This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,


Joseph Stanley Rogers,


Filed April 5, 2005

Reversed and remanded

Minge, Judge


Hennepin County District Court

File No. 02080280



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


Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


Daniel Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)


            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Crippen, Judge.*

 U N P U B L I S H E D   O P I N I O N


MINGE, Judge


Appellant challenges his conviction and the denial of postconviction relief, arguing he should be allowed to withdraw his guilty plea for first-degree assault because the factual basis was insufficient to support the plea.  Because the factual basis failed to establish that appellant used or attempted to use deadly force as required for a conviction of first-degree assault, we reverse. 



On October 7, 2002, appellant Joseph Stanley Rogers was charged with assault in the first degree, in violation of Minn. Stat. § 609.221, subd. 2 (2002), and assault in the second degree, in violation of Minn. Stat. § 609.222, subd. 1 (2002).  The charges stemmed from an incident in which police responded to a call of a person with a gun.  Upon arriving, police heard several gunshots and saw four men running.  Officers yelled at the men to stop.  Although three escaped, appellant, who had a gun, was apprehended.  On the date that the case was scheduled for trial appellant agreed to plead guilty to count one, assault in the first degree, in violation of Minn. Stat. § 609.221, subd. 2, and the state dismissed count two, second-degree assault.  Appellant signed a completed petition to enter plea of guilty form and waived his trial rights on the record. 

Although no sentencing agreement was reached, appellant and his attorney hoped for a dispositional departure to probation.  The district court advised appellant that he was at risk of a substantial prison sentence and that departure depended on the results of a pre-sentence investigation.  The pre-sentence investigation concluded appellant was not a good candidate for probation and he was sentenced to the presumptive sentence of 120 months.  The pre-sentence investigation report noted that during his conditional release between his arrest and sentence, appellant tested positive for narcotics multiple times.  The district court found that appellant had worked with probation and his attorney but that appellant failed to show substantial and compelling reasons for imposing a downward departure. 

Appellant filed a direct appeal, which this court stayed to allow appellant time to pursue a postconviction petition pursuant to Minn. R. Crim. P. 28.02, subd. 4(4).  Appellant then filed a postconviction petition seeking to withdraw his guilty plea on the grounds that his plea was not accurate because it lacked a sufficient factual basis and was not intelligent or voluntary, and that he was denied the effective assistance of counsel.  The district court denied appellant’s postconviction petition without a hearing.  Appellant challenges that ruling.



Because appellant first filed a direct appeal and subsequently filed a petition for postconviction relief, we use the standard of review for direct appeals.  See Santiago v. State, 644 N.W.2d 425, 439 (Minn. 2002).  A defendant does not have an absolute right to withdraw his guilty plea.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  But, a criminal defendant is permitted to withdraw his guilty plea after sentencing “upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1.  “Manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent.”  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  We review the district court’s determination of whether to permit withdrawal of a guilty plea for an abuse of discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).

            The issue is whether appellant’s guilty plea to the charge of assault in the first degree is legally invalid because it is unsupported by an adequate factual basis.  Before accepting a guilty plea, the district court has an obligation to ensure that the plea is accurate.  Ecker v. State, 524 N.W.2d 712, 716 (Minn. 1994); State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  Accuracy requires establishing a proper factual basis for the plea.  Ecker, 524 N.W.2d at 716.  The factual basis requirement is usually satisfied when the court asks the defendant to express in his own words what happened.  Id.; State v. Hoaglund, 307 Minn. 322, 325, 240 N.W.2d 4, 5 (1976).  “The court should not accept the plea unless the record supports the conclusion that the defendant actually committed an offense at least as serious as the crime to which he is pleading guilty.”  Trott, 338 N.W.2d at 251-52 (citation omitted).  “Perfunctory and cursory questioning that fails to include a factual inquiry as to the elements of the charge will not satisfy the factual-basis requirement.”  Vernlund v. State, 589 N.W.2d 307, 310 (Minn. App. 1999).  Additionally, the use of leading questions is discouraged.  Ecker, 524 N.W.2d at 717.

            Appellant pleaded guilty to assault in the first degree against a police officer, which Minnesota defines as:

Whoever assaults a peace officer or correctional employee by using or attempting to use deadly force against the officer or employee while the officer or employee is engaged in the performance of a duty imposed by law, policy or rule may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $30,000, or both.

. . . .


(c)(2) “deadly force” has the meaning given in section 609.066, subdivision 1.


Minn. Stat. § 609.221, subd. 2 (2002) (emphasis added).  Appellant argues that the record does not support the elements of attempted use of deadly force because the gun was empty. 

The factual basis for appellant’s guilty plea consisted of the following testimony:

Q: In fact, you were armed with a firearm and discharging a weapon and running and basically it was a significant enough of a disturbance that the police were called, is that right?

A: Yes

Q: At some point there was a police officer that yelled at you and you admit that you were brandishing a weapon at the time and the officer was in fear of his life and the life of other people around?  He was so concerned about  your actions that he discharged his weapon, is that right?

A: Yes

Q: You acknowledge that by having that gun, your actions and the circumstances that you assaulted an officer and the officer was in the official discharge of his duties and on duty, is that right?

A: Yes

Q: You agree that the assault took place and you’re acknowledging your guilt of that, is that right?

A: Yes

. . . .


Q:  And it is true that you and three other guys ran in between two houses and that was when you assaulted the police officer?

A: Yes, I seen the police officer after I ran out in between the houses.

Q:  And in [officer’s] report he indicates that he yelled, “Stop, police.”  Now, you heard him say at least “Stop”?

A: Stop

Q: You knew that he was a police officer?

A: Yes

Q: Because you were facing him?

A: Yes

Q: And you had the gun in your hand and your gun was – at that point was empty, right?

A: Yes

Q: So you fired all the shots out of your gun?

A: Yes.

Q: And you admit that that gun was in a direction that at least, whether or not you admit that you were pointing it at him, the police officer certainly was reasonable in thinking that you were pointing it at him and that you had been shooting it earlier?

A: Yes.


There is no evidence that the gun was loaded or that appellant actually used any force. 

The question is whether appellant attempted to use deadly force against the officer.  See Minn. Stat. § 609.221, subd. 2.  A person is guilty of an attempt to commit a crime if that person takes a “substantial step toward” the commission of the crime with criminal intent.  Minn. Stat. § 609.17, subd. 1 (2002).  The state argues that appellant attempted to assault the police officer by brandishing a gun and claims that State v. Trei is controlling.  624 N.W.2d 595 (Minn. App. 2001), review denied (Minn. June 22, 2001).  In Trei, the defendant charged at a police officer with knives drawn while uttering words to the effect that he wished to engage the police officer in combat.  Id. at 598.  The defendant stopped within eight feet of the officer and ultimately dropped the knives.  Id. at 597.  The court found that there was sufficient evidence to establish probable cause that the defendant attempted to commit first-degree assault because he took a substantial step toward commission of the crime by charging at the officer.  Id. at 598-99. 

Trei is distinguishable from the case before us because here there is no clear evidence that appellant charged or made any movements toward the officer.  Appellant admitted to facing the officer with an empty pistol in his hand.  Unlike in Trei, where the defendant could have thrown the knives or made a sudden lunge, here appellant did not verbally threaten or engage the officer, but held an empty gun.  As discussed below, the “brandishing” evidence is confused.  Without clear evidence of aiming or attempting to fire an operational gun, appellant’s admission that he held an empty gun does not constitute the “substantial step” necessary for conviction of attempt to use deadly force.

            Appellant also argues that the factual basis failed to establish the elements of assault because there is no evidence of his intent when he ran.  To be guilty of first-degree assault using deadly force against a peace officer a defendant must have the requisite intent to commit an assault.  State v. Lindsey, 654 N.W.2d 718, 723 (Minn. App. 2002); State v. Charles, 634 N.W.2d 425, 430 (Minn. App. 2001) (stating intent is an essential element of the definition of assault); 10 Minnesota Practice, CRIMJIG 13.01, 13.06.  Assault is defined as: “(1) An act done with intent to cause fear in another of immediate bodily harm or death; or (2) The intentional infliction of or attempt to inflict bodily harm upon another.”  Minn. Stat. § 609.02, subd. 10 (2002).  The terms “with intent” and “intentionally” both mean that the defendant “has a purpose to do the thing or cause the result specified” or has the belief that the act “if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(3) (4) (2002). 

Intent can be logically inferred from the totality of the circumstances, including the defendant’s conduct, the character of the assault, and events occurring before and after the crime.  Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999); see also State v. Raymond, 440 N.W.2d 425, 426 (Minn. 1989) (noting that intent is an inference drawn from the totality of the circumstances).  This court has found that pointing or aiming a weapon directly at an officer is sufficient evidence of intent to establish assault.  See, e.g., State v. Courtney, 682 N.W.2d 185, 198 (Minn. App. 2004) (stating evidence of intent sufficient based on testimony that defendant aimed gun directly at officer), review granted (Minn. Sept. 29, 2004); State v. Patton, 414 N.W.2d 572, 574 (Minn. App. 1987) (finding evidence sufficient to establish that defendant brandished knife in a manner that the jury could have found that it was used as a dangerous weapon to cause fear in another of immediate harm).  But merely holding a gun without pointing it or making any motions indicating an intention to shoot is insufficient evidence to support a court’s finding of intent to cause fear of immediate bodily harm.  In re Welfare of T.N.Y., 632 N.W.2d 765, 770 (Minn. App. 2001) (finding evidence insufficient to support first-degree assault conviction in which defendant hesitated before dropping .22 caliber rifle).

Here, appellant admitted that he had previously fired the pistol, that he was running between houses when the police officer ordered him to stop, and that when the officer ordered him to stop he was holding a gun and facing the officer.  But it is not clear whether appellant admitted to brandishing the gun in the following exchange:

Q: At some point there was a police officer that yelled at you and you admit that you were brandishing a weapon at the time and the officer was in fear of his life and the life of other people around?  He was so concerned about your actions that he discharged his weapon, is that right?

A: Yes

Q: You acknowledge that by having that gun, your actions and the circumstances that you assaulted an officer and the officer was in the official discharge of his duties and on duty, is that right?

A: Yes


This last question is conclusory and does not constitute a factual basis for a guilty plea.  The previous series of questions is critical.  Because that exchange consists of leading and compound questions, we are unable to determine whether appellant admitted to brandishing a gun or admitted to the officer’s discharge of his own weapon.  See Ecker, 524 N.W.2d at 717 (“we again discourage the use of leading questions to establish a factual basis”).  The district court failed to elicit an adequate factual basis for first-degree assault because it failed to elicit clear evidence that appellant used or attempted to use deadly force.  Therefore, we remand for further proceedings in which appellant may withdraw his guilty plea and stand trial.[1]

Reversed and remanded.

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

[1] Appellant also raised an issue of ineffective assistance of counsel.  Because we are reversing and permitting appellant to withdraw his guilty plea, we do not reach the ineffective assistance of counsel issue.