This opinion will be unpublished and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

CX-96-2501

Douglas Andrew Anderson, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed August 5, 1997

Affirmed

Schumacher, Judge

Clay County District Court

File No. K8956

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)

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

Todd S. Webb, Clay County Attorney, Clay County Courthouse, Post Office Box 280, Moorhead, MN 56561 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Holtan, Judge.[*]

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

SCHUMACHER, Judge

This appeal is from a postconviction order denying appellant Douglas Andrew Anderson's petition to withdraw his 1995 guilty plea to felony harassment (pattern of conduct). See Minn. Stat. § 609.749, subd. 5(a), (b) (1994). We affirm.

FACTS

The state filed a complaint charging Anderson with felony stalking (pattern of harassing conduct), gross misdemeanor stalking, and obstructing legal process. The complaint alleged that between December 19, 1994, and December 30, 1994, Anderson engaged in a pattern of harassing conduct against B.L., that in the same period Anderson engaged in repeated harassing phone calls to B.L., and that Anderson later resisted arrest.

Anderson entered a guilty plea to the felony stalking charge, under a plea agreement calling for a stayed sentence and nine months of probationary jail time. The trial court asked Anderson several times whether he understood that he would not be allowed to withdraw the guilty plea. Anderson stated that he understood this. Defense counsel clarified that Anderson would be allowed to withdraw the plea if the presumptive sentence turned out to be an executed sentence or if the court decided to impose a harsher sentence than that provided in the agreement.

At the guilty plea hearing, Anderson admitted that he had pleaded guilty earlier to committing misdemeanor assault against B.L. on December 19, 1994, that he had made a significant number of phone calls to B.L. from that date until December 30, 1994, and agreed that particularly the calls on December 29 and 30 were uninvited calls of a nature that would cause a reasonable person to feel oppressed. He also admitted that the calls could have caused B.L. to fear another assault, and that he believed a reasonable person would feel a sense of fear.

After this court affirmed the conviction on direct appeal, Anderson filed a postconviction petition seeking to withdraw his guilty plea, arguing that because the supreme court decided in State v. Orsello, 554 N.W.2d 70 (Minn. 1996), that the stalking statute requires specific intent, the factual basis for his plea was inadequate. The postconviction court denied the petition.

D E C I S I O N

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 is not to be disturbed absent an abuse of discretion. Id. The trial court has discretion in deciding whether to grant withdrawal of a guilty plea, and its decision will not be reversed absent an abuse of discretion. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

A guilty plea must be accurate, voluntary, and intelligent. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). A proper factual basis must be established for a guilty plea to be accurate. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). But a defendant moving to withdraw his plea after sentencing must show a "manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. There is no authority holding it is a "manifest injustice" for a guilty plea to have been entered without a factual basis that anticipates a later interpretation of the statute defining the offense admitted in the plea.

This court has applied the Orsello interpretation of the stalking statute retroactively. See State v. Bowen, 560 N.W.2d 709, 712 (Minn. App. 1997) (reversing for trial on specific intent). But Anderson never challenged the intent element in the felony stalking statute, nor did he raise any issue regarding his mental state in calling B.L. Cf. id. (defendant had cited pending Orsello case in motion to trial court). He cannot point to any case finding a "manifest injustice" solely because the factual basis for the guilty plea was lacking. Cf. Shorter v. State, 511 N.W.2d 743, 746-47 (Minn. 1994) (plea withdrawal justified by inadequate factual basis, incomplete police investigation, and possible discovery violation hampering defense counsel from locating corroborating witnesses, and location of new witnesses).

This court has also reversed a harassment (stalking) conviction because the jury was not instructed on specific intent, as required in Orsello. State v. Loewen, ____ N.W.2d ____ (Minn. App. July 1, 1997). But in Loewen, the jury was instructed in accordance with this court's Orsello opinion, requiring only general intent. Id. Anderson pleaded guilty under the statutory language, which the supreme court in Orsello construed as language requiring specific intent. 554 N.W.2d at 75. Anderson's conviction is unaffected by this court's Orsello opinion or by any judicial construction of the statute, which Anderson himself did not seek.

Even if an inadequate factual basis constituted a "manifest injustice," the factual basis here was inadequate only for failing to anticipate the Orsello interpretation of the stalking statute. There is ample evidence to support the postconviction court's finding that the record shows that Anderson exhibited the specific intent to harass the victim.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.