This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-2329

Melvin Leroy Francisco, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed June 17, 1997

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 95000603

Allan H. Caplan, Harlan Goulett, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for Appellant)

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

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

This appeal is from an order denying a postconviction petition seeking leave to withdraw a 1995 guilty plea to third-degree criminal sexual conduct. We affirm.

D E C I S I O N

Appellant Melvin Francisco was charged with one count of third-degree criminal sexual conduct for forcing an elderly woman whom he had driven to a medical appointment as part of his employment with Metro Mobility to engage in sexual penetration.

On the day of the scheduled Rasmussen hearing and trial, Francisco's attorney obtained a plea offer from the prosecutor calling for Francisco to serve 30 months in prison. According to the guilty plea transcript, Francisco and his attorney talked about the plea negotiation for over two hours. Francisco ultimately decided to plead guilty. He was questioned on the record by his attorney, who elicited from Francisco a factual basis for the plea. Francisco admitted that he had sexual intercourse with S.W., agreed that the circumstances had made her fearful, and stated he was "not going to disagree" with the claim that S.W. did not consent.

The district court sentenced Francisco to a prison term of 30 months, as provided in the agreement. Francisco later filed a postconviction petition seeking to withdraw his guilty plea, claiming the plea was involuntary and that his attorney "badgered me into taking the plea negotiation." At a hearing on the petition, the state called the attorney, who testified that Francisco was reluctant to accept the plea offer, that Francisco was "extremely upset" and tearful at times, but that he did not "badger" Francisco into pleading guilty.

This court reviews a postconviction order only to determine whether there is sufficient evidence to support the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). A postconviction court's decision will not be disturbed absent an abuse of discretion. Id.

The district court concluded that Francisco had failed to prove by a fair preponderance of the evidence that withdrawal of his guilty plea was necessary to correct a manifest injustice. See Minn. R. Crim. P. 15.05, subd. 1 (court shall allow a defendant to withdraw a guilty plea if it is necessary to correct a manifest injustice).

A guilty plea, to be valid, must be accurate, voluntary, and intelligent. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). In order for a plea to be accurate, a proper factual basis must be established. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). Leading questions were used to elicit from Francisco the factual basis for the guilty plea, a practice the supreme court has discouraged. Id. at 717; Shorter v. State, 511 N.W.2d 743, 747 (Minn. 1994). No case has held, however, that there is a manifest injustice requiring withdrawal of a plea solely because the court or counsel used leading questions to elicit it. Cf. Shorter, 511 N.W.2d at 746-47 (reversing denial of petition to withdraw guilty plea, based on withholding of exculpatory evidence, newly acquired evidence, and misgivings about use of leading questions to elicit plea).

Francisco's reluctance to plead guilty does not show the plea was involuntary. Francisco failed to state any misgivings about the plea when he had a chance to do so at sentencing. His argument that the district court should have taken notice of his claims of innocence in the PSI and questioned Francisco sua sponte about the voluntariness of his plea at sentencing is without merit. Defendants frequently minimize the offense or deny elements of it when asked to give their version in the PSI for purposes of determining the appropriate sentence. See, e.g., State v. Fett, 414 N.W.2d 783, 785 (Minn. App. 1987) (PSI reported that defendant denied responsibility), review denied (Minn. Dec. 22, 1987). A defendant has an opportunity to address these concerns to the court if he wishes to withdraw a guilty plea.

Francisco argues that the stricter standards for eliciting Alford and Norgaard pleas set forth in Ecker apply in this case. We disagree. Francisco did not maintain his innocence at the plea hearing, nor did he claim a lack of memory. He agreed that there was force or coercion and that S.W. did not consent. The plea was not an Alford plea, nor is there any evidence that it was intended to be. Further, Francisco stated in his postconviction petition that it was not an Alford plea. We conclude the evidence supports the postconviction court's finding that Francisco has not shown a manifest injustice requiring withdrawal of the guilty plea.

Affirmed.