This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Michael Shawn Bengtson,
Kandiyohi County District Court
File No. KX021467
Mike Hatch, Attorney General, John B. Galus, Kimberly Parker, Assistant Attorneys General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Boyd Beccue, Kandiyohi County Attorney,
Philip G. Villaume, Jeffrey D. Schiek, Villaume & Schiek, P.A., Suite 150, 5200 Willson Road, Edina, MN 55424 (for appellant)
Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction of possession of child pornography, appellant Michael Shawn Bengtson argues that the district court abused its discretion in denying appellant’s pre-sentencing motion to withdraw his guilty plea. Appellant argues that he should have been allowed to withdraw his plea because his attorney was ineffective, the prosecutor failed to disclose exculpatory evidence, and the plea was not knowingly and voluntarily entered. Appellant also argues that, despite his plea of guilty, he can appeal the admission of his statement to police and evidence seized by a private party, and challenge the constitutionality of the child pornography statute. Because the district court did not abuse its discretion in denying appellant’s motion to withdraw his guilty plea, and appellant’s guilty plea waived his right to appeal pretrial issues, we affirm.
Kim Rothwell, appellant’s former girlfriend, went to the
Kandiyohi County Sheriff’s Department and alleged that appellant, Michael Bengtson,
possessed child pornography on a CD-ROM.
Later that day, Rothwell delivered the CD-ROM to the
Follmann interviewed appellant, who admitted to possession of child pornography. Appellant was charged with nine counts of possession of child pornography in violation of Minn. Stat. § 617.247, subd. 4(a) (Supp. 2001). Each count referred to a specific image on the CD-ROM. Later, the complaint was amended to add a tenth charge that included possession of all of the images on the CD-ROM.
Appellant’s attorney, arguing that the CD-ROM was the fruit of an illegal search and that the child pornography statute is unconstitutionally overbroad, moved to dismiss the case. At the omnibus hearing on the motions, Sergeant Anthony Cruze of the Kandiyohi County Sheriff’s Department testified that Rothwell told Cruze she had taken the CD-ROM from appellant long before she came to the sheriff’s department and still had it in her possession. Records clerk Marlene Schmisek testified that Rothwell brought the CD-ROM to the law enforcement center on the same day Rothwell spoke to Cruze. The district court denied the motions, concluding that appellant failed to prove that the statute under which he was charged is unconstitutional, and that the CD-ROM was not illegally obtained by law enforcement officers because it was obtained by a private party without any involvement of law enforcement.
Following a continuance for appellant to obtain new counsel, appellant’s new counsel requested that the omnibus hearing be reopened for the court to consider a motion to suppress appellant’s statements to Follmann. The district court considered and denied the motion, concluding that appellant’s statement was not obtained in violation of his right to counsel.
Appellant then entered into a plea agreement with the state to plead guilty to count ten of the amended complaint, possession of a CD-ROM containing child pornography, in return for dismissal of counts one through nine. The district court questioned appellant on the record about his desire to waive his right to a trial and to plead guilty, and explained that his sentence would be established following a pre-sentence investigation, a psychosexual evaluation, and a chemical use assessment. The district court stated: “I will not accept a plea of guilty from you if you do not admit facts that comprise the elements of the offense,” and also told appellant that once the court accepted his plea of guilty he would not be permitted to withdraw that plea.
Appellant was questioned under oath by defense counsel, the prosecutor, and the district court about the rights he was waiving if he entered a plea under the agreement and about the factual basis for the plea. The district court accepted the plea.
Because conflicting information was presented to the district court at the sentencing hearing, the district court continued the sentencing hearing and requested an updated chemical-use assessment, clarification as to whether or not appellant was charged with a DWI (he stated he was in jail for failing to pay child support at the time), and a more thorough psychosexual evaluation. Another continuance was required for the district court to get a more complete record, and because the probation officer stated that appellant intentionally tried to “fool” the polygraph test by moving and coughing after being instructed not to do so.
Appellant then obtained his third, new legal counsel and moved to withdraw his guilty plea, arguing there was a “clear and grave misapprehension concerning the admissibility of evidence,” and appellant “did not understand the nature and elements of offenses charged and the consequence of this plea.” The state opposed the motion, arguing that appellant had had more than enough time to consider whether or not to plead guilty, he had sufficient counsel, and he validly waived his rights.
The district court denied the motion, stating that appellant failed to show a fair and just rationale for the withdrawal of the plea. The district court sentenced appellant to a stayed sentence of one year and one day, a fine of $2,075.00, and five years of probation. This appeal followed.
Appellant argues that he should be allowed to withdraw his
guilty plea based on ineffective assistance of his first two counsel, an
invalid plea, and prosecutorial misconduct.
Generally, the question of whether to permit withdrawal of a guilty plea
is “left to the sound discretion of the trial court, and it will be reversed
only in the rare case in which the appellate court can fairly conclude that the
trial court abused its discretion.” Kim
v. State, 434 N.W.2d 263, 266 (
“The Supreme Court has stated that ‘the right to counsel
is the right to the effective assistance of counsel.’” State
v. Rainer, 502 N.W.2d 784, 787 (
Appellant specifically states that his attorney “at the
waiver of appellant’s rights hearing was not within the range of competence
demanded by an attorney in a criminal case because the attorney did not
knowingly and voluntarily waive appellant’s rights and the attorney should have
preserved pretrial motions pursuant to Lothenbach.” “A
valid guilty plea must be accurate, voluntary, and intelligent (i.e.,
knowingly and understandingly made).” Butala
v. State, 664 N.W.2d 333, 338 (
Defense counsel established by questioning appellant under oath that appellant understood that by signing the petition to enter a guilty plea, he would give up constitutional and fundamental rights, and counsel examined appellant regarding each right. Counsel questioned appellant about the pretrial motions and rulings on those motions and appellant acknowledged that counsel had shared with him counsel’s conversation with the judge about sentencing possibilities. Appellant acknowledged that he and defense counsel reviewed the evidence of the disk. Counsel asked appellant if he made his plea voluntarily—understanding that counsel had given him his thoughts on the matter, but that it was appellant’s ultimate decision, and no one had threatened him to get him to change his plea. Appellant answered affirmatively to these inquiries.
The district court then examined appellant, establishing
that appellant understood his written plea petition and understood that he
waived his right to appeal the issues decided in the omnibus hearings. The judge reiterated the fundamental rights
appellant would waive by pleading guilty, and that there was no stipulation about
sentencing. The district court asked if
appellant was prepared to waive his right to silence and to tell the court
about the offense. Appellant answered
affirmatively and admitted to the charge in count ten, acknowledging that he
had possessed the CD-ROM for two to three years, and that it was in his safe in
August 2001. The district court found that
appellant had properly waived his rights and admitted to the facts establishing
the charge, and accepted the plea of guilty.
See State v. Ecker, 524 N.W.2d 712, 716 (
Appellant argues that his counsel should have protected appellant’s right to appeal the pretrial rulings by having appellant participate in a Lothenbach trial, rather than enter a plea of guilty. There is no authority for the proposition that assistance of counsel is ineffective merely because counsel may have advised a defendant against pursuing an appeal of pretrial rulings. At the plea hearing, appellant was thoroughly informed, and it is clear from the record that appellant understood, that the guilty plea would result in giving up the right to appeal the pretrial matters, and that trial would be the only way to preserve that right. Appellant did not express any interest or intent to appeal the pretrial rulings.
Appellant also now argues that his prior counsel were
ineffective because they failed to have an expert review the CD-ROM to
determine that the pictures were of actual children. But appellant admitted to the facts in count ten
and conceded in the plea to the allegations in the complaint, which included
the fact that the images were of children under the age of 18. The extent of an investigation is part of
counsel’s trial strategy, and this court gives great deference to that
strategy. Opsahl v. State, 677
N.W.2d 414, 421 (
Appellant also argues that prior defense counsel should
have moved to compel production of Rothwell’s psychological records, should
have challenged his statement to the police under Scales,
and should have moved to withdraw the plea months earlier, when appellant
claims he first informed counsel of his desire to withdraw the plea. But
a “claim of ineffective assistance of counsel may not rest on the failure of an
attorney to make a motion that would have been denied if it had been
made.” Johnson v. State, 673
N.W.2d 144, 148 (
Appellant also argues that the state failed to reveal
exculpatory evidence to appellant in the form of a written statement from
Rothwell’s friend, Sheila Landian, thereby preventing appellant from knowingly
and intelligently waiving his rights, and that defense counsel failed to object
to the lack of disclosure. To succeed on
a prosecutorial-misconduct claim, appellant must show that the “misconduct
occurred and that it was prejudicial.” Voorhees,
596 N.W.2d at 253. This court will only
reverse on the basis of prosecutorial misconduct if it is “so serious and
prejudicial that a defendant’s right to a fair trial is denied.”
Landian was a witness disclosed by defense counsel. The prosecutor explained to the court that he had talked to defense counsel about her expected testimony and defense counsel sent the prosecutor a letter about her anticipated testimony. The prosecutor asked law enforcement to verify the anticipated testimony with Landian, and when that was done, the prosecutor told appellant’s attorney that Landian would testify consistent with the letter, and he did not believe there was any new information to disclose. On this record, there is no misconduct that requires withdrawal of appellant’s plea, and there is no merit in appellant’s argument that defense counsel’s assistance was ineffective for failing to object on this basis to lack of disclosure.
“A plea of guilty cannot be used as
a tactical device to frustrate the prosecution.” Chapman v. State, 282
Appellant argues that even if the district court did not
abuse its discretion by denying his motion to withdraw his plea of guilty, this
court should consider his challenges to the pretrial rulings in the interests
of justice. “A guilty plea by a counseled defendant has traditionally operated, in
In Lothenbach and Ford,the supreme court considered challenges to pretrial rulings despite the entry of guilty pleas because the record in each case clearly established that Lothenbach and Ford were attempting to preserve the pretrial issues for appeal. State v. Lothenbach,296 N.W.2d at 857 (noting that defendant’s attorney had stated that record should reflect reason for plea was to conclude case at district court level and appeal denial of motion to suppress); State v. Ford,397 N.W.2d at 878 (stating that because the circumstances were similar to those in Lothenbach, the court would treat the case as it did in Lothenbach as an appeal from a finding of guilty based on stipulated facts). By contrast, appellant in this case explicitly waived the right to appeal the district court’s pretrial rulings. At the hearing, appellant answered affirmatively to counsel’s question regarding the omnibus hearing rulings: “By entering your plea you are basically saying I am not going to go to trial, I am not going to use that—those rulings as a basis of appeal to a higher court. Do you understand that?” Counsel further questioned appellant regarding the omnibus issues: “You did have formal hearings on that. And you know that you are giving those up because you are going to plead guilty. Do you understand that?” Appellant answered, “yes.” The district court told appellant that “to preserve your right of appeal, you need to go through trial.” Additionally, the district court asked, “[d]o you also understand that this matter is before me now[?] I have not accepted your plea nor have I rejected it. But if the plea is accepted by the Court and you are convicted, if you change your mind later, then it’s too late.” Appellant acknowledged that he understood.
Appellant argues that this court should consider these
issues because they are actually jurisdictional issues, which can survive a
waiver and a plea of guilty for appeal, citing Ford, 397 N.W.2d at 878
for the proposition that a plea only waives non-jurisdictional issues. But appellant cites no authority supporting
his contention that the issues he wishes to appeal are jurisdictional issues. This court could address these issues in
the interests of justice.
 Rothwell explained to Cruze that she had taken the CD-ROM from appellant’s home in August of 2001, and later viewed the CD-ROM in November of 2001, with the assistance of her friend. Appellant’s counsel asserted at oral argument that the CD-ROM had been returned to appellant, and Cruze instructed Rothwell to take it from appellant’s home on January 28. Nothing in the record supports this distortion of the facts.
 Rothwell spoke to Cruze on January 28, 2002. The CD-ROM was date stamped January 22, 2002. There is no explanation in the record for the dating error.
 Appellant does not argue on appeal a second basis on
which to withdraw a plea of guilty, manifest injustice. See Minn.
R. Crim. P. 15.05, subd. 1. The showing
required to withdraw a plea before sentencing for reasons of fairness and
justice is less than that required to withdraw a plea to correct a “manifest
injustice.” State v. Williams, 373 N.W.2d 851, 853 (
 State v. Lothenbach, 296 N.W.2d 854 (
State v. Scales, 518 N.W.2d 587, 592 (
Though the cases cited
by appellant all concern the balancing of a victim’s right to confidentiality
and a defendant’s confrontation right and the right to obtain evidence, or to privileges
sometimes giving way for a defendant to be able to confront his accuser, there
is no explanation of the relevance of Rothwell’s psychological records in this
 Appellant cites an
unpublished case to insinuate that this court considers a constitutional issue
to be a jurisdictional question. State
v. Zaitz, 1998 WL 404856 (