This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


David Theodore Clos,


Filed September 12, 2006


Peterson, Judge


Wright County District Court

File No. K8-03-572


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


Tom N. Kelly, Wright County Attorney, Anne L. Mohaupt, Assistant Wright County Attorney, 10 Second Street Northwest, Buffalo, MN  55313 (for respondent)


Maury D. Beaulier, Hellmuth & Johnson, P.L.L.C., 10400 Viking Drive, Suite 500, Eden Prairie, MN 55344 (for appellant)


            Considered and decided by Minge, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from a conviction of first-degree criminal sexual conduct, appellant argues that the district court (1) abused its discretion in denying his presentencing motion to withdraw his guilty plea based on ineffective assistance of counsel; and (2) erred in failing to consider evidence that, at the time of appellant’s plea, he was suffering from post-traumatic-stress disorder and a major depressive disorder.  We affirm.


          Appellant David Theodore Clos was charged with first- and second-degree criminal sexual conduct following a report by his 11-year-old daughter that appellant had inappropriately touched her.  The daughter described numerous incidents of sexual abuse by appellant.

            On March 7, 2005, the scheduled trial date, appellant pleaded guilty to first-degree criminal sexual conduct.  At the plea hearing, appellant’s attorney, Robert Paule, stated:

            My understanding is that [appellant] is going to plead guilty to . . . criminal sexual conduct in the first degree.


            The sentencing [] would be left open to the Court subject to some limitation.  And that is this:  What [appellant] is pleading guilty carries with it a presumptive 144 month executed prison sentence.


            Our negotiation contemplates myself asking for a dispositional departure on behalf of [appellant].  If, indeed, the Court grants that departure, then the stayed prison time would be 144 months.  If the Court does not grant our motion for a departure and sentence [appellant] to probation, there would be a limitation of an 86 month executed prison sentence.


            I’ve explained this to [appellant].  He understands that there is no guarantee.  I’ve advised him that the Court has indicated that I should in [no] way mislead him as to the likelihood of any such departure being granted.  And if it is, it would have to be, obviously, on very strict terms.  [Appellant] is, however, willing to proceed under this negotiation.


            When questioned by the district court, appellant represented that he understood that he could be sentenced to prison for 86 months and that the decision about whether to sentence him to prison or put him on probation would be made at the time of sentencing, not at the time of the plea.  Defense counsel then questioned appellant:

            Q. Do you understand that there is no guarantee whatsoever that you will get probation out of this matter?


            A. Yes.


            Q. And to be quite frank, in normal circumstances it would be very rare for a person to get probation on a case like this.  Do you understand that?


            A. Yes.


            Q. And you still wish to go forward and plead guilty today?


            A. Yes.


            On May 23, 2005, appellant filed a motion to withdraw his plea.  At the hearing on the motion, appellant testified:  Until March 3, 2005, Paule represented to appellant that he had a strong case, and appellant repeatedly informed Paule that he wanted aggressive representation.  He requested that Paule subpoena seven witnesses for trial, but Paule failed to do so.  Appellant met with Paule on the Thursday before the scheduled trial date and was shocked that Paule wanted to discuss a guilty plea.  Paule told appellant that the likely outcome of a plea would be probation and possibly work release.  Paule did not advise appellant that the court might limit his contact with his children or that he would be required to report as a sex offender.  Appellant recalls Paule arriving in the courtroom on the scheduled trial date without a file but does not recall much about the plea hearing.  Appellant attributes his lack of recall to being in a state of shock.

            Paule testified:  When Paule and appellant met on the Thursday before trial, they discussed the strengths and weaknesses of his case, the trial, how to deal with Spreigl evidence and appellant’s statement to police, and potential plea negotiations.  It was a very emotional meeting that lasted nearly four hours.  Paule told appellant that, if he pleaded guilty, he would have to report as a criminal sexual offender and that the court would have the option of prohibiting or limiting contact with his children.  Paule had thoroughly reviewed the case and was prepared for trial.  He did not have the entire file in his briefcase when he arrived in the courtroom, but he did have it in his car.  Paule had subpoenaed three witnesses to testify and had other witnesses prepared to testify who did not need to be subpoenaed.  On the scheduled trial date, appellant was emotional, but he was able to follow the conversation and understand his options.

            The district court denied appellant’s motion to withdraw his plea, specifically finding Paule’s testimony credible and appellant’s incredible.  Regarding appellant’s state of mind when the plea was entered, the district court found:

            4. At the time of the plea, [appellant] appeared lucid and in control.  At one point, he asked the Court to repeat a question.  At another point, [appellant] corrected the Prosecutor on his place of residence after a brief discussion.  [Appellant] did not manifest indecision or appear in any way to [have] been subject to coercion.  The undersigned Judge presided at [appellant’s] plea hearing.


            . . . .


            6. On June 29, 2005, an evidentiary hearing was held for this issue.  At the hearing, [appellant] testified.  He testified that his trial attorney, Robert Paule, was unprepared for trial, misled him about the plea agreement, and coerced him into pleading guilty.  [Appellant] also testified that he did not understand what was happening on the day of trial and that he did not remember anything that occurred in the courtroom that day.  [Appellant] did, however, admit to remembering a number of specific details about that day, including:  the color of Mr. Paule’s briefcase, the contents of Mr. Paule’s briefcase, and a specific phrase that Mr. Paule used.


            On August 26, 2005, appellant filed a motion to reopen his motion to withdraw his plea.  Appellant submitted an affidavit stating that, on August 15, 2005, he had been diagnosed as suffering from anxiety disorders that produced an amnesiac reaction.  Dr. Roberta Midwinter submitted a letter stating that she had treated appellant for memory problems.  Midwinter opined that appellant suffered from anxious depression resulting in amnesia and that his guilty plea should be reassessed.  Psychologist Michael Gormley submitted a letter stating that appellant suffered from post-traumatic-stress disorder and a major depressive disorder.  Gormley opined that during the meeting with Paule on the Thursday before trial and on the scheduled trial date, appellant “was not cognizant of what was happening around him, much less know to what he was agreeing when he signed the plea agreement.”

            The district court denied appellant’s motion, stating:

[Appellant’s] motion to reopen arguing ineffective counsel and that he did not remember anything that happened in the courtroom on the day of his plea is cumulative.  [Appellant’s] supporting affidavits to his motion to reopen, which include the opinions of Dr. Midwinter and Dr. Gormley indicating that, based on what [appellant] told them, [appellant] was not cognizant at the time of his plea are cumulative.  The Court found that [appellant] was not credible.  There is no evidence before the Court that said affidavits through proper diligence could not have been brought forth at the June 29, 2005 evidentiary hearing.  [Appellant] was given sufficient notice of the issues to be raised at the June 29, 2005 hearing.  There is insufficient evidence before the Court that said affidavits would have provided a more favorable result.


            The district court sentenced appellant to an executed term of 86 months in prison.  This appeal followed.



            Appellant argues that the district court erred in declining to allow him to withdraw his guilty plea based on ineffective assistance of counsel.  The decision whether to allow withdrawal of a guilty plea is committed to the district court’s discretion, and the district court will not be reversed absent a clear abuse of discretion.  State v. Kaiser, 469 N.W.2d 316, 320 (Minn. 1991).

            A criminal defendant has no absolute right to withdraw a plea of guilty once it has been entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  The district court may allow a defendant to withdraw a plea before sentencing “if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.”  Minn. R. Crim P. 15.05, subd. 2.  The defendant has the burden of proving that there is a “fair and just” reason to withdraw his plea.  Kaiser, 469 N.W.2d at 318.

            A defendant will not be allowed to withdraw a guilty plea for ineffective assistance of counsel unless he shows “not only that counsel’s representation fell below an objective standard of reasonableness, but that he was prejudiced, in that ‘there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’”  State v. Wiley, 420 N.W.2d 234, 237 (Minn. App. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985)), review denied (Minn. Apr. 26, 1988).

            Appellant argues that Paule’s testimony at the hearing on the motion to withdraw shows that Paule coerced appellant into pleading guilty by making misleading statements about the consequences of a plea.  We disagree.  Paule specifically denied telling appellant that he would have to “learn to ‘walk the walk.’”  Rather, Paule testified that he explained to appellant that he would not get probation unless he pleaded guilty and was found amenable to probation and that to be found amenable to probation, appellant would have to admit his guilt and accept responsibility for his acts.  Paule testified that he did not tell appellant that it was “very likely” he would get probation.  Paule’s testimony is consistent with what occurred at the plea hearing.  At the plea hearing, Paule explained that there was no guarantee that appellant would get probation, and appellant testified that he understood that the sentencing decision would be made by the district court following a presentence investigation.

            Appellant also argues that Paule was unwilling “to subpoena witnesses, discuss trial strategy or go to trial.”  This argument is contradicted by Paule’s testimony at the hearing on appellant’s motion to withdraw.  Paule testified that he had subpoenaed three witnesses and had other witnesses prepared to testify who did not need to be subpoenaed; at the four-hour meeting a few days before the scheduled trial date, he and appellant discussed the strengths and weaknesses of appellant’s case, trial strategy, and potential plea negotiations; and he told appellant that, if he pleaded guilty, he would have to report as a sex offender, and the court could limit or prohibit contact with his children.

            Resolution of appellant’s ineffective-assistance claim depended on a credibility determination.  The district court specifically found that Paule’s testimony at the hearing on appellant’s motion to withdraw was credible and appellant’s testimony was incredible.  The district court also cited appellant’s demeanor and appearance at the plea hearing.  When credibility determinations are crucial in deciding whether to permit plea withdrawal, this court defers “to the primary observations and trustworthiness assessments made by the district court.”  State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (Minn. June 11, 1997).

            Citing Kaiser, appellant urges this court to conclude as a matter of law that he was coerced into pleading guilty.  But the supreme court in Kaiser held that whether to permit plea withdrawal based on a coercion claim is a factual issue for the district court to determine.  469 N.W.2d at 319.  And Kaiser presents a stronger case for plea withdrawal than does this case because, in Kaiser, defense counsel submitted an affidavit stating that he had pressured the defendant into pleading guilty.  Id. at 318-19.

            In light of the district court’s specific credibility determinations, we conclude that the district court acted within its discretion in determining that appellant failed to satisfy his burden of proving that there is a fair and just reason to withdraw his plea and, therefore, in denying appellant’s motion to withdraw his plea.


            Appellant argues that the district court erred in failing to consider the medical evidence presented in support of his motion to reopen his motion to withdraw.  In deciding appellant’s motion to reopen, the district court applied the standard for reopening an omnibus hearing.  See State v. Needham, 488 N.W.2d 294, 296-97 (Minn. 1992) (stating that the district court may reopen an omnibus hearing if a party was not given advance notice of issues to be raised at the hearing).  Appellant cites the standard for withdrawing a plea based on newly discovered evidence.  See Saiki v. State, 375 N.W.2d 547, 549 (Minn. App. 1985) (stating that a plea may be withdrawn based on newly discovered evidence when a defendant shows that the evidence could not have been discovered before trial through the exercise of due diligence), review denied (Minn. Dec. 19, 1985).

            Applying either standard, the district court did not err in denying appellant’s motion to reopen.  Appellant had notice that his capacity would be at issue at the plea-withdrawal hearing because he raised the issue, and because he claimed that he suffered from amnesia or memory problems at the plea hearing in March 2005, he could have obtained medical evidence to support that claim by June 29, 2005.

            The district court also found that the medical evidence was cumulative.  The opinions provided by the medical experts to support appellant’s motion were based on information provided to them by appellant and his wife, rather than on their personal knowledge.  Thus, the medical evidence was an interpretation of information already provided to the court by appellant, his wife, and appellant’s pastor at the hearing on the motion to withdraw.  The district court judge, who was the same judge that conducted the plea hearing, was not required to accept that interpretation, which was contrary to the judge’s own observations and appellant’s recollection of a number of specific details about the plea hearing.  See Gilles v. State, 299 Minn. 158, 159-60, 216 N.W.2d 898, 899 (1974) (affirming denial of a motion to withdraw a plea based on incompetency when motion was supported by defendant’s self-serving testimony and testimony by a psychiatrist who had no personal knowledge of defendant’s state of mind on the day he entered his plea).