This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Welfare of:
N. D. J.
Hennepin County District Court
File No. JX-04-053129
Leonardo Castro, Fourth District Chief Public Defender, Charlann E. Winking, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant N.D.J.)
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent State of Minnesota)
Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
N.D.J. appeals from a Hennepin County order adjudicating him delinquent, imposing disposition, and denying his motion to withdraw his guilty plea. N.D.J. pleaded guilty in Ramsey County, and the case was subsequently transferred to Hennepin County for disposition. Once in Hennepin County, a competency evaluator found N.D.J. incompetent to proceed with disposition. The Ramsey County public defender brought a motion in Ramsey County to withdraw N.D.J.’s guilty plea, but the court deferred to Hennepin County without entering judgment. N.D.J. was later deemed competent and disposition occurred. On appeal, N.D.J. argues that the guilty plea was not accurate or intelligent. We affirm.
Appellant N.D.J., born November 13, 1990, pleaded guilty to misdemeanor theft of property and felony aiding and abetting first-degree burglary in Ramsey County on June 1, 2004. In response to the theft charge, appellant admitted that he and two friends shoplifted shirts from a retail store. In response to the burglary charge, appellant stated that he and two other males entered a house without permission, whereupon appellant assisted in removing property that did not belong to any of the three males. Appellant’s competency was not questioned at the plea hearing. Venue was subsequently transferred to Hennepin County, where appellant resided, for disposition.
Appellant appeared in Hennepin County Juvenile Court in August 2004, where his defense counsel requested a competency evaluation pursuant to Minnesota Rules of Juvenile Delinquency Procedure 20.01. Dr. Bruce Renken completed the competency evaluation, dated September 7, 2004, noting that “[t]he defense attorney indicated that the question at this point [was] competency to proceed with disposition.” The competency evaluation concluded that “[appellant] is currently incompetent to proceed [with disposition] because of a combination of immaturity and emotional/behavioral disturbance.” Dr. Renken opined that appellant’s maturity would improve with time and that his emotional and behavioral deficiencies would benefit from treatment. Further, Dr. Renken suggested re-evaluation of appellant’s competency to proceed in six months.
Following the evaluation
finding appellant incompetent, appellant’s Ramsey County defense counsel filed
a motion in Ramsey County to withdraw appellant’s guilty plea.
A motion hearing was held on October 12, 2004, in Ramsey County, where the
court declined to rule on the motion, and instead, deferred to Hennepin County.
Appellant was absent from this hearing and no record was made regarding his whereabouts.
At the hearing, both the defense counsel and the prosecutor requested that
Ramsey County conduct its own competency evaluation but the court failed to rule on this issue.
On August 15, 2005, Ramsey County held a second hearing on appellant’s motion to withdraw his guilty plea, finding that appellant’s guilty plea was entered freely and voluntarily, and thereby denied the motion. Appellant was not present at this hearing but defense counsel stated on the record that appellant was in treatment.
Upon re-evaluation, appellant was found competent to proceed and on September 6, 2005, Hennepin County held a disposition hearing, at which appellant was present. Appellant again sought withdrawal of his guilty plea but was denied. The court denied appellant’s motion to withdraw his guilty plea, acknowledging that Ramsey County had already denied appellant’s motion. Appellant was subsequently adjudicated delinquent and ordered to complete a 90-120 day treatment program. This appeal followed.
D E C I S I O N
The first issue is the anomaly of venue. Here, because it was a juvenile proceeding and the offense happened in St. Paul, Ramsey County accepted the plea of guilty (and possibly would have conducted the trial on the merits, if there had been one), but then referred the sentencing (“disposition”) to Hennepin County, the juvenile’s residence. Generally, there is a constitutional right to be tried in the county in which the offense was committed, but such right is limited to “criminal prosecutions.” Minn. Const. art. I, § 6. Juvenile delinquents have most of the same rights as criminal defendants, and their cases are subject to some of the same procedures, however, juvenile matters are not technically “criminal prosecutions.” See In re Gault, 387 U.S. 1, 30-31, 87 S. Ct. 1428, 1445 (1967) (stating that juvenile proceedings need not conform with all of the requirements of a criminal trial, but such proceedings must satisfy the essentials of due process and fair treatment). If the courts are not going to observe the normal rule, where offense occurred is where it will be tried (“pled out”) and sentenced, then it would make more sense to transfer the entire matter to Hennepin County so the plea of guilty and the disposition would be in front of the same judge, which is customary and provides for continuity. A sentencing judge’s observations as to the demeanor and credibility of a defendant, either entering a plea of guilty or standing trial, can be a useful tool when fashioning a reasonable sentence (adult)/disposition (juvenile).
This would have
eliminated the involvement of two counties, and Ramsey County’s responsibility
for being cognizant of the timeline developing in Hennepin County. In the future, that needs to be looked at. However, there is nothing
“unconstitutional” about using a juvenile’s county of residence for
dispositions and placement, even if the offense happened elsewhere. See
Minn. Stat. § 260B.105, subd. 1 (2004) (“[V]enue for any proceedings . . .
shall be in the county where the child is found, or the county of the child’s
residence.”). The statute provides for the use of two counties,
but it did lead to problems for appellant, and the problems are appellate issues. Minn. Stat. § 260B.104, subd. 2 (2004).
The seminal issue in this case is whether appellant’s initial plea of guilty in Ramsey County was intelligent, voluntary, and offered with knowledge of his constitutional rights. If that be the case, then just because the disposition and competency hearings (to be discussed) happened in Hennepin County, a reversal and new trial are not mandated.
Appellant argues that the district court erred by denying his motion to withdraw his guilty plea. A defendant is not afforded an absolute right to withdraw a guilty plea. State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004) (citing Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). “The district court is vested with broad discretion in determining whether a defendant should be allowed to withdraw a guilty plea. An appellate court will reverse the district court’s determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion.” In re Welfare of S.L., 663 N.W.2d 31, 34 (Minn. App. 2003) (citation omitted). A juvenile may request to withdraw a guilty plea, and the court may allow withdrawal:
(A) before disposition, if it is fair and just to do so, giving due consideration to the reasons the child gives and any prejudice that withdrawal of the plea would cause because of actions taken in reliance on the child’s plea; or
(B) at any time, upon showing that withdrawal is necessary to correct a manifest injustice.
Minn. R. Juv. Delinq. P. 8.04, subd. 2.
The fair and just requirement precludes a defendant from withdrawing a guilty plea “for any reason or without good reason.” Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). In applying the fair and just standard, “the [district] court is to give due consideration not just to the reasons advanced by the defendant but to any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.” Id. The defendant has the burden of proving that there is a fair and just reason to withdraw his plea. State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991).
Appellant argues that the district court should have permitted withdrawal of his guilty plea, under the fair and just standard, based on the substantial evidence of his incompetence. We disagree. The evidence of appellant’s incompetence consists of a psychological evaluation, conducted three months after appellant pleaded guilty, questioning only appellant’s competency to proceed with disposition. The evaluation did not address appellant’s competency at the time of pleading and the question of competency to plead guilty is restricted to the defendant’s ability at the time of the plea. See Weisberg v. Minnesota, 29 F.3d 1276-78 (8th Cir. 1994) (holding that a defendant is competent if he has sufficient present ability to enter a guilty plea).
When appellant pleaded guilty, his competency was not an issue. Defense counsel never questioned appellant’s competence to plead guilty, and neither did the court or the prosecutor. See Minn. R. Juv. Delinq. P. 20.01, subd. 3 (“The prosecuting attorney, the child’s counsel or the court shall bring a motion to determine the competency of the child if there is reason to doubt the competency of the child during the pending proceedings.”). Appellant failed to provide any evidence of his incompetence at the time he entered his initial plea of guilty in Ramsey County.
Appellant next argues that he should have been permitted to withdraw his guilty plea in order to correct a manifest injustice. Specifically, appellant argues that a manifest injustice resulted from the court’s failure (1) to fully advise him of his rights; (2) to advise him of the consequences of waiving his rights; (3) to establish a factual basis for the offense; and (4) to conduct a hearing on his competence.
A guilty plea is validly entered if it is intelligent, voluntary, and accurate. In re Welfare of J.J.R., 648 N.W.2d 739, 742 (Minn. App. 2002). Generally, a court may allow a juvenile to withdraw a guilty plea at any time, upon a showing that withdrawal is necessary to correct a manifest injustice. Id. A manifest injustice exists when a defendant can show that his guilty plea was not “accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).” Perkins, 559 N.W.2d at 688.
“To be accurate, the plea must be supported by a proper factual basis. Although the district court need not personally conduct an interrogation to establish a factual basis for a plea, it is the court’s responsibility to ensure that an adequate factual basis is shown in the record.” J.J.R., 648 N.W.2d at 742 (citations omitted); see Minn. R. Juv. Delinq. P. 8.04, subd. 1(A) (stating that the district court “shall not accept” the plea unless “there is a factual basis for the guilty plea”).
Appellant admitted aiding and abetting first-degree burglary. If an accomplice aided another in the commission of a crime, that person is just as guilty as the one who committed the crime. 10 Minnesota Practice, CRIMJIG 4.01 (2005). A person is guilty of first-degree burglary if a person
enters a building without consent and
with intent to commit a crime, or enters a building without consent and commits
a crime while in the building, either directly or as an accomplice . . . if:
(a) the building is a dwelling and another
person, not an accomplice, is present in it when the burglar enters or at any time while the burglar is in the building.
Minn. Stat. § 609.582, subd. 1(a) (2004).
Here, defense counsel questioned appellant on the record. Defense counsel established that she and appellant had spent “quite a lot of time” discussing the burglary charge. Defense counsel confirmed that appellant understood what they had discussed, that he had the option of pleading guilty or not guilty, and what the consequences were of entering a guilty plea. Subsequently, defense counsel questioned appellant on the facts of the case and appellant responded affirmatively, acknowledging the essential elements of the crime charged. Through defense counsel’s questioning, appellant admitted sufficient facts to support his guilty plea.
Appellant also argues that the record does not establish that his plea was intelligent. A defendant’s plea is intelligent if the defendant understands the charges, his rights under the law, and the consequences of pleading guilty. Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998). The Minnesota Supreme Court has stated that
[i]n the absence of any affirmative
showing to the contrary, there is a controlling presumption that
court-appointed counsel in a criminal case not only has consulted
with his client, the accused, but also has advised him in good faith of his rights in entering a plea of guilty or not guilty.
State ex rel. Drysdale v. Tahash, 278 Minn. 361, 367, 154 N.W.2d 691, 695 (1967).
Appellant argues that the court failed to question him to ensure he understood the charges or the consequences of waiving his rights. Instead, appellant argues that the court simply addressed the public defender regarding appellant’s intent to plead guilty and accepted counsel’s assertion that appellant understood and waived his rights. At the plea hearing, the court did not directly question appellant; however, on the record, defense counsel did. As previously discussed, defense counsel inquired about the amount of time appellant had spent with the public defender discussing the charges, the available plea options, the meaning of each option, and the consequences of pleading guilty.
A juvenile’s guilty plea is assessed based on “the totality of the circumstances.” Minn. R. Juv. P. Delinq. 8.04, subd. 1. Based on the total record, we conclude appellant’s guilty plea was voluntary and intelligent.
Appellant argues that he was denied due process when the Ramsey County District Court refused to conduct a second competency hearing and when he was not present at hearings affecting his substantial rights. This is a close question.
“[T]he court has a continuing obligation to inquire into a juvenile’s fitness for trial where substantial information or the juvenile’s observed demeanor raises doubts as to his competency.” In re Welfare of S.W.T., 277 N.W.2d 507, 512 (Minn. 1979). A court or the attorneys may “bring a motion to determine the competency of the child if there is reason to doubt the competency of the child during the pending proceedings.” Minn. R. Juv. Delinq. P. 20.01, subd. 3. An appellate court shall independently review the record to determine whether the district court drew proper inferences from the evidence bearing on competency. In re Welfare of D.D.N., 582 N.W.2d 278, 281 (Minn. App. 1998).
Appellant argues that the Ramsey County District Court erred by failing to conduct a competency hearing or to decide on appellant’s competency based on the record. Both defense counsel and the prosecutor requested that Ramsey County conduct its own competency hearing. However, Ramsey County deferred to Hennepin County. Ramsey County’s order stated that it “[reserved] further hearing and ruling on this Motion” and then simply deferred to Hennepin County. Such shuttling between the counties complicated and delayed resolution of this matter. We do not encourage this practice. In Ramsey County, when both appellant’s attorney and the prosecutor jointly requested that Ramsey County conduct its own competency hearing, no injustice would have been done had Ramsey County conducted its own independent hearing (again pointing out the anomaly, the delay, and the relative inefficiency of having two different counties involved simply because the offender was a juvenile).
Under the rules of juvenile procedure, a child has a right to be present at all hearings. Minn. R. Juv. Delinq. P. 2.03, subd. 1. Appellant contends that his absence at hearings concerning his competency, particularly where the presiding judges had never spoken with or seen him, was not harmless error. Appellant further contends that because his competency was at issue, observing his behavior and demeanor could have been the “best evidence.”
“The harmless error standard of review applies to errors involving constitutional rights.” In re Welfare of D.T.N., 508 N.W.2d 790, 797 (Minn. App. 1993) (citing State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988)), review denied (Minn. Jan. 143, 1994). Appellant must establish prejudice resulting from a court’s action in order to succeed on appeal. Id. “A reviewing court will not reverse a trial court for an error that it can see did not change the result.” Id. (citing Miller v. Hughes, 259 Minn. 53, 62, 105 N.W.2d 693, 699 (1960)).
Appellant was absent from two hearings addressing his competency at the time of his pleading guilty. First, on October 12, 2004, Ramsey County declined to rule on his competency. As stated, it would not have been inappropriate to have an independent exam in Ramsey County at that time. But since the court declined to rule, it is difficult to conclude there was substantial prejudice to appellant since “nothing happened.” The record shows appellant had competency hearings in Hennepin County (not to plead but to proceed with disposition) and after an initial finding of incompetency to proceed, there was a later finding of competency to proceed. The record in both Ramsey and Hennepin County do not show any evidence challenging appellant’s competency to plead guilty other than a finding 90 days later that he was incompetent to proceed with disposition. That finding, not that long after a plea of guilty, cannot be ignored, but is not, standing alone, enough to warrant reversal. A second evaluation six months later found appellant competent to proceed with disposition, and disposition occurred.
If Ramsey County had, pursuant to the October joint motion of defense and prosecution, held a hearing/evaluation on appellant’s competency and ruled that appellant had not borne his burden of proof to show he was incompetent at the time he pleaded guilty, the record we are looking at would have (hypothetically) supported that conclusion, and then the record would be complete.
With regard to the August 15, 2005 hearing in Ramsey County without appellant present, we find appellant effectively waived his right to be present because he was in treatment and his public defender made a record of this absence and his location during the hearing.
It is not apparent that the results of the missed hearings would have differed had appellant been present.
The real issue remains whether appellant’s original plea of guilty was voluntary and intelligent. We cannot conclude that it was not.
 The following statement appeared in the Ramsey County public defender’s affidavit accompanying the motion to withdraw appellant’s guilty plea: “At the time of his plea, I did not make any personal observations indicating that [appellant] may lack the competency to proceed pursuant to Minnesota Rules of Juvenile Procedure, Rule 20.01.”
 As of the time of this hearing, which followed the rule 20.01 evaluation, Hennepin County had not yet issued a judicial finding on appellant’s competency. The Ramsey County court expressed discomfort with the evaluation and with ruling on an issue which Hennepin County had taken under advisement. The court was concerned and uncomfortable with the report for the same reasons expressed by the prosecutor. First, the psychologist provided appellant with inaccurate information in order to assess his response, which was anger. Second, appellant’s responses indicated that he understood the court process. The court stated that it was unprepared to make a finding during the hearing but commented that appellant appeared, from the report, to be more oppositional than incompetent.
 Kim specifically addresses Minn. R. Crim. P. 15.05, subd. 2, granting the court discretion to accept a defendant’s guilty plea withdrawal. Rule 15.05, subd. 2, differs from Minn. R. Juv. Delinq. P. 8.04, subd. 2, in that the former permits withdrawal before sentencing while the latter permits withdrawal before disposition.
 Respondent contends that appellant waived his arguments of inadequate factual basis and lack of intelligence by failing to make such assertions in district court. Appellant may have failed to use this exact language, however, the general issue was raised below and is thus properly before this court. Additionally, the appellate court may consider such issues in the interests of justice. See State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997) (concluding that appellate court may consider issue first raised on appeal only where the interests of justice require).
 “Dwelling” is defined as “a building used as a permanent or temporary residence.” Minn. Stat. § 609.581, subd. 3 (2004).