This opinion will be unpublished and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
Victor M. Andrade,
Filed May 30, 2006
Hennepin County District Court
File No. 04056273
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Jay M. Heffern,
Peter J. Timmons, 700 Wells
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
This appeal is from an order denying appellant’s postconviction motion to withdraw his plea of guilty to misdemeanor fifth-degree domestic assault. See Minn. Stat. § 609.2242, subd. 1 (2004). Because we conclude that the district court did not abuse its discretion by denying the motion, we affirm.
Appellant Victor Andrade was charged with a single count of fifth-degree domestic assault after an incident involving his wife that occurred on August 22, 2004. Appellant was arrested the same day, and after spending four days in jail, he entered a guilty plea on August 26, 2004.
Appellant was represented by counsel, who presented a rule 15 petition in support of the guilty plea. The petition states that appellant is pleading guilty because “[i]n an argument, I became angry and broke a window and that scared my wife.” The petition lists the trial rights appellant would be waiving by pleading guilty and sets out both the charge against him and the agreed-on sentence, which was 90 days stayed, with credit for four days served.
At the plea hearing, defense counsel elicited from appellant, who was participating through a Spanish-language interpreter, that he had gone through the petition “line by line” with his attorney and that she had explained to him that he was giving up “a lot of jury trial rights.” Counsel explained that because of the plea, any future assault offense could be charged as a gross misdemeanor. Counsel elicited from appellant a factual basis for the plea, consisting of his admission that he was at home with his wife, that they had an argument, that he broke a window, and that his wife would say that she had been hurt and was afraid of him.
When the parties returned in the afternoon for sentencing, the court stated it had reviewed the presentence investigation (PSI) and asked if defense counsel had any changes. The court then explained to appellant why, despite what appellant had apparently told the person who prepared the PSI, his behavior was wrong. The court then asked appellant if he understood. The court imposed the agreed-on sentence, requiring appellant to complete alcohol treatment and to have no contact with his wife until he had done so.
In May 2005, appellant moved to withdraw his guilty plea, arguing that he did not knowingly and intelligently waive his rights and that no factual basis was taken for the plea. Appellant also claimed that he had been denied his right of allocution before sentencing. The district court denied the motion, construing it as a postconviction petition.
D E C I S I O N
The decision whether to
permit a defendant to withdraw a guilty plea is generally left to the sound
discretion of the district court. See Shorter
v. State, 511 N.W.2d 743, 746 (
Appellant argues that he did not knowingly and intelligently waive his
trial rights. A guilty plea must be
knowing, voluntary, and intelligent. See Perkins v. State, 559 N.W.2d 678,
The district court did not go through the individual jury-trial rights
with appellant, but merely informed appellant that his plea meant there would
be no trial. Although rule 15 requires
an inquiry listing the various jury-trial rights, a guilty plea may be validly
entered without strict compliance with the rule. See State v. Christopherson, 644 N.W.2d 507,
Appellant also argues that because he answered “yes” to the question whether he was pleading “guilty or not guilty,” his plea was improper. But throughout the brief hearing, the terms “guilty plea” or “plead guilty” were used; therefore, there is no ambiguity in the plea or any evidence that appellant misunderstood what he was doing.
Appellant also argues that an adequate factual basis was not elicited for the plea. But appellant was questioned at some length about the facts of the offense. The plea petition correctly referred to fifth-degree “domestic assault” as the offense to which appellant was pleading. The fact that the district court made a single erroneous reference to fifth-degree assault does not invalidate the plea.
Appellant also argues that he was
denied the right to allocution before sentence was imposed. A criminal defendant has a right to
allocution before the court imposes sentence.
State v. Young, 610 N.W.2d 361,
But a violation of the right
of allocution is not always prejudicial.
Finally, the state argues
that appellant’s motion to withdraw the plea, made almost nine months after
sentencing, was untimely.