This opinion will be unpublished and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

C9-01-1663

 

State of Minnesota,

Respondent,

 

vs.

 

Anthony Isaac Williams,

Appellant.

 

 

Filed May 21, 2002

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. K501411

 

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

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)

 

John M. Stewart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Parker, Judge.*

 

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

 

            On appeal from his conviction of second-degree murder, Anthony Williams argues he was denied his Sixth Amendment right to the effective assistance of counsel when his attorney refused to represent him at a plea-withdrawal hearing before sentencing.  Alternatively, Williams argues the district court abused its discretion in denying his motion to withdraw his plea.  Because on the facts of this case the absence of counsel at the hearing on Williams’s plea-withdrawal motion was harmless constitutional error beyond a reasonable doubt and the district court did not abuse its discretion in denying the motion, we affirm. 

FACTS

In December 2000, Anthony Williams entered a convenience store with Raymond Waddell knowing that Waddell intended to rob the store and was carrying a loaded gun Williams owned.  After grabbing some candy, the men approached the checkout clerk and demanded money.  When the clerk fumbled while trying to open the cash register, Waddell fatally shot her in the face.  Williams took the candy, and both men fled the store into a waiting car.  After his arrest, Williams admitted that he participated in the robbery and that he hid the gun after the shooting to help Waddell.

Williams was indicted for first-degree murder but entered into a plea agreement whereby he would plead guilty to second-degree murder in exchange for the dismissal of the first-degree indictment and the imposition of the presumptive sentence plus an additional 12 months.  The court received Williams’s plea petition after Williams testified that he (1) had an opportunity to review the petition with his attorney and understood its contents; (2) had sufficient time to talk with his attorney and was satisfied with his representation; (3) entered into the plea agreement because he believed he was guilty; and (4) understood he was waiving the right to a trial and had no right to withdraw his plea.  Williams also stated that he was not forced, coerced, or pressured into signing the plea petition.  He then admitted to his participation in the robbery and the shooting.

            When Williams returned to court for sentencing, counsel told the court that Williams was having second thoughts about his plea and wanted to withdraw it.  Counsel also told the court that he had “concerns” about bringing a plea-withdrawal motion on Williams’s behalf, and that after “extensive discussions” Williams had decided to bring the motion pro se.  Williams then gave the court a letter requesting the withdrawal of his guilty plea on grounds that he (1) did not understand the proceedings, the nature of the offense, or the consequences of the plea; (2) failed to receive advice from competent counsel; and (3) lacked the mental capacity to plead guilty.  Williams stated orally that he “never wanted to take the plea but [his attorneys] were constantly asking [him] if [he] wanted to take it, and [he] took it at the spur of the moment.” 

            In anticipation of Williams’s plea-withdrawal motion, the state had previously filed a memorandum opposing the motion.  At the hearing, the state indicated that Williams was not a novice to the criminal-justice system and had earned a juvenile point through felonies he had committed as a juvenile.  It also argued that Williams (1) was represented by competent counsel at the plea hearing; (2) acknowledged he had sufficient time to discuss the plea agreement with his attorney; (3) admitted the factual basis for the plea; and (4) knew he was giving up the right to a trial and had no right to withdraw his plea.

The district court denied Williams’s motion reasoning that his plea was voluntary.  The court stated that the record contained no indication that Williams did not understand his rights or the consequences of his plea and that it was clear that Williams had decided to take advantage of a plea agreement after his co-defendant was convicted of first-degree murder. 

At the sentencing hearing that followed the denial of Williams’s motion, counsel disputed parts of the pre-sentence investigation and argued that Williams’s sentence should fall in the lowest presumptive range. The court then sentenced Williams to a 338-month prison term.  This appeal followed.

D E C I S I O N

I.

Williams first argues that the absence of counsel at the hearing on his motion to withdraw his guilty plea presumptively deprived him of the effective assistance of counsel and warrants reversal of his conviction without regard to prejudice.  Whether the absence of counsel at a plea-withdrawal hearing calls for reversal of a conviction without regard to prejudice is a question of first impression in Minnesota.

            The Minnesota Supreme Court has recognized that not all constitutional errors are prejudicial per se.  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989) (concluding that refusal to instruct on accomplice testimony not prejudicial per se).  Indeed, the court has stated that as a general rule, “an automatic reversal for trial error is required only with respect to errors [that] ‘necessarily render a trial fundamentally unfair.’”  Id. (quoting Rose v. Clark, 478 U.S. 570, 576, 106 S. Ct. 3101, 3106 (1986)).[1]  Errors that do not render a trial fundamentally unfair, by contrast, are subject to the harmless-error doctrine and warrant reversal only if they “seriously affect[] a substantial right and [are] prejudicial.”  Shoop, 411 N.W.2d at 480(citing State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988)). The harmless-error doctrine “promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than the virtually inevitable presence of immaterial error.”  Rose, 478 U.S. at 577, 106 S. Ct. at 3105.

Absent a competent waiver, a criminal defendant has a right to the effective assistance of counsel at all “critical stages” of a criminal proceeding, including a plea-withdrawal hearing.  United States v. Davis, 239 F.3d 283, 286 (2nd Cir. 2001) (stating Sixth Amendment requires presence of counsel at hearing on motion to withdraw guilty plea); United States v. Sanchez-Barreto, 93 F. 3d 17, 20 (1st Cir.1996) (same).  Generally, violations of the right to the effective assistance of counsel warrant reversal only when they affect the reliability of the criminal process and result in prejudice to the defendant.  See, e.g., United States v. Morrison, 449 U.S. 361, 364, 101 S. Ct. 665, 667 (1981) (holding that meeting between defendant and law-enforcement agents without counsel’s knowledge or permission did not justify dismissal of indictment absent showing of prejudice); State v. Knox, 311 Minn. 314, 326, 250 N.W.2d 147, 156 (1976) (holding that absence of counsel at pretrial hearing at which defendant’s competency to stand trial was discussed was harmless error where defendant’s competence to stand trial seemed certain). 

On occasion, however, a violation of the right to counsel is so likely to affect the reliability of the criminal process that prejudice is presumed.  The complete denial of the right to counsel, for example, is a violation from which prejudice is presumed.  See, e.g., Penson v. Ohio, 488 U.S 75, 88, 109 S. Ct. 346, 354 (1988) (prejudice presumed where defendant left entirely without the assistance of counsel on appeal); Gideon v. Wainright, 372 U.S. 335, 339, 83 S. Ct. 792, 794 (1963) (prejudice presumed where court refused to appoint defense counsel for indigent defendant)Prejudice is also presumed when counsel is present but is effectively prevented from assisting the accused during a critical stage of the proceeding.  See, e.g., Geders v. United States, 425 U.S. 80, 88, 96 S. Ct. 1330, 1335 (1976) (prejudice presumed where defense counsel not permitted to confer with client during overnight mid-trial recess); Herring v. New York, 422 U.S. 853, 863, 95 S. Ct. 2550, 2555 (1975) (state statute barring final summation by defense counsel presumed prejudicial); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S. Ct. 157, 159 (1961) (prejudice presumed where defendant denied counsel at arraignment). 

Absent circumstances of that magnitude, however, most courts agree that “there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.”  United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26 (1984)(citations omitted) (absent showing of prejudice, counsel’s youth and inexperience, brevity of time afforded counsel to prepare for trial, complexity and gravity of charges, and witnesses’ inaccessibility to counsel, did not, individually or in combination, support claim that right to counsel was violated); State v. Fagerstrom, 286 Minn. 295, 299-300, 176 N.W.2d 261, 265 (1970) (failure to grant continuance at Rasmussen hearing to permit substitution of counsel did not prejudice defendant where appointed counsel was present during trial); State v. Beltowski  281 Minn. 28, 32, 160 N.W.2d 705, 708 (1968) (increase in amount of bail while defendant was not represented by counsel did not prejudice defendant’s substantial rights). 

Indeed, when a defendant has counsel and is tried by an impartial adjudicator, there is “a strong presumption” that trial errors that occur during the presentation of a case, including constitutional errors, are subject to harmless-error analysis.  Rose, 478 U.S. at 579, 106 S. Ct. at 3106, see, e.g., Satterwhite v. Texas, 486 U.S. 249, 258, 108 S. Ct. 1792, 1798 (1988) (involving improper admission of psychiatric evidence resulting from examination without notice to counsel); Moore v. Illinois, 434 U.S. 220, 232, 98 S. Ct. 458, 466 (1977) (involving improper admission of evidence of post-indictment pretrial identification held in absence of counsel); Milton v. Wainwright, 407 U.S. 371, 372, 92 S. Ct. 2174, 2175 (1972) (involving admission of a confession obtained in violation of the Sixth Amendment); Coleman v. Alabama, 399 U.S. 1, 10-11, 90 S. Ct. 1999, 2004 (1970) (involving denial of right to counsel at preliminary hearing).  The Constitution “entitles a criminal defendant to a fair trial, not a perfect one.”  Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436 (1986) (concluding that constitutionally improper denial of right to impeach a witness for bias is subject to harmless-error analysis). 

Based on the foregoing, we conclude that when a defendant has competent counsel throughout a criminal proceeding and is tried by an impartial adjudicator, the harmless-error doctrine presumptively applies to the absence of counsel at a hearing on a motion to withdraw a guilty plea.  This is particularly true where the defendant does not allege that the original plea was involuntary or that he or she did not commit the crime, and the record clearly shows that the defendant is not entitled to withdraw the plea.  See United States v. Crowley, 529 F.2d 1066, 1069 (3rd Cir.) (absence of counsel at plea-withdrawal hearing held to be subject to harmless error analysis at least where defendant does not claim innocence or involuntary plea and record clearly shows defendant not entitled to withdraw plea), cert. denied,425 U.S. 995, 96 S. Ct. 2209 (1976)); cf. United States v. Balough, 820 F.2d 1485, 1490 (9th Cir. 1987) (absence of counsel at plea-withdrawal and sentencing hearings not subject to harmless-error analysis where defendant moved to appear pro se but did not waive right to counsel knowingly and voluntarily); Fortson v. State, 532 S.E.2d 102, 105 (Ga. 2000) (denial of counsel at plea-withdrawal hearing not subject to harmless-error analysis where defendant claimed plea not knowing and voluntary); Randall v. State, 861 P.2d 314, 316 (Okla. Crim. App. 1993) (harmless-error doctrine not applicable where record of plea hearing not available and court could not “clearly find with certainty that appellant would not be entitled to withdraw his guilty plea”).

The next question, therefore, is whether the absence of counsel at the hearing on Williams’s motion to withdraw his guilty plea was harmless error beyond a reasonable doubt.  After carefully reviewing the record, we conclude that because the absence of counsel did not affect Williams’s substantial rights, it was harmless constitutional error beyond a reasonable doubt.  With the exception of the plea-withdrawal hearing, counsel acted as an advocate at every stage of the criminal proceeding and secured a favorable plea agreement for Williams.  See Anders v. California, 386 U.S. 738, 743, 87 S. Ct. 1396, 1399 (1967) (stating adversarial process protected by Sixth Amendment requires that accused have “counsel acting in the role of an advocate”).  Counsel also protected Williams’s right to a true adversarial criminal proceeding by holding the prosecution to its heavy burden of proof beyond a reasonable doubt.  See Cronic, 466 U.S. at 656 & nn. 20, 21, 104 S. Ct. at 2045 & nn. 20, 21(stating right to effective assistance of counsel is “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.”)

Unlike counsel in cases in which the lack of representation was deemed prejudicial per se, Williams’s counsel was not disabled by a conflict of interest.  Cf. Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (stating conflict of interest that actually affects adequacy of counsel’s representation is presumptively prejudicial) (citing Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S. Ct. 1708, 1719 (1980)); Sanchez-Barreto, 93 F.3d at 20-22 (holding that defendant presumptively denied right to effective assistance of counsel at hearing on pro se motion to withdraw guilty plea because views expressed by counsel at hearing directly contradicted position advocated by defendant).

Similarily, this case presents no unresolved factual issues as to whether Williams is innocent or incompetent, or was induced to plead guilty.  Cf. United States v. Joslin, 434 F.2d 526, 530 (D.C. Cir. 1970) (denial of right to counsel at plea-withdrawal hearing presumed prejudicial where, among other things, unresolved factual issues as to defendant’s claims of innocence and incompetency remained); United States v. Mainer, 383 F.2d 444, 447 (3rd Cir. 1967) (denial of right to counsel at plea-withdrawal hearing presumed prejudicial where, among other things, unresolved factual issues remained as to defendant’s claim that plea was involuntary).  Williams does not deny the factual basis for his plea and has not alleged the existence of evidence tending to question his guilt.  And although he claims he lacked the mental capacity to plead guilty and counsel “were constantly asking [him] if [he] wanted to take the plea,” his assertions are not only in direct conflict with his testimony at the plea hearing, but are also unsupported by the record as a whole.  Even if Williams was in fact repeatedly asked if he wanted to plead, however, repeated inquiries alone do not support a claim of involuntariness.  See State v. Ecker, 524 N.W.2d 712, 719 (Minn. 1994) (stating guilty plea may not be procured through “actual or threatened physical harm or by mental coercion ‘overbearing the will of the defendant’”) (quoting Brady v. United States, 397 U.S. 742, 750, 90 S. Ct. 1463, 1470 (1970)); Sykes v. State, 578 N.W.2d 807, 813 (Minn. App. 1998), review denied (Minn. July 16, 1998). 

Additionally, the lack of representation did not prejudice Williams.  First, the plea-withdrawal motion did not require an evidentiary hearing.  Williams admitted his participation in the robbery, and the transcript of the plea hearing shows that his plea was voluntary and intelligent.  Cf. State v. Jackson, 874 P.2d 1138, 1141-42 (Kan. 1994) (no constitutional right to counsel where plea-withdrawal motion failed to raise question of law or fact requiring evidentiary hearing, legal argument, or briefs).  Second, Williams’s pro se motion did not adversely affect his sentence.  Cf. United States v. Garrett, 90 F.3d 210, 212-13 (7th Cir. 1996) (defendant denied right to counsel in connection with pro se plea-withdrawal motion where court used motion as basis for denying defendant sentence reduction for acceptance of responsibility). 

Most important, the record clearly establishes that Williams is not entitled to withdraw his plea.  Cf. Randall v. State, 861 P.2d 314, 317 (Okla. Crim. App. 1993) (harmless-error doctrine not applicable where formal record of plea hearing not made and court could not conclude with certainty that defendant not entitled to withdraw his plea).  Williams does not contest his guilt, and because his plea-hearing testimony belies his claim that his plea was unknowing and involuntary, the record shows no reasonable possibility that the court would have granted Williams’s motion had he been represented by counsel at the plea-withdrawal hearing.  Cf. Richardson v. Lucas, 741 F.2d 753, 757 (5th Cir. 1984) (Sixth Amendment violation held to be harmless where record showed no reasonable possibility that defendant would have been found not guilty had he been represented by counsel); United States v. Gipson, 693 F.2d 109, 112 (10th Cir. 1982) (same).  Even now, with the assistance of counsel on appeal, Williams has failed to advance any support for his claim that his plea was invalid and that he was harmed by the absence of counsel.

Thus, despite the absence of a competent waiver of the right to counsel and the district court’s failure to determine if Williams wanted the assistance of substitute counsel, the absence of counsel at the plea-withdrawal hearing was harmless constitutional error beyond a reasonable doubt.

II.

Williams alternatively argues that the district court abused its discretion in denying his plea-withdrawal motion.  We disagree.

A criminal defendant has no absolute right to withdraw a guilty plea once it is entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  Because public policy favors the finality of judgments, courts

are not disposed to encourage accused persons to “play games” with

the courts * * * by setting aside judgments of conviction based upon

pleas made with deliberation and accepted by the court with caution.

 

Chapman v. State, 282 Minn. 13, 16, 162 N.W.2d 698, 700 (1968) (quoting Everett v. United States, 336 F.2d 979, 984 (D.C. Cir. 1964)).

The Minnesota Rules of Criminal Procedure, however, allow for withdrawal of a plea before sentencing when the request is timely and withdrawal is either “fair and just” or necessary to correct a “manifest injustice.”  Minn. R. Crim. P. 15.05, subds. 1, 2.  A manifest injustice exists when defendant can show that the guilty plea was not accurate, voluntary, and intelligent.  Alanis, 583 N.W.2d at 577; State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991).  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.  Alanis, 583 N.W.2d at 577. 

The burden of proving that there is a “fair and just” reason for withdrawal or that withdrawal is necessary to prevent a manifest injustice rests on the defendant.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  A decision to permit withdrawal of a guilty plea “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, 434 N.W.2d at 266.   

Williams first claims that he did not understand the essential elements of the offense charged or the consequences of his plea and was not given the advice of competent counsel.  The supreme court has repeatedly stated, however, that “[i]n the absence of any affirmative showing to the contrary, there is a controlling presumption that court-appointed counsel in a criminal case not only has consulted with his client, the accused, but also has advised him in good faith of his rights in entering a plea of guilty or not guilty.” State ex rel. Drysdale v. Tahash, 278 Minn. 361, 367, 154 N.W.2d 691, 695 (1967).  Williams failed to rebut this presumption. 

Williams’s testimony at the plea hearing indicates that he had ample opportunity to confer with his attorney before entering his plea and was fully advised of the nature of the proceedings and the consequences of his plea.  Williams testified that he (1) had an opportunity to review the plea agreement with his attorney and understood its contents; (2) had sufficient time to talk with his attorney and was satisfied with his representation; (3) entered into the agreement because he believed he was guilty of the crime charged; and (4) understood he was waiving the right to a jury trial and had no right to withdraw his plea.  The record thus contains no basis for Williams’s claim that his plea was not intelligent or that he did not receive the effective assistance of counsel.  See State v. Carlson, 292 Minn. 38, 40, 192 N.W.2d 820, 821 (1971) (quoting State v. Waldron, 273 Minn. 57, 69, 139 N.W.2d 785, 794 (1966)) (plea-withdrawal motion properly denied where defendant did not meet burden of showing plea involuntary or counsel’s representation inadequate so as to make proceedings “a farce or a mockery of justice”).

Williams also claims that he lacked the mental capacity to enter a plea and that his plea was involuntary.  But the record contains nothing to indicate that Williams was incompetent or that he was induced to plead guilty.  See State v. Harding, 260 Minn. 464, 473, 110 N.W.2d 463, 469 (1961) (plea-withdrawal motion properly denied where defendant presented “[n]othing whatever indicative of his innocence, or of his failure to understand the proceedings”).  That Williams’s counsel repeatedly inquired into whether Williams wanted to plead guilty, does not amount to the kind of coercion required to render a plea involuntary.  See Ecker, 524 N.W.2d at 719; Sykes, 578 N.W.2d at 813. 

Finally, Williams never claimed innocence, and both his testimony at the plea hearing and his post-arrest statements conclusively demonstrate his guilt.  See State v. Hayes, 276 Minn. 384, 389, 150 N.W.2d 552, 555 (1967) (considering defendant’s admissions of guilt in holding that motion to vacate judgment of conviction entered pursuant to guilty plea properly denied); State v. Washburn, 602 N.W.2d 244, 246 (Minn. App. 1999) (considering fact that defendant did not assert existence of new evidence tending to prove his innocence).  On this record, it is extremely unlikely that counsel would have been more effective in persuading the court to grant Williams’s plea-withdrawal motion.  Under the circumstances, therefore, the district court did not abuse its discretion in denying Williams’s motion to withdraw his plea.   

Affirmed.

 

 



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

[1] The limited class of constitutional errors that render a criminal proceeding fundamentally unfair are known as “structural errors.”  Green v. U.S., 262 F.3rd 715, 717-18 (8th Cir. 2001).  Structural errors are “defect[s] affecting the framework within which a trial proceeds, rather than simply [errors] in the trial process itself.”  Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265 (1991).  An error is structural if it either aborts the basic trial process or denies it altogether.  See Rose, 478 U.S. at 578 n.6, 106 S. Ct. 3106 n.6.