw a guilty plea upon proof “that withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1.  A guilty plea that is not accurate, voluntary, and intelligent is manifestly unjust.  Alanis, 583 N.W.2d at 577.  The defendant bears the burden of showing manifest injustice.  Id.

Except under limited circumstances that do not apply here, Minnesota does not recognize a conditional guilty plea.  State v. Faber, 343 N.W.2d 659, 660 (Minn. 1984); see State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980); State v. Verschelde, 595 N.W.2d 192, 194-95 (Minn. 1999) (recognizing that so-called Lothenbach procedure preserves issues for appeal).  Generally, when a counseled defendant pleads guilty, such a plea “operates as a waiver of all nonjurisdictional defects,” including alleged deprivations of constitutional rights that occurred before the defendant entered his plea.  Lothenbach, 296 N.W.2d at 857 (citation omitted). 

Here, appellant pleaded guilty; he therefore waived his right to appeal the district court’s ruling on his motion for a continuance.  But defense counsel explicitly told appellant otherwise, that is, that appellant had preserved that issue for appeal.  Neither the prosecution nor the court corrected that misapprehension.  In fact, after appellant had accepted the plea agreement, but before he pleaded guilty, the court commented that appellant could argue its decision regarding his motion for a continuance on appeal.     

The voluntariness requirement of a valid plea ensures that a defendant did not plead guilty because of improper pressures or inducements.  Brown, 449 N.W.2d at 182.  Promises that cannot be fulfilled may constitute improper inducement to plead guilty.  State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000).  An involuntary guilty plea constitutes “such a manifest injustice as to entitle a defendant to withdraw his plea.”  Sykes v. State, 578 N.W.2d 807, 812 (Minn. App. 1998) (quotations omitted), review denied (Minn. July 16, 1998). 

Defense counsel told appellant that, while his guilty plea waived, among other things, his right to a trial by jury, it preserved the continuance ruling for appeal.  When the prosecution questioned appellant regarding whether it was his decision to plead guilty, appellant replied:

Well, it’s my decision, you know, to try and get me a continuance to defend -- to work with these new witnesses you all of a sudden came up with, but -- you know what I’m saying?


Because appellant based his guilty plea on defense counsel’s misapprehension that he could appeal the continuance ruling, he entered an involuntary plea.   Such a plea is not valid. 

Appellant’s guilty plea was also invalid because it was not intelligent.  To enter a valid guilty plea, a defendant must plead intelligently, that is, he must know the rights that he waives by pleading guilty and understand the consequences of the plea.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  The defendant must know and understand only the direct consequences of his plea, that is, those that “flow definitely, immediately, and automatically from the guilty plea.”   Alanis, 583 N.W.2d at 578.   

In Alanis, the defendant, a resident alien, argued that his plea was not intelligent because he was not warned that he might be deported because of the plea.  Id. at 578.  But “deportation is neither definite, immediate, nor automatic.”  Id.  A resident alien cannot be deported unless the Immigration and Naturalization Service exercises its discretion to begin deportation proceedings and unless administrative procedures are followed.  Id. at 578-79.  Such a possible collateral consequence does not cause a manifest injustice compelling withdrawal of a guilty plea.  Id. at 579.

In contrast, in United States v. Cortez, the defendant pleaded guilty but erroneously believed, as did all parties to the pre-trial hearing, that the plea had preserved his right to assert a selective-prosecution claim on appeal.  973 F.2d 764, 768 (9th Cir. 1992).  The defendant’s guilty plea foreclosed such an option.  While a defendant cannot withdraw a guilty plea based on his attorney’s inaccurate predictions regarding the outcome of his case, the defendant in Cortez was misinformed about the actual, direct effect of his plea.  Id.  The Cortez court concluded that, as a result, the defendant’s plea was involuntary and unknowing.  Id. at 769.

We find the analysis in Cortez to be persuasive.  Here, appellant’s attorney erroneously counseled him regarding the actual effect of his guilty plea.  Appellant’s guilty plea definitely, immediately, and automatically foreclosed his right to appeal the district court’s ruling on his motion for a continuance.  See Lothenbach, 296 N.W.2d at 857.  Under the circumstances, we conclude that appellant did not voluntarily or intelligently plead guilty to felony murder and therefore entered an invalid plea.      

Reversed and remanded.

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