This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Victor M. Andrade,




Filed May 30, 2006


Halbrooks, Judge



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, Minneapolis City Attorney, Lee C. Wolf, Assistant City Attorney, 300 Accenture Tower, 333 South Seventh Street, Minneapolis, MN  55402 (for respondent)


Peter J. Timmons, 700 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN  55431 (for appellant)



            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.


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 (Minn. 1994).  This court reviews the denial of a postconviction petition under an abuse-of-discretion standard.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

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, 688 (Minn. 1997).

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, 511 (Minn. App. 2002) (citing comment to the rule in holding omission of part of the inquiry does not invalidate the plea).  And a rule 15 petition may be used in lieu of an on-the-record inquiry in misdemeanor cases such as this.  See Minn. R. Crim. P. 15 cmt.  In fact, a misdemeanor guilty plea may be taken solely through the rule 15 petition, without any appearance by the defendant.  Minn. R. Crim. P. 15.03, subd. 2.  Because the rule 15 petition covered all the jury-trial rights and appellant acknowledged going through it line by line with his attorney, his challenge to the waiver of his trial rights is without merit.  And although appellant points out that he was not questioned to make sure his plea was not entered simply to gain release from custody, appellant acknowledges that this questioning is not required in misdemeanor cases.

            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, 363 (Minn. App. 2000), review denied (Minn. July 25, 2000); see Minn. R. Crim. P. 27.03, subd. 3 (requiring court to address defendant personally before pronouncing sentence and ask if he wishes to make a statement). 

But a violation of the right of allocution is not always prejudicial.  See State ex rel. Napiwoski v. Tahash, 278 Minn. 56, 62-63, 153 N.W.2d 138, 142-43 (1967) (holding that failure to ask defendant if he had anything to say at sentencing did not invalidate the conviction under the circumstances).  The fact that appellant agreed to the 90-day stayed sentence and talked to the presentence investigator about the offense eliminated any prejudice from the failure to offer him the opportunity for allocution.  Because appellant received the agreed-on sentence, he would have benefited from allocution only if he wanted to withdraw from the plea agreement.  There is no evidence that he did at that time, and the court’s question to appellant about the nature of his conduct gave him an opportunity to present any mitigating circumstances relevant to sentencing.

Finally, the state argues that appellant’s motion to withdraw the plea, made almost nine months after sentencing, was untimely.  See State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986) (holding that motion to withdraw guilty plea made more than 11 months after sentencing was untimely), review denied (Minn. Feb. 14, 1986).  We need not address the timeliness of appellant’s motion.  But we note that the victim’s injuries, which the state points out would no longer be visible nine months after the offense, would likely have healed before trial even if appellant had never pleaded guilty.  Delay that prejudices the state’s case may make a motion to withdraw a guilty plea untimely.  See Chapman v. State, 282 Minn. 13, 16-17, 162 N.W.2d 698, 700-01 (1968) (requiring the “strongest of reasons” to withdraw plea after conviction where effect would be to seriously prejudice state and warning against use of guilty plea as tactical device to frustrate prosecution).  But the healing time for a victim’s injuries, which can be photographed at the time of the offense, is not the proper measure of the timeliness of a plea-withdrawal motion.