This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,





Joel David Theis,



Filed ­­­February 13, 2007


Dietzen, Judge


Scott County District Court

File No. 05-04865


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Justice Center, JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)


Dennis P. Moriarty, Kevin J. Wetherille, Jaspers, Moriarty & Walburg, P.A., 206 Scott Street, Shakopee, MN 55379 (for appellant)


            Considered and decided by Randall, Presiding Judge; Hudson, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges his conviction of fifth-degree criminal sexual misconduct, arguing that the district court abused its discretion in denying his motion to withdraw his guilty plea.  Because the district court properly applied the law and did not abuse its discretion, we affirm.


In February 2005, a Shakopee police liaison officer responded to a contact at the Shakopee high school from a female student who reported that her stepfather, appellant Joel Theis, had inappropriately touched her 10 to 15 times beginning when she was about 14 years old.  Following an investigation, appellant was charged with one count of second-degree and two counts of fourth-degree criminal sexual conduct and was later ordered to submit to a psychosexual evaluation. 

During the evaluation, appellant stated that he was involved in a contested divorce proceeding with the victim’s mother in which custody of their minor children was at issue.  Appellant stated that during the pendency of those proceedings, he had obtained a letter written by the victim that was critical of the mother’s parenting skills.  Appellant further stated that when the victim learned of the letter, she left a voice message with appellant stating that unless the letter was returned she would report to the police that he had sexually abused her.  Appellant contends that when the letter was not returned, the victim made her report to the police. 

            On the date of trial, the district court was advised that the matter had been settled after lengthy negotiations.  The prosecutor stated that count I was being amended to fifth-degree criminal sexual conduct and that the other counts would be dismissed.  Prior to taking the plea, the district court asked appellant if he had any questions.  Appellant responded, “No,” and then entered a plea of guilty.  Appellant was put under oath, and his attorney reviewed with him his answers to the questions contained in the Petition to Plead Guilty in a Gross Misdemeanor, the factual basis for the plea, and whether his plea was voluntary.

            Subsequently, appellant obtained new counsel and filed a motion to withdraw his guilty plea.  Appellant argued that he felt coerced into entering the guilty plea because his attorney was not prepared to try the case, that granting the motion would result in no prejudice to the state, and that immediately after the plea, he knew he had made a mistake and took steps to correct it. 


            Appellant contends that the district court erred in denying his motion to withdraw his guilty plea.  We review the district court’s decision whether to permit withdrawal of a guilty plea for an abuse of discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  To be valid, a guilty plea must be accurately, voluntarily, and intelligently made, and not the product of coercion.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003); State v. Ecker, 524 N.W.2d 712, 718-19 (Minn. 1994).  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).  But the district court may permit withdrawal of a guilty plea under certain circumstances.  Id. 

The applicable standard for determining whether a guilty plea may be withdrawn depends on the stage of the proceedings when the motion is made.  Before sentencing, a defendant has the burden of showing that “fair and just” reasons for withdrawal of the guilty plea exist, with consideration of “any prejudice that 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.  “Underlying the rule is the notion that giving a defendant an absolute right to withdraw a plea before sentenc[ing] would undermine the integrity of the plea-taking process.”  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

            To establish “fair and just” reasons for withdrawing his guilty plea, appellant argues that his plea was not accurate, voluntary, or intelligent.  Appellant first argues that his Alford plea was not accurate and that no adequate factual basis for the guilty plea was established in the record in violation of State v. Ecker.  We disagree.

At the guilty plea hearing, appellant admitted that during the relevant time period he lived in Shakopee with the victim and her mother, and had daily contact with the victim.  Appellant also admitted that he had the opportunity to go through the evidence in this case with his attorney, and he testified as follows:

Defense counsel:  And you understand the allegations that are presented against you?


Appellant: Yes.


Defense counsel:      And you understand that the State’s amendment to the fifth degree talks about nonconsensual sexual contact.


Appellant: Yes.


Defense counsel:      And you would agree with me that if this case were to proceed there is a risk to you that you would be found guilty of that fifth degree non-consent sexual contact? You’re aware the State has made some what they call Spreigl evidence that he would want admitted as well?


Appellant: Yes.


The factual basis of the district court’s determination can be ascertained from the guilty plea hearing, the record, or testimony of other witnesses.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  Here, appellant acknowledged that there was a risk, based on the evidence, that a jury would convict him of non-consensual sexual contact.  Also, the statements in the record by the victim, victim’s mother, and victim’s sister, as well as the state’s Spreigl evidence, were sufficiently incriminating to reasonably conclude that appellant may be convicted by a jury.  Therefore, based on the evidence in the record and appellant’s own statements at the plea hearing, the district court did not abuse its discretion when it concluded that appellant’s plea was accurate. 

Appellant next argues that the guilty plea was not voluntarily or intelligently made.  Essentially, appellant argues that his plea was coerced and that he was emotionally distraught at the time he entered his plea.  He points out that he quickly changed his mind after he entered the plea.  “A plea of guilty must not be the product of coercion.”  State v. Abdisalan, 661 N.W.2d 691, 694 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003).  To determine whether a plea was voluntary, we examine the circumstances under which the plea was entered.  State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994).

            Appellant argues that he was crying for two hours and was emotionally distraught before he entered his guilty plea.  But there is nothing in the record to support his contention.  Also, the district court asked appellant on two occasions whether his plea was voluntary, and he responded, “Yes.”  Appellant testified as follows:

Prosecutor:   Just so we are clear, Mr. Theis, you read the statutes with your attorney, correct?

Appellant:  Yes.


Prosecutor:  And you are pleading guilty to engaging in nonconsensual sexual contact with S.B.?


Appellant:  Correct.


Appellant also acknowledged in the written plea petition that “I now make no claim that I am innocent.”  On this record, the plea agreement was the subject of lengthy negotiations, appellant voluntarily agreed to it, and the district court did not abuse its discretion by concluding that the plea was made voluntarily.  See State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997) (holding that when credibility determinations are crucial in determining whether a guilty plea was accurate, voluntary, and intelligent, “a reviewing court will give deference to the primary observations and trustworthiness assessments made by the district court”), review denied (Minn. June 11, 1997).

Appellant argues that his plea was not intelligently made because his attorney was not prepared to go to trial and did not point out exonerating evidence.  Appellant suggests that because there is a possibility that the allegations against him were contrived, the likelihood of his innocence requires the court to allow him to withdraw his plea.  A defendant’s plea is intelligently entered when he or she “understands the charges, the rights being waived and the consequences of the guilty plea.”  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).

Before the plea hearing, appellant’s counsel submitted two motions, two memoranda in opposition to motions by the prosecutor, appeared at two omnibus hearings, and arranged for a psychosexual evaluation of appellant in preparation for trial.  Appellant further acknowledged in the written plea petition that he had sufficient time to discuss his case with his attorney, including defenses, that he and his attorney were fully informed of the facts, and that he was satisfied with his attorney’s representation.  Appellant also testified that he had reviewed the plea petition with his attorney “line-by-line.”  The district court asked appellant on a number of occasions at the plea hearing whether appellant had any questions related to his plea, and appellant repeatedly stated, “No.”  Appellant cites no evidence in the record to support his contention that his former counsel was unprepared to go to trial or that his attorney had failed to inform him of exonerating evidence.

            Finally, appellant argues that the district court erred in concluding that the state would be prejudiced by allowing appellant to withdraw his guilty plea.  The district court concluded that because of the victim’s youth and the sensitive nature of the testimony, requiring her to reappear to testify long after she had already prepared to testify on the day of the plea hearing, and after she had already been told that testimony would be unnecessary, would prejudice the state.  The state argues that having to re-subpoena witnesses would also prejudice the state.

            While costs and inconveniences incurred by the state to protect the interests of justice in criminal proceedings should not be a bar to withdrawing a guilty plea, the time lapse between the original plea hearing and a new trial could affect the accuracy of any testimony.  Also, the sensitive nature of the crimes, the youth of the victim, and the parent-child nature of the relationship between victim and appellant lead us to the conclusion that the district court did not abuse its discretion by finding that allowing appellant to withdraw his guilty plea would significantly prejudice the state.

            Therefore, because the record demonstrates appellant’s knowing, voluntary, and intelligent assent to the plea agreement, and because the district court did not abuse its discretion in finding that allowing appellant to withdraw his guilty plea would prejudice the state, we conclude that “fairness” and “justice” did not require the district court to allow appellant to withdraw his guilty plea.