This opinion will be unpublished and

may not be cited except as provided by

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






Bill Leroy Spike, petitioner,





State of Minnesota,



Filed June 4, 2002


Halbrooks, Judge



Rice County District Court

File No. C1001550


John M. Stuart, State Public Defender, Michael C. Davis, Special Assistant State Public Defender, 1042 Minnesota Building, 46 East 4th Street, St. Paul, MN 55105 (for appellant)


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


G. Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 NW Third Street, Faribault, MN 55021 (for respondent)



            Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant Bill Leroy Spike challenges the district court’s denial of his request for postconviction relief, arguing that the postconviction court improperly denied his requests to vacate the judgment, withdraw his guilty plea, and grant him an evidentiary hearing on the grounds that (1) he received ineffective assistance of counsel, (2) his guilty plea was not voluntary and intelligent, (3) the plea petition was improper, (4) he was sentenced under an improper statute, (5) the district court rejected the plea agreement without then allowing appellant to withdraw his guilty plea, (6) the district court engaged in improper plea negotiations, (7) the district court improperly involved itself in appellant’s relationship with his ex-wife, and (8) the district court violated appellant’s constitutional rights to travel and to access to the courts by banishing him from Minnesota as a condition of probation.  We affirm. 


On October 29, 1996, Diane Bannerman obtained a no-contact harassment restraining order against appellant.  Appellant was subsequently charged with six counts of felony harassment and stalking, five counts of violation of a harassment restraining order, and one count of first-degree burglary, all involving Bannerman.

On July 17, 1997, appellant pleaded guilty to two counts of felony harassment and stalking.  The district court sentenced appellant to 45 months in prison and stayed execution of the sentence for five years on various conditions, including that appellant serve six months in jail, not enter the state of Minnesota for five years, have no contact with Bannerman or her son, and pay fines.

Appellant violated his probation by entering the state of Minnesota and repeatedly contacting Bannerman.  Following a probation revocation hearing on March 29, 1999, the district court executed appellant’s 45-month sentence. 

            On October 16, 2000, appellant filed a petition for postconviction relief requesting an evidentiary hearing.  Appellant alleged that he was denied a fair trial on various grounds, including judicial misconduct, ineffective assistance of counsel, and various constitutional violations.  He requested that the judgment against him be vacated and that he be allowed to withdraw his guilty plea and proceed to trial.  The postconviction court denied appellant’s request for an evidentiary hearing.  This appeal follows.


            A defendant who believes that he was convicted or sentenced in violation of state or federal laws may seek postconviction relief “to vacate and set aside the judgment * * * or grant a new trial.”  Minn. Stat. § 590.01, subd. 1 (1998).  A defendant convicted upon a guilty plea may seek a postconviction evidentiary hearing and prove at that hearing that he is entitled to withdraw his plea because the plea was made involuntarily or without knowledge of the charges, the law, or the consequences.  Brown v. State, 449 N.W.2d 180, 183 (Minn. 1989).

The district court “has the discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing.”  Morrissey v. State, 286 Minn. 14, 16-17, 174 N.W.2d 131, 134 (1970) (quotation omitted).  A district court may dismiss a petition for postconviction relief without conducting an evidentiary hearing if the petition, files, and record “conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (1998). 

“An evidentiary hearing is required only when the postconviction pleadings place material facts in dispute.”  Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987) (citation omitted), review denied (Minn. May 18, 1987).  “To place material facts in dispute, the petitioner must allege facts that, if proved, would entitle petitioner to the relief sought.”  Id. (citation omitted).  The allegations must be more than bald assertions or conclusory allegations without factual support.  Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971).

            A criminal defendant may withdraw a guilty plea if the withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1.  On a postconviction motion to withdraw a guilty plea,

a plenary evidentiary hearing need not be afforded * * * unless the court deems it necessary to resolve a disputed fact issue arising from conflicting affidavits or based upon assertions outside the record.


Saliterman v. State, 443 N.W.2d 841, 843 (Minn. App. 1989) (quotation omitted), review denied (Minn. Oct. 13, 1989). 

            A postconviction petitioner has the burden of establishing, by a fair preponderance of the evidence, the facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (1998); Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999). 

On review, we determine only whether there is sufficient evidence to support the postconviction court’s findings.  Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).  Absent a clear abuse of discretion, the postconviction court’s decision not to conduct an evidentiary hearing or permit withdrawal of a guilty plea will not be disturbed on appeal.  Id.

1.         Was appellant’s petition timely filed?

The district court denied appellant’s postconviction petition to withdraw his guilty plea on the ground that it was untimely.  More than three years elapsed between the plea and appellant’s motion to withdraw the plea.

Minn. R. Crim. P. 15.05, subd. 1, provides that while a motion to withdraw a guilty plea “is not barred solely because it is made after sentence[,]” the motion must nonetheless be “timely.” 

[D]elay in seeking relief is a relevant consideration in determining whether that relief should be granted [, although] the length of delay warranting dismissal on this basis alone has not been absolutely established * * * .


Black v. State, 560 N.W.2d 83, 85 (Minn. 1997) (quotation omitted).  A failure to timely bring the motion raises questions about the motion’s legitimacy.  See Doughman v. State, 351 N.W.2d 671, 675 (Minn. App. 1984) (22-month lapse between guilty plea and postconviction petition to withdraw plea raises “doubt” about petitioner’s challenge to plea), review denied (Minn. Oct. 16, 1984).  The doubt is exacerbated where, as here, the petitioner does not challenge the plea until his sentence is executed following a probation violation.  Id

We have affirmed a district court order denying as untimely a motion to withdraw a guilty plea filed eight months after the plea was entered.  See State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984); see also State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986) (affirming denial of motion to withdraw a guilty plea 11 months after sentencing), review denied (Minn. Feb. 14, 1986). 

Appellant declined to file either a direct appeal or a petition for postconviction relief for more than three years after his sentencing, when his probation was revoked and his sentenced executed.  The postconviction court did not abuse its broad discretion by concluding that appellant’s motion to withdraw his guilty plea was not timely filed. 

2.         Was appellant’s guilty plea invalidated by ineffective assistance of counsel?


            Appellant argues that his trial counsel ineffectively assisted him by failing to adequately explain the elements of the offense to which he pleaded guilty.  Appellant contends that, as a result, his plea was not intelligent.  A valid guilty plea must be accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).   

            To prove ineffective assistance of counsel, appellant must show that (1) the attorney’s advice was not within the range of competence demanded of attorneys in criminal cases and (2) the deficient performance prejudiced defendant.  Hill v. Lockhart, 474 U.S. 52, 56-57, 106 S. Ct. 366, 369 (1985).  To meet the second test, a defendant who seeks to withdraw a guilty plea must show that, absent the attorney’s erroneous advice, the defendant would not have pleaded guilty and would have insisted on a trial.  Id. at 59, 106 S. Ct. at 370.

            The record does not support appellant’s claim of ineffective assistance of counsel or his claim that the plea was not intelligent.  At the July 17, 1997 plea hearing, appellant stated that he had read and understood the plea petition and discussed it with his attorney.  He stated that his attorney had “represented [his] interests and fully advised [him].” 

Appellant’s claim that he did not understand the essential elements of the crime is unaccompanied by any detail, and as such is insufficient to warrant an evidentiary hearing.  See Morrissey, 286 Minn. at 16, 174 N.W.2d at 133 (postconviction procedures “do not comprehend that a petitioner may have a full evidentiary hearing on the basis of bald assertions of denial of constitutional rights”).  

            The record shows that appellant’s counsel negotiated a plea agreement that included the dismissal of all but two of twelve charges against appellant.  Thus,

the record refutes [appellant’s] claim of inadequate representation and could support no other conclusion than that he was fully advised of his fundamental rights and was skillfully and adequately represented by counsel.


State ex rel. Gray v. Tahash, 279 Minn. 379, 383, 157 N.W.2d 81, 84 (Minn. 1968); see also Saliterman, 443 N.W.2d at 843-44 (rejecting claim of ineffective assistance of counsel where appellant was fully informed of plea agreement and constitutional rights he would be waiving upon pleading guilty, and where his attorney obtained dismissal of three of five charges against him).

There is no evidence in the record to support appellant’s claim that his counsel gave him incompetent advice or that appellant did not understand the elements of the offenses. 

3.         Was the plea petition improper?

Appellant argues that he should be granted an evidentiary hearing to show that the plea petition used in the Third Judicial District of Minnesota, and signed by appellant, was invalid because it conflicts with the model plea petition set forth in Minn. R. Crim. P. 15, App. A. 

Under the rule 15 model plea petition, a defendant may withdraw a guilty plea entered pursuant to a plea agreement if “the court does not approve [the] agreement.”  Minn. R. Crim. P. 15, App. A, ¶ 20(b).  The Third Judicial District plea petition provides that the defendant may not withdraw the guilty plea merely because “the sentencing judge disregards the prosecuting attorney’s recommendation on sentence.”  Appellant argues that the petitions conflict and that the Third District petition is, therefore, invalid.  We disagree.

A district court is empowered to “recommend rules governing its practice” that are “not in conflict” with the Minnesota Rules of Criminal Procedure or the General Rules of Practice for the District Court.  Minn. R. Crim. P. 1.03; State v. Hejl,  315 N.W.2d 592, 593 (Minn. 1982).  Such rules “shall become effective as ordered by the Supreme Court.”  Minn. R. Crim. P. 1.03.  The Minnesota Supreme Court has noted in dictum that it has not approved the Third District’s plea petition, but that rule 15 contains conflicting language as to whether use of the appendix A form is mandatory or permissive.  Perkins v. State, 559 N.W.2d 678, 686-87 (Minn. 1997). 

More importantly, the two petitions do not conflict as to the facts of this case.  Minn. R. Crim. P. 15, App. A, concerns the rejection of agreed-on sentences, while the Third District petition concerns the rejection of recommended sentences.  Here, the district court did not reject an agreed-on sentence.  The court rejected the state’s sentencing recommendation made pursuant to the agreement.  If the sentencing court rejects an agreed-on sentence, the defendant is entitled to withdraw the guilty plea.  State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988). 

            But if the sentencing court rejects a mere “recommendation made pursuant to an agreement,” the defendant may not withdraw the plea without establishing either (1) that he mistakenly believed he could withdraw the plea if the sentencing court rejected the recommendation, or (2) that there is some other ground for withdrawal.  Id.  The Third District plea petition and the Appendix A form do not conflict, because neither would authorize appellant to withdraw a guilty plea following the district court’s rejection of the recommended sentence.  The district court properly rejected appellant’s attempt to withdraw his plea on the grounds that the petition was invalid.

4.         Was appellant sentenced under an improper statute?

            Appellant argues that he is entitled to an evidentiary hearing on his petition because he was improperly sentenced.  Appellant was charged with stalking and returning to the property of another pursuant to Minn. Stat. § 609.749, subd. 2(3), (4) (1996).  Appellant was sentenced under Minn. Stat. § 609.749, subd. 4 (1996), which is the felony-sentencing provision of the statute applicable to repeat offenders.  He claims that the complaints were defective in that they do not list Minn. Stat. § 609.749, subd. 4, as a crime charged.

The governing rule is that a conviction will not be invalidated unless the claimed defect or imperfection in the complaint is of such a nature that it misled the defendant as to the nature of the offense charged to the prejudice of his substantial rights.


State v. Byman, 410 N.W.2d 921, 924 (Minn. App. 1987) (quotation omitted).

            There is no evidence that omitting the sentencing provision from the complaints misled appellant as to the nature of the offenses charged or prejudiced his rights. 

5.         Did the district court improperly engage in plea negotiations at the sentencing hearing and improperly reject the plea agreement without allowing appellant to withdraw his guilty plea?


            Appellant argues that the district court improperly participated in plea bargaining at the time of sentencing.  In support, appellant cites to various statements made by the court at the sentencing hearing concerning the terms of the plea agreement, appellant’s obligations and restrictions under the agreement, and the reasons for the dispositional and durational departures.  Appellant’s claim is supported neither by authority nor by the record and is without merit.

            Appellant also argues that the district court breached the plea agreement at sentencing by departing from the recommended sentence without allowing appellant to withdraw his plea.  There is nothing in the record to indicate that appellant mistakenly believed that he could withdraw his guilty plea if the district court rejected the recommended sentence or that there is any other ground for withdrawal of the guilty plea.  DeZeler, 427 N.W.2d at 234.  The district court did not breach the plea agreement by departing from the recommended sentence.  

6.         Did the district court improperly involve itself in appellant’s relationship with his ex-wife?


            Appellant argues that he was deprived of his right to a fair trial when the district court involved itself in his marriage.  In support, appellant cites to the district court’s statement to appellant, after numerous restraining-order violations, that

I am a part of any relationship between you and Diane Bannerman, do you understand that?  * * *  Any time that you call her, see her, talk to her, you’re calling, talking, and seeing me, and I don’t like seeing you, is that clear?


The district court was obviously attempting to articulate the seriousness of appellant’s probation obligations and was not improperly intruding into appellant’s marriage.

7.         Did the district court violate appellant’s constitutional right to travel by banishing him from Minnesota as a condition of probation?


            Appellant argues that the probation condition that he remain outside the state of Minnesota constituted a banishment in violation of his constitutional right to travel.  He also argues that the exclusion from Minnesota deprived him of his right of access to Minnesota courts and prevented him from litigating an action already begun in Rice County.  We disagree.

            The probation condition that appellant remain outside Minnesota for a fixed term of five years is not a banishment.  See State ex rel. Halverson v. Young, 278 Minn. 381, 385, 154 N.W.2d 699, 702  (1967) (probation condition that defendant “remain out of the State of Minnesota” indefinitely is an impermissible banishment).  Appellant’s reliance on Young is, therefore, misplaced.

            The validity of probation conditions containing limited geographical exclusions is a function of

(1) the purposes sought to be served by probation, (2) the extent to which constitutional rights enjoyed by law-abiding citizens should be accorded to probationers, and (3) the legitimate needs of law enforcement. 


State v. Haynes, 423 N.W.2d 102, 103‑04 (Minn. App. 1988) (citation omitted).

            At the sentencing hearing, the parties discussed the Haynes factors at length, and appellant agreed to the exclusion.  Moreover, appellant specifically waived his constitutional right to travel and stated that he knew he was doing so.  Cf. State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991) (accused may waive constitutional right to a jury trial if the waiver is “knowing, intelligent and voluntary” (citation omitted)).

            Appellant’s claim that the geographical restriction prevented him from litigating a lawsuit is a bare allegation unsupported by any evidence in the record.  Moreover, at the sentencing hearing appellant agreed to the geographical restriction after specifically discussing the restriction’s effect on the alleged pending civil case. 

Appellant’s allegations of injustice are unsupported by facts in the record, place no material facts in dispute, and are all bald assertions or conclusory allegations without factual support.  The record does not support his claim that his guilty plea was invalid.  The postconviction court did not abuse its discretion by denying appellant’s request for an evidentiary hearing.


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