This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Dennis J. Moore,
Filed May 17, 2005
Affirmed in part, reversed in part, and remanded
File No. 03033602
John M. Stuart, State Public
Defender, James R. Peterson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425,
Minneapolis, MN 55414
Mike Hatch, Attorney General,
1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County
Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center,
300 South Sixth Street, Minneapolis, MN
55487 (for respondent)
Considered and decided by Minge, Presiding
Judge; and Huspeni,
U N P U B L I S H E D O P I N I O N
challenges his conviction of first-degree assault and sentence of 135 months’
imprisonment, arguing that (1) the district court abused its discretion in
denying his motion to withdraw his guilty plea; and (2) the district court’s upward
durational departure from the Minnesota Sentencing Guidelines violates his Sixth
Amendment right to a jury trial. We
affirm in part, reverse in part, and remand for resentencing.
Dennis Moore was charged with several offenses arising out of a physical
altercation with N.F. on May 5, 2003.
According to N.F., she returned to her apartment to find Moore, her then
boyfriend of nine months, waiting for her.
The parties discussed ending their relationship. Moore
hit N.F. twice, each time knocking her to the floor.
Moore then dragged N.F.
down to the basement where he tied her wrists with a clothesline. When N.F. began to scream, Moore threatened to put a sock in her
mouth. Moore then tied a clothesline around N.F.’s
neck, forced N.F. to stand on a chair, and attached the line to a beam in the
ceiling. N.F. lost consciousness. When she regained consciousness, N.F. was on
the basement floor with her wrists and neck still bound. Moore then undressed N.F., inserted a garden
hose into her vagina, and turned the hose on.
After removing the hose, Moore
orally penetrated N.F. Moore then untied
N.F., brought her upstairs, and demanded to engage in sexual intercourse with
her. Out of fear, N.F. did not
Moore offers a markedly
different version of the facts. Moore admits tying N.F.’s
wrists and neck but contends that N.F. inflicted her own injuries by pressing
the clothesline to her neck. Moore also maintains that
N.F. forced him to perform oral sex on her and demanded that he give her a
bath. Moore contends that N.F.’s explanation for
her injuries is false.
day after the incident, N.F. sought medical attention. Her physician determined that she had large
areas of subconjunctival hemorrhages in both eyes and evidence of strangulation,
which included a linear rope burn on her neck.
N.F. also had visible bruises on her neck and wrists.
was charged with two counts of first-degree criminal sexual conduct, in
violation of Minn. Stat. § 609.342,
subd. 1(c), (e)(i) (2002), and one count of kidnapping, in violation of Minn.
Stat. § 609.25, subd. 1(2), (3) (2002).
The state later amended the complaint, adding three charges: attempted
first-degree murder, in violation of Minn. Stat. §§ 609.17, subd. 1, .185(a)(1)
(2002); attempted second-degree murder, in violation of Minn. Stat. §§ 609.17,
subd. 1, .19, subd. 1(1) (2002); and first-degree assault, in violation of
Minn. Stat. § 609.221, subd. 1 (2002).
The state offered
a plea agreement to Moore,
which he initially rejected. Following
several adverse pretrial evidentiary rulings, however, Moore decided to accept the state’s offer and
plead guilty to first-degree assault. In
exchange for Moore’s
guilty plea, the state agreed to dismiss the remaining charges and recommend a
sentence between 81 and 144 months. With
a criminal history score of two, the guideline sentence for first-degree
assault is 110 months. Minn. Sent. Guidelines IV.
During the guilty-plea hearing, the
district court noted Moore’s
apparent reluctance to enter a guilty plea.
explained that he felt pressured to give up his right to a jury trial because
“[the court was] letting in things that did not happen” and “having charges
against [him] that did not happen.” Moore then conferred privately
with his counsel. Before resuming
questioning, the district court advised Moore:
[Y]ou have to understand the full consequences of the
plea—and it has to be absolutely voluntary.
It means of your own free will.
And if either of those conditions are not met, I’m not going to accept
the plea because it would be improper for me to accept the plea and we’re going
to have a trial. . . . These are your rights and there’s only one person who
can give them up. And so, if you want to
accept the plea bargain, that’s fine, and if not, that’s fine. I could care less. So it’s clearly your decision. So please—please talk to me about what you
want to do.
responded, “I want to accept this because I want to be free again. . . . I am
willing to plead guilty because I have a life and I have children and I need to
see them again.” The district court
inquired, “When you said ‘guilty,’ do you understand the legal consequences of
saying that word?” Moore replied “Yes,” but reasserted his
innocence. The district court then addressed
off the record. When Moore’s
counsel resumed questioning, Moore
indicated that, because he was afraid that he would not receive a fair trial,
he would like to accept the state’s offer.
In support of
his guilty plea, Moore
testified that, on May 5, 2003, he intentionally placed a clothesline around
N.F.’s neck and “at some point during the evening” the clothesline tightened. The tightening of the clothesline caused
blood vessels in N.F.’s eyes to burst, her eyes to hemorrhage, and scarring on
her neck. The strangulation also caused
numbness in her left arm that persisted until early November 2003. Before accepting the guilty plea, the
district court asked twice more whether Moore
wanted to enter a guilty plea. Moore answered
affirmatively, and his guilty plea was accepted.
moved to withdraw his guilty plea. Moore did not challenge
the factual basis for the guilty plea.
Rather, he argued that, because he expressed doubts about entering his guilty
plea and timely moved to withdraw it before sentencing, it was “fair and just”
to grant the motion. The state objected
to the plea withdrawal.
referencing the lengthy guilty-plea colloquy and Moore’s
repeated assurances that he wanted to plead guilty, the district court denied Moore’s motion. The district court sentenced Moore to 135 months’ imprisonment, an upward
durational departure from the sentencing guidelines. The district court based the upward departure
on the following aggravating factors: (1) the assault occurred in N.F.’s
apartment; (2) the presence of two children under the age of five in the apartment
during the assault; and (3) the particular cruelty evinced by the manner
of the assault. This appeal
D E C I S I O N
Moore challenges the district court’s denial of his
presentence motion to withdraw his guilty plea, arguing that (1) allowing his
guilty plea to stand would be a manifest injustice because it was neither
accurate nor intelligent, Minn.
R. Crim. P. 15.05, subd. 1; and (2) withdrawal of the guilty plea would be
“fair and just” because he repeatedly proclaimed his innocence and only pleaded
guilty to receive a shorter sentence, id.,
subd. 2. We review the district court’s decision to deny plea withdrawal for an
abuse of discretion. State v.
Abdisalan, 661 N.W.2d 691, 693 (Minn. App. 2003), review denied (Minn. Aug. 19,
2003). Once a guilty plea has been
entered, a defendant does not have an absolute right to withdraw
it. Alanis v. State, 583 N.W.2d
573, 577 (Minn.
On appeal, Moore argues for the first time that allowing
his guilty plea to stand constitutes a manifest injustice because the factual
basis fails to establish that N.F. suffered great bodily harm. To
comply with the constitutional requirements of due process, a guilty plea must
be accurate, voluntary, and intelligent.
State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004).
contention that the guilty plea is not supported by sufficient facts to
establish the elements of the offense is a challenge to the accuracy of the
guilty plea. State v. Iverson,
664 N.W.2d 346, 349 (Minn.
2003). Accuracy is required to prevent a
defendant from pleading guilty to a more serious offense than the defendant
could be convicted of at trial. State
v. Trott, 338 N.W.2d 248, 251-52 (Minn.
assault requires proof of great bodily harm, defined as “bodily injury which
creates a high probability of death, or which causes serious permanent
disfigurement, or which causes a permanent or protracted loss or impairment of
the function of any bodily member or organ or other serious bodily harm.” Minn. Stat. § 609.02, subd. 8 (2002). “Bodily harm” includes “physical pain or
injury . . . or any impairment of physical condition.” Id.,
subd. 7 (2002). Thus, we examine the
injury to the victim, not the actions of the assailant, even if an individual
who committed a grievous assault escapes conviction because the victim is
fortunate enough to escape serious injury.
State v. Gerald, 486 N.W.2d 799, 802-03 (Minn. App. 1992).
Moore admitted at the guilty-plea
hearing that N.F. suffered subconjunctival hemorrhages in her eyes, scarring on
her neck, and numbness in her arm that lasted approximately six months. Although N.F.’s neck scars are not as
extensive as those in some first-degree assault cases, N.F’s scars are
sufficiently visible and pronounced to constitute “serious permanent disfigurement”
under the definition of great bodily harm.
State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). Moreover, N.F.’s prolonged numbness amounts
to a serious impairment of a physical condition, and N.F.’s eye hemorrhages are
a strikingly serious physical injury.
Taken together, N.F.’s injuries—the numbness, scarring, and eye
hemorrhages—constitute, at a minimum, “other serious bodily harm.” See State v. Jones, 266 N.W.2d 706,
1978) (holding that unconsciousness, prolonged numbness in bodily member, and
repeated dizziness and headaches amount to “other serious bodily harm”). Because the record establishes the essential
element of great bodily harm in a first-degree assault offense, Moore’s challenge to the
accuracy of his guilty plea fails.
Moore also argues that withdrawal
of his guilty plea is required to avoid a manifest injustice because the guilty
plea was not intelligently made. To
satisfy the constitutional requirement of entering a guilty plea intelligently,
a defendant must understand the nature of the charges, the rights being waived,
and the direct consequences of a guilty plea.
Alanis, 583 N.W.2d at 577; State v. Aviles-Alvarez, 561
N.W.2d 523, 526 (Minn. App. 1997), review denied (Minn. June 11,
1997). Moore contends that his guilty plea was not
intelligently made because he was neither advised of, nor did he waive, the
right to have a jury decide the facts supporting the upward durational
departure from the sentencing guidelines.
argument is misplaced.
Moore entered his guilty plea on November 24,
2003, a defendant’s right to have a jury determine whether there were
aggravating factors warranting an upward departure had not been recognized
under the United States or Minnesota
constitutions. Blakely v. Washington,
124 S. Ct. 2531 (2004), the case enunciating
this right under the Sixth Amendment of the United States Constitution, was not
decided until June 24, 2004. Thus, at
the time Moore
entered his guilty plea, he was fully advised of his rights under the then current
law. Although Moore
may be entitled to other relief as a result of the Supreme Court’s subsequent
ruling in Blakely, the failure to
predict and advise Moore
of a new constitutional rule of procedure does not compel withdrawal of the
guilty plea as not intelligently made.
Moore next argues that
the district court abused its discretion in declining to permit him to withdraw
his guilty plea under the “fair and just” standard. Moore
maintains that plea withdrawal is warranted because he proclaimed his innocence
while entering the plea, pleaded guilty only to shorten his sentence, and gave
prompt notice of his request to withdraw his plea.
defendant does not have an absolute right to withdraw a guilty plea before
sentencing. Kim v. State, 434
N.W.2d 263, 266 (Minn.
1989). The defendant must demonstrate
that there is a “fair and just” reason to withdraw the guilty plea. State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991). In determining whether this burden has been
met, the district court considers the reasons advanced by the defendant and any
prejudice that granting the motion would cause the state. Kim, 434 N.W.2d at 266.
district court concluded that Moore
failed to present any compelling reasons to withdraw his guilty plea. We agree.
contends that, because he proclaimed his innocence while entering his guilty plea
and immediately thereafter, it would be “fair and just” to allow him to
withdraw his plea. But a defendant’s
assertion of innocence during or after entering a guilty plea is not a
significant reason to reverse the district court’s decision under the
fair-and-just standard. State v.
Williams, 373 N.W.2d 851, 853 (Minn. App. 1985); see also State v.
Goulette, 258 N.W.2d 758, 761 (Minn.
1977) (holding that guilty plea may be accepted although defendant maintains
innocence). Furthermore, although Moore maintained his
innocence, he also admitted at the hearing that he put a rope around N.F.’s
neck and caused her to suffer serious injuries.
Moore also contends that
he pleaded guilty only because he feared that he would not receive a fair trial
and would spend most of his life in jail.
This claim also fails to establish a fair and just reason to compel
withdrawal of a guilty plea. Barnes
v. State, 489 N.W.2d 273, 276 (Minn. App. 1992), review denied (Minn.
Nov. 3, 1992). Moore decided to plead guilty immediately
after the district court made several adverse evidentiary rulings. In assessing the strength of the state’s case
and then choosing not to proceed to trial, Moore made a rational decision to enter a
guilty plea. Moore’s
subsequent change of mind does not provide a basis for plea withdrawal when the
record plainly demonstrates that Moore’s counsel
and the district court went to great lengths to ensure that Moore’s guilty plea was knowing and voluntary. See id.
Moore argues that the
promptness of his motion—filed merely eight days after entering his guilty
plea—establishes that it is fair and just to allow withdrawal of his plea. We disagree.
Although a prompt motion may demonstrate an absence of prejudicial
reliance by the state, it does not compel a ruling in favor of withdrawal. Abdisalan, 661 N.W.2d at 694; see also Minn. R. Crim. P. 15.05, subd.
2 (absence of prejudice to prosecution is only one factor to consider in motion
to withdraw guilty plea). We also note
that it was not an abuse of discretion for the district court to consider the
emotional impact that Moore’s
plea withdrawal would have on N.F. Kim,
434 N.W.2d at 267 (holding that district court is justified in considering victim’s
sum, the district court did not abuse its discretion in denying Moore’s motion to
withdraw his guilty plea.
Citing Blakely v. Washington,
124 S. Ct. 2531 (2004), Moore next argues that
his sentence, which is an upward durational departure from the sentencing
guidelines based on a judicial determination of aggravating factors, was
imposed in violation of his Sixth Amendment right to a jury trial. This constitutional challenge presents a
question of law, which we review de novo.
State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review
denied (Minn. Feb. 24, 1999).
Moore filed a notice of appeal on April 7,
2004. The Blakely decision was
issued on June 24, 2004. If a case is
pending on direct review when a new rule of federal constitutional criminal
procedure is announced, the defendant is entitled to benefit from that new
rule. O’Meara v. State, 679
N.W.2d 334, 339 (Minn.
2004). A case is “pending” if the
defendant’s judgment of conviction has been rendered but all rights to appeal
and certiorari have not been exhausted. Id.
Blakely, the United States Supreme Court held that the greatest sentence
a judge can impose is “the maximum sentence [that may be imposed] solely on the
basis of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely, 124 S. Ct. at 2537.
The defendant has a Sixth Amendment right to a jury determination of any
fact, except the fact of a prior conviction, that increases the sentence above
this maximum. Id. at 2543. Blakely announced a new rule of constitutional
criminal procedure. State v. Petschl,
692 N.W.2d 463, 471 (Minn. App. 2004), review
Jan. 20, 2005). Because Moore’s
case was pending on direct review when the Blakely decision was released
and the decision announced a new constitutional rule, Moore is entitled to reconsideration of his
sentence in light of Blakely.
Applying the Blakely decision to the
Minnesota Sentencing Guidelines, the Minnesota Supreme Court determined that an upward durational departure from the
Minnesota Sentencing Guidelines based on aggravating factors not found by the
jury violates the Sixth Amendment right to a jury trial. State
v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004). An upward durational departure from the
Minnesota Sentencing Guidelines may not be based on an admission by the
defendant unless the admission
to an aggravating factor is accompanied by the defendant’s waiver of the right
to a jury trial on the aggravating factor.
State v. Hagen, 690 N.W.2d 155, 159 (Minn. App. 2004). Thus, a defendant’s admission of facts during
the entry of a guilty plea that may support an upward departure is not
sufficient under Blakely unless the defendant explicitly waives the
right to a jury trial on the aggravating factors. Id.
Because Moore pleaded guilty to first-degree assault,
the aggravating factors supporting the upward durational departure from the
sentencing guidelines were not determined by a jury. The record establishes that, although in the
course of entering his guilty plea Moore
was informed in general terms of his right to a jury trial, he was not advised
of, nor did he explicitly waive, his right to a jury trial on the aggravating
factors. See State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991) (defendant’s waiver of his
jury-trial rights must be knowing, intelligent, and voluntary). Thus,
the upward durational departure, based on aggravating factors that were not
found by a jury or admitted by Moore after a knowing waiver of his jury trial
right as to the aggravating factors, violated the Sixth Amendment. We, therefore, reverse the sentence imposed
and remand for resentencing in a manner not inconsistent with this opinion.
Affirmed in part, reversed in part, and