This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1298

 

State of Minnesota,

Respondent,

 

vs.

 

Charles Edward Turner,

Appellant.

 

Filed January 25, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Pennington County District Court

File No. K6-01-767

 

 

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

 

David M. Olin, Pennington County Attorney, Courthouse, Box 396, Thief River Falls, MN 56701 (for respondent)

John M. Stuart, State Public Defender, Philip Marron, Assistant State Public Defender, Suite 425, 2221 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

 

 

 

 

††††††††††† Considered and decided by Shumaker, Presiding Judge; Randall, Judge; and Halbrooks, Judge.

 

 

 

U N P U B L I S H E D†† O P I N I O N

GORDON W. SHUMAKER, Judge

††††††††††† Appellant Charles Edward Turner appeals from his conviction of felony domestic assault.† Turner argues that his guilty plea was not intelligently, voluntarily, and knowingly entered because he was not specifically advised of his right to testify or remain silent at trial.† Because the presumption that counsel advised Turner of his rights has not been rebutted, we affirm.

FACTS

††††††††††† Turner was charged with felony domestic assault after he threw a cigarette lighter and screwdriver at his wife and threatened to kill her.† Turner also tipped over a bedroom dresser in his wifeís presence.†

Before pleading guilty,[1] the district court questioned Turner about whether he understood his constitutional rights.† Specifically, the judge asked Turner if he understood: (1) that he had the right to a jury trial; (2) the plea agreement; (3) that he could question the stateís witnesses against him; (4) that he could call his own witnesses; (5) that he would be presumed innocent until proven guilty beyond a reasonable doubt; and (6) that by entering a plea of guilty he was giving up his right to a jury trial.† The judge also asked Turner if he was satisfied with the representation of his counsel.† Turner answered these questions affirmatively.† He then entered an Alford plea, acknowledging that the stateís evidence was sufficient to support a conviction, but did not sign or submit a plea petition to the court.† The district court accepted Turnerís plea and sentenced him to 17 months, with credit for time served.† This appeal followed.

D E C I S I O N

A defendant has the right to challenge his guilty plea on direct appeal even though he has not moved to withdraw the plea in district court.† State v. Anyanwu, 681 N.W.2d 411, 413 (Minn. App. 2004) (citing State v. Newcombe, 412 N.W.2d 427, 430 (Minn. App. 1987)), review denied (Minn. Nov. 13, 1987).† This court reviews the interpretation of a rule of criminal procedure de novo.† State v. Nerz, 587 N.W.2d 23, 24-5 (Minn. 1998).

Minn. R. Crim. P. 15.01 establishes the procedures for the acceptance of a guilty plea in felony and gross misdemeanor cases.† The rule outlines 20 questions the court is strongly encouraged to ask a defendant to ensure that a guilty plea is intelligently and voluntarily entered.† Turner argues that because the district court did not specifically advise him on the record of his right to testify or remain silent at trial, his guilty plea must be vacated.† But the failure of the court to interrogate a defendant exactly as set out in rule 15 or to fully inform a defendant of all constitutional rights will not necessarily invalidate the plea.† State v. Doughman, 340 N.W.2d 348, 351 (Minn. App. 1983), review denied (Minn. Mar. 15, 1984).† Further, failure to sign a ďpetition to plead guiltyĒ is not persuasive evidence that the defendantís plea was involuntary or unknowing.† Id.† What is important is that the record adequately supports a finding that the defendantís plea was knowing, intelligent, and voluntary.† Id.; see also State v. Wiley, 420 N.W.2d 234, 237 (Minn. App. 1988) (holding that defendantís guilty plea was not invalidated by the district courtís failure to ask all questions under rule 15), review denied (Minn. April 26, 1988).†

Turner argues that a waiver of these rights may not be presumed from the fact that he was represented by counsel at the time of his plea.† Where a defendant had full opportunity to consult with counsel prior to entering his plea, the court may safely presume that the defendant was adequately informed of his rights.† Hernandez v. State, 408 N.W.2d 623, 625 (Minn. App. 1987) (citing State v. Propotnik, 299 Minn. 56, 58, 216 N.W.2d 637, 638 (1974)); see also State v. Simon, 339 N.W.2d 907 (Minn. 1983) (stating that the fact that a guilty plea was counseled justifies the conclusion that counsel advised the defendant of his rights).†

Turner contends that the presumption only applies to postconviction challenges to guilty pleas and not to direct appeals.† However, there is ample authority holding that the presumption is justified when a defendant is advised by counsel before entering his guilty plea.† State v. Russell, 306 Minn. 274, 275, 236 N.W.2d 612, 613 (1975); accord State v. Clark, 279 N.W.2d 836, 837 (Minn. 1979) (holding that because the record revealed that the defendant had discussed his case with his attorney, the presumption arose that the defendant was fully advised of his rights).† Although a defendant might not be questioned about a specific constitutional right, if the record demonstrates that the defendant had an opportunity to consult with counsel, the court may safely presume the defendant was aware of his rights.† Propotnik, 299 Minn. at 58, 216 N.W.2d at 638.

Here, the record reveals that the court carefully questioned Turner about his constitutional rights.† The judge specifically asked Turner a series of questions to ensure that Turner was adequately informed with respect to the plea agreement.† Although it is the better practice for the court to inquire of a criminal defendant as to his understanding of his right to testify or remain silent at trial, the failure to do so does not automatically invalidate the guilty plea.† Turner was represented by counsel throughout the guilty plea proceeding and sentencing and he stated on the record that he was satisfied with his counselís representation.† Thus, the presumption that counsel informed Turner of his constitutional rights is justified.†

Citing State v. Halseth, 653 N.W.2d 782 (Minn. App. 2002), Turner argues that because his right to testify is fundamental, his waiver of that right should have been on the record.† However, Halseth involved a waiver of the right to testify under Minn. R. Crim. P. 26.01, subd. 3, which requires that a waiver be in writing or on the record before a trial on stipulated facts.† Halseth, 653 N.W.2d at 785.† Halseth did not address the presumption that a defendant, represented by counsel, has been advised of his constitutional rights prior to a guilty plea.† Id.

Finally, Turner argues that the court should have questioned him directly on the guilty plea and waiver of the right to testify as required under Fed. R. Crim. P. 11.† But there is no due-process requirement that the district court follow the federal rule in questioning a defendant.† Wiley, 420 N.W.2d at 236; (citing Neeley v. Duckworth, 473 F. Supp. 288, 292 (N.D. Ind. 1979)).† Therefore, the presumption that counsel advised Turner of his rights has not been rebutted.

Affirmed.



[1] Turner was initially tried before a judge in January 2002, found guilty, and sentenced to an executed prison term of 29 months.† Turnerís conviction was reversed because this court determined that he had not personally waived his right to a trial by jury.† State v. Turner, 2003 WL 1875561, No. C2-02-848 (Minn. App. 2003).