This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-28

 

Anthony Paul Harris, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed October 7, 2003

Affirmed

Toussaint, Chief Judge

 

Dakota County District Court

File No. K6-97-2384

 

John M. Stuart, State Public Defender, Jodie Lee Carlson, Assistant State Public Defender, 2221 University Avenue, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

Appellant challenges the postconviction court’s denial of his petition, arguing that his Alford plea was not voluntary and intelligent because it was based on an erroneous pretrial ruling on a suppression motion and because appellant was not informed of the length of sentence or five-year conditional release term, which were imposed at sentencing.  Because the postconviction court did not err in denying appellant’s petition to withdraw his guilty plea, we affirm.

D E C I S I O N

“In keeping with our responsibility to vindicate a denial of fundamental rights and thereby prevent manifest injustice, we have an ‘obligation to extend a broad review of both questions of law and fact in postconviction proceedings.’”  Butala v. State, 664 N.W.2d 333, 388 (Minn. 2003) (quoting State ex rel. Pittman v. Tahash, 284 Minn. 365, 368, 170 N.W.2d 445, 447 (1969)).  On factual matters, our review is limited to whether there is sufficient evidence in the record to sustain the postconviction court’s findings.  Id.  On issues of law, we exercise de novo review.  E.g., id; State v. Knaffla, 309 Minn. 246, 253-54, 243 N.W.2d 737, 741-42 (1976).

The district court found Harris guilty of first-degree criminal sexual conduct based on his Alford plea and committed him for the presumptive term of 158 months.  The court stated that Harris would serve a minimum term of imprisonment of 105 1/3 months, and a maximum term of supervised release of 52 2/3 months, plus five years on conditional release.  Any violation of any rules or conditions would subject him to imprisonment for the entire sentence plus five years of conditional release.  

On this petition for postconviction relief, Harris requests withdrawal of his Alford plea, arguing that (1) the district court erred in denying his pretrial motion to suppress evidence; and (2) he did not understand his possible sentence and was not told that his sentence was subject to five years of conditional release.  The court’s error on the suppression motion and his lack of knowledge as to the conditional release, he argues, made his subsequent Alford plea involuntary and unintelligent.

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).  A defendant has a right to withdraw his guilty plea following sentencing if the defendant can establish that withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; see State v. Christopherson, 644 N.W.2d 507, 510 (Minn. App. 2002), review denied (Minn. July 16, 2002) (burden on defendant to demonstrate refusal to withdraw plea constitutes manifest injustice).  A manifest injustice occurs if the plea is not accurate, voluntary, and intelligent.  Alanis v. State, 583 N.W. 2d 573, 577 (Minn. 1998). 

Minnesota courts have adopted the rules regarding Alford pleas that were established in North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, (1970).  See State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977).  Under an Alford plea, a defendant may plead guilty to an offense, even though the defendant maintains his or her innocence, if the defendant reasonably believes and the record establishes that the state has sufficient evidence to obtain a conviction.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (citing Alford, 400 U.S. at 37-38, 91 S. Ct. at 167 (1970)).   In accepting the plea, the court must determine whether the evidence would support a jury verdict of guilty and whether the plea is voluntarily, knowingly, and understandingly entered.  Goulette, 258 N.W.2d at 761.

Here, at the time of Harris’s plea, the evidence was such that there was a strong probability of a first-degree criminal-sexual-conduct conviction.  First, at the plea hearing, Harris agreed that both his mother and his girlfriend were eyewitnesses to his assault on his six-year-old daughter.  The eyewitnesses observed Harris in the child’s bed, naked from the waist down and on top of his daughter whose pajama pants were around her ankles.  Second, Harris understood that there was physical evidence of semen in the child’s underwear, medical evidence of petechiael bruising around the child’s vaginal area, and the child’s statements corroborating the eyewitnesses. 

Harris claims that his plea was involuntary because it was based on an incorrect suppression ruling.  A guilty plea generally waives “all non-jurisdictional defects arising prior to the entry of the plea.”  See State v. Ford, 397 N.W.2d 875, 878 (Minn. 1986).  The record furnishes no indication that Harris or his attorney acted to preserve Harris’s right to appeal the order denying his motion to suppress.  Harris did not enter a Lothenbach stipulation.  See State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980).  He expressly entered an Alford plea.  When confronted with the evidentiary ruling, Harris had the option of (a) entering into a plea agreement with the state; (b) stipulating to facts and waiving a jury trial to expedite appellate review of the district court's denial of his suppression motion; or (c) entering a not guilty plea and going to trial.  See id. (providing that defendant may enter into stipulation of facts, but, having admitted in open court that he/she is guilty of offense, may not “thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea” (quotation omitted)).  By not proceeding to trial or entering into a Lothenbach stipulation, appellant waived his right to challenge the denial of his suppression motion.

The record is also clear that the suppression ruling would have had no significant impact on a trial.  The district court denied suppression of Harris’s statement to the police and the evidence of the child’s bed linens.  Harris makes no effort to explain how these two items of evidence, which were either cumulative or irrelevant, would have significantly affected a trial.  Considering only the eyewitnesses, the semen on the underwear, and the child’s medical condition, there was abundant evidence of guilt. 

Harris also claims that his plea was not intelligent because he was not fully advised of the consequences of his plea—specifically, that he could be sentenced to 158 months plus five years of conditional release or a total of 218 months.  At the July 21, 1998 sentencing hearing, however, Harris told the court that it could send him to prison for “100 months, 200 months; it doesn’t matter.” 

There was no agreement that Harris would not receive an executed sentence and there was no agreement as to the length of Harris’s sentence.  Therefore, neither could act as an inducement for Harris to plead guilty.  There was also no reference to the mandatory five-year conditional release.  This court has held, however, that the fact that conditional release was not mentioned at the time the plea is entered does not make the plea invalid.  State v. Christopherson, 644 N.W.2d 507, 511 (Minn. App. 2002), review denied (Minn. July 16, 2002); see also State v. Brown, 606 N.W.2d 670, 675 (Minn. 2000).  The test remains whether the defendant’s plea was knowingly and understandingly made.

Harris’s alleged ignorance that he could be sentenced to 158 months plus a five-year conditional release is not supported in the record.  At the Alford plea hearing on April 24, 1998, Harris stated that he understood that the charge of first-degree criminal sexual conduct was punishable by up to 30 years in prison and a $40,000 fine, considerably more than his actual sentence.  The plea hearing transcript reflects that Harris was informed that he still had the potential for a “presumptive prison offense.”  Also at the hearing, the court stated that the presentence investigation recommended a committed executed sentence of 237 months and Harris acknowledged receipt of the presentence investigation by requesting an updated investigation.  Subsequently, the parties litigated possible departures at two sentencing hearings revealing that defense counsel and Harris himself understood the court retained full authority to sentence. 

In short, the record does not support Harris’s claim of ignorance as to the length of his sentence.  At both the plea and sentencing hearings, Harris was asked whether he had any questions. He asked nothing about the possible term of imprisonment, and, in fact, stated at sentencing that it didn’t matter how many months he got.  He did not request withdrawal of the plea or argue that the sentence violated the agreement.  In light of the references to potential sentencing and Harris’s many opportunities to correct or disagree with the arguments for a significant executed sentence, Harris cannot now claim ignorance of the possible sentence he could receive.

We have considered Harris’s pro se brief and conclude that the arguments lack merit.  As discussed above, the record does not support Harris’s argument that he had an agreement regarding the conditional release, an executed sentence, or his criminal history score.  Harris argues that the court rejected his plea, but the record indicates that the court based the conviction on the plea.  Similarly, Harris’s allegation of ineffective assistance of counsel is unfounded and any delay occasioned by the public defender does not constitute prejudice. 

This is not a case in which the district court clearly abused its discretion in denying the petition for postconviction relief.  The plea indicated that Harris’s counsel fully advised him of the implications of his plea, he understood that the evidence against him was strong, and he made a specific election to enter an Alford plea.  Consequently, he waived his right to contest the evidentiary ruling.  At the time he entered his plea, he understood that the court could order a presumptive sentence and that 237 months had been recommended.  Subsequent hearings prior to conviction clarify that Harris, counsel, and the district court understood that Harris faced a long executed sentence.  Therefore, the plea was voluntary, knowing, and intelligent and it was not a manifest injustice to deny Harris’s request to withdraw the plea.

Affirmed.