This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota, City of Blaine,



Rodrick Hill,


Filed February 25, 1997


Willis, Judge

Anoka County District Court

File No. T1968098

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Paul T. Ostrow, Sweeney, Borer & Ostrow, 386 North Wabasha Street, Suite 1200, St. Paul, MN 55102 (for Respondent)

Clayton M. Robinson, Jr., First National Bank Building, Suite E 1401, 332 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Considered and decided by Willis, Presiding Judge, Parker, Judge, and Peterson, Judge.



Rodrick Hill appeals the district court's denial of his motion to withdraw his plea of guilty to driving after suspension, arguing there is an insufficient factual basis to support the plea. We reverse.


On March 10, 1996, Hill was charged with speeding and driving after suspension. At the plea hearing, Hill appeared pro se. The district court told Hill that the prosecutor had agreed to dismiss the speeding charge and limit jail time on the driving after suspension charge to 15 days. The district court further stated that Hill "can always plead guilty and enter an explanation if you think you have what's called a sentencing issue." Hill said that he wanted to plead guilty and make a statement. He agreed that he had been driving, but denied knowing that his license had been suspended. Hill explained that his ignorance of the suspension stemmed from the fact that he alternates residences, and thus driver's licenses, between Minnesota and Canada. He claimed that his Minnesota license was suspended when he was living in Canada. The district court accepted Hill's guilty plea, ordered him to serve 90 days in the county correctional facility and pay a $700 fine, and stayed 80 days of the sentence and $500 of the fine.

Hill obtained counsel and moved to withdraw the guilty plea, alleging that he was not aware of the consequences of the plea and that he would not have pleaded guilty if he had received independent legal advice. The district court denied Hill's request to withdraw his plea. This appeal followed.


Once a guilty plea has been entered, the defendant does not have an absolute right to withdraw it. Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). The court, however, must allow a defendant to withdraw a guilty plea, even after sentencing, if the defendant shows that "withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. Absent a clear abuse of discretion, this court will not reverse the district court's decision regarding the withdrawal of a guilty plea. State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986), review denied (Minn. Feb. 14, 1986).

The district court may not accept a guilty plea

unless the record supports the conclusion that the defendant actually committed an offense at least as serious as the crime to which he is pleading guilty.

State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983). The district court has the "primary responsibility to advise and interrogate the defendant in sufficient detail to establish an adequate factual basis for the plea." Shorter, 511 N.W.2d at 747. When a defendant pleads guilty without counsel "the factual basis requirement is particularly important to show that the defendant has made a voluntary and intelligent plea." State v. Lyle, 409 N.W.2d 549, 552 (Minn. App. 1987).

Hill entered of plea of guilty to driving after suspension, which requires that:

(1) the person's driver's license or driving privilege has been suspended;

(2) the person has been given notice of or reasonably should know of the suspension; and

(3) the person disobeys the order by operating in this state any motor vehicle, the operation of which requires a driver's license, while the person's license or privilege is suspended.

Minn. Stat. § 171.24, subd. 1 (1996). Hill contends there is an insufficient factual basis to support his guilty plea because the record contains no facts showing he was given notice of or reasonably should have known of the suspension and therefore withdrawal of his plea is necessary to correct a manifest injustice. We agree.

Hill denies having actual knowledge of the suspension. But actual notice is not necessary if (1) the notice is mailed to the person's last known address or to the address listed on the person's driver's license or (2) the person was informed that suspension would be imposed upon the occurrence of a condition and the condition has in fact occurred. Minn. Stat. § 171.24, subd. 7 (1996). There is, however, no record evidence that Hill had constructive notice of the suspension pursuant to section 171.24 or that he reasonably should have known of the suspension.

The state cites State v. Bryant, 378 N.W.2d 108 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986), for the proposition that any failure to meet the notice requirement is not fatal in light of other evidence that Hill was driving after suspension. In Bryant, this court held that the defendant's failure to admit on the record an element of the offense of fourth-degree criminal sexual conduct was "not fatal in light of the other overwhelming evidence." Id. at 110. That case is distinguishable because the defendant there was questioned at length about his understanding of the charges and the consequences of the plea, he discussed the case with his attorney, and his criminal history made it unlikely that he did not understand what he was doing. Id. By contrast, the district court here did not clearly identify to Hill the elements of the charged offense, Hill proceeded pro se, and Hill had no criminal history.

The state argues that the issue of whether there is a factual basis for Hill's guilty plea is not properly before this court because it was not presented to the court below. See Rouland v. Thorson, 542 N.W.2d 681, 684 (Minn. App. 1996) (concluding that the reviewing court will not consider issues that the lower court has not first considered and decided). The supreme court, however, has considered on the merits the validity of a guilty plea that had been challenged on different grounds in the district court. See Kim v. State, 434 N.W.2d 263, 265 (Minn. 1989). The state is not prejudiced by the fact that Hill's challenge was made on a different ground below because the adequacy of the facts to support a plea is determined from the record of the plea hearing.

The record does not contain an adequate factual basis to support Hill's plea of guilt to driving after suspension. The district court abused its discretion by denying Hill's request to withdraw his guilty plea.