This opinion will be unpublished and

may not be cited except as provided by

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





Kevin John Motz, petitioner,



State of Minnesota,


Filed October 21, 1997


Norton, Judge

Ramsey County District Court

File No. K1-95-3571, K3-94-516

Harlan Goulett, Adjunct Professor of Constitutional Law, Hamline University, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange, Ten 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)

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for Respondent)

Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Willis, Judge.



Appellant alleges that the postconviction court erred: (1) in refusing to allow him to withdraw his guilty pleas; and (2) in dismissing his petition for postconviction relief without a factual hearing to resolve disputed matters. Appellant's request to withdraw his first guilty plea was untimely. The postconviction court did not err in refusing to allow appellant to withdraw his second guilty plea. We affirm.


Appellant Kevin John Motz appeals from the postconviction court's denial of his petitions for postconviction relief in two cases. Case 1 evolved from appellant's violation of a December 17, 1993, temporary restraining order ordering appellant to have no contact with complainant. At this time, appellant was 30 years old and complainant was 16-years old and mildly retarded. Despite the order, from December 17, 1993 to February 14, 1994, appellant followed, pursued, and made phone calls to complainant. Appellant was charged with felony harassment in violation of Minn. Stat. § 609.749. Appellant pleaded guilty to the charge (Case 1).

At appellant's guilty plea hearing, the prosecutor asked him if he harassed complainant by making telephone calls, by being near her home or in her yard, by driving by her home, and following her to school. Appellant answered, "Yes." When asked if he agreed that all of those events scared complainant, appellant responded, "I do now. I didn't realize that before until I read her statement." Appellant conceded that his behavior interfered with complainant's privacy and her liberty to go about. Following this exchange, the court accepted appellant's guilty plea and sentenced him to 17 months probation. On December 15, 1994, at appellant's request, the sentence was changed to an executed 17-month sentence.

On October 13, 1995, appellant was released from prison and placed on probation with the condition that he have no contact with the complainant or her mother. From October 18, 1995, to November 1, 1995, appellant repeatedly visited their residence. Due to appellant's violation of his probation condition, he was charged with pattern of harassing conduct against the mother (mother). Appellant pleaded guilty to the charge (Case 2).

At appellant's sentencing hearing, the assistant county attorney asked appellant if he agreed that going to the residence in an attempt to talk to complainant would cause fear in mother. Appellant admitted that if mother saw him at the residence she would feel terror. Appellant said that he only went to the residence to talk to complainant, not terrorize mother. In conclusion, appellant stated that

I accept responsibility for my actions whether they were wanted or unwanted. I received phone calls and I was under the impression that [complainant] would talk to me, but right now I don't know what to think about those, whether they were just someone setting me up or whatever.

But I do take the responsibility for my actions and I do believe that [complainant] is afraid of me. And I do believe that [mother] is afraid of me because she doesn't know what I might -- my actions might be. But at no time did I ever mean to go to the residence or by the residence to frighten them or to terrorize them in any way. I don't -- like I say, I do know pretty much who called me, but I should have stayed away no matter what. I shouldn't have bought into it. I felt that maybe she would listen to what I had to say.

Following the hearing, appellant was sentenced to 58 months in prison.

On November 15, 1996, appellant filed a petition for postconviction relief in Case 1. Appellant contended that the postconviction court should withdraw his plea of guilty and vacate his conviction. Appellant argued that his guilty plea was not accurate, knowing, or intelligent because he believed the state would not be required to prove he had the specific intent to "harass" under Minn. Stat. § 609.749. Appellant observed that State v. Orsello, 554 N.W.2d 70 (Minn. 1996), decided September 12, 1996, requires the state to show the offender has the specific intent to "harass" in order to obtain a conviction under the stalking statute. The postconviction court dismissed appellant's petition concluding the petition was "grossly untimely" because more than a year had expired since the completion of appellant's prison sentence. Further, the court found that appellant admitted to the requisite specific intent due to his affirmative answer to the following question at his sentencing hearing: "And you would agree that what you did interfered with her privacy and her liberty to go about?"

Shortly thereafter, appellant filed a petition for postconviction relief in Case 2 raising the same allegations. On February 20, 1997, the postconviction court dismissed this petition for postconviction relief. The court found that appellant's motion to withdraw his guilty plea was untimely and that appellant's plea was not due to coercion or confusion. Furthermore, the court found that the record contained a sufficient basis for a finding of specific intent due to appellant's admissions and his conduct of repeatedly returning to complainant's residence.

On April 4, 1997, this court consolidated Case 1 and Case 2 for purposes of appeal.


Appellant contends that the postconviction court erred by dismissing his petition for postconviction relief. When seeking postconviction relief, a petitioner has the burden of establishing, by a fair preponderance of the evidence, facts which warrant a reopening of the case. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993); Minn. Stat. § 590.04, subd. 3. Review of postconviction proceedings is limited to whether there is sufficient evidence in the record to sustain the findings of the postconviction court. Rainer, 502 N.W.2d at 787. Absent an abuse of discretion, a postconviction court's decision will not be disturbed. Id.

Appellant argues that the postconviction court erred in dismissing his petition to withdraw his guilty pleas because they were not accurate, knowing, and intelligent. The decision whether to permit a plea of guilty to be withdrawn is left to the sound discretion of the trial court. Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). Furthermore, there is no absolute right to withdraw a guilty plea once it is entered. Id.

The state argues that the postconviction court properly determined that appellant's motion to withdraw his guilty plea in Case 1 was untimely. The state submits that appellant's motion was untimely because it was made two and one-half years after the original plea and more than one year after the expiration of the sentence. Appellant contends that his motion was not untimely because it was made merely seven weeks after the Orsello decision was handed down.

It is within the trial court's discretion to determine whether a defendant's motion to withdraw a guilty plea is untimely. State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986), review denied (Minn. Feb. 14, 1986); see also Minn. R. Crim. P. 15.05, subd. 1 cmt. (determination of whether motion for withdrawal of plea is timely is "left by the rule to judicial decision"). If the attempt to withdraw is made after sentencing, as it was in this case, the burden is on the defendant in a postconviction proceeding to prove by a preponderance of the evidence facts which would warrant withdrawal of the plea. State v. DeZeler, 422 N.W.2d 32, 36 (Minn. App. 1988), affirmed on other grounds, 427 N.W.2d 231 (Minn. 1988).

Not only was appellant's attempt to withdraw his guilty plea in Case 1 after sentencing, but it was more than a year after his release from prison for the offense. Given this, we cannot conclude that the postconviction court abused its discretion in concluding that appellant's motion to withdraw his plea in Case 1 was "grossly untimely." However, appellant's motion to withdraw his guilty plea in Case 2 was timely and, as discussed below, meets the requirements for a valid guilty plea.

A defendant is entitled to withdraw a guilty plea if withdrawal is necessary to correct a "manifest injustice." State v. Ecker, 524 N.W.2d 712, 715-16 (Minn. 1994); Minn. R. Crim. P. 15.05, subd. 1 (1996). In order to be a valid guilty plea, a plea must be knowing, intelligent, and accurate. Ecker, 524 N.W.2d at 716. Furthermore, a proper factual basis must be established. Id. at 717.

Appellant argues that his plea was not knowing and intelligent because he did not understand that the state would be required to prove he had the specific intent to "harass." See Minn. Stat. § 609.749, subd. 1(1) (1996) ("harass" means to engage in conduct that causes reasonable person to feel "oppressed, persecuted, or intimidated"). Appellant contends that he is entitled to replead under State v. Bowen, 560 N.W.2d 709, 712 (Minn. App. 1997) (holding that in pattern of harassing conduct case Orsello requires a finding of specific intent to "harass").

The Orsello interpretation of the stalking statute is applied retroactively. State v. Loewen, 565 N.W.2d 714, 716 (Minn. App. 1997). In Loewen, this court reversed a stalking conviction because the jury was not instructed on the element of specific intent. Id. at 716. The jury was erroneously instructed in accordance with Orsello, requiring the state to prove general intent. Id. at 715. Here, appellant pleaded guilty under the statutory language, which the supreme court in Orsello interpreted as language requiring specific intent. Orsello, 554 N.W.2d at 75. Appellant's case was never submitted to a jury. Therefore, appellant's conviction is unaffected by this court's opinion in Orsello or by any judicial construction of the statute.

Furthermore, it is has never been held that entering a guilty plea without a factual basis that anticipates a later interpretation of a statute constitutes "manifest injustice." Nor is there support for the theory that manifest injustice results solely because the factual basis for a guilty plea is lacking. Shorter, 511 N.W.2d at 746-47 (holding plea withdrawal justified as result of incomplete police investigation, inability to locate corroborating witnesses, and inadequate factual basis).

In this case, the record supports the postconviction court's finding that appellant exhibited the specific intent to harass the complainant. The factual basis was established due to appellant's admissions at his sentencing hearing. More importantly, appellant is not entitled to withdraw his guilty plea simply because the postconviction court failed to anticipate Orsello's interpretation of Minn. Stat. § 609.749.

The postconviction court properly found appellant's motion to withdraw his guilty plea in Case 1 was untimely. In addition, the record contains a sufficient factual basis for a finding of specific intent due to appellant's admissions and his conduct of repeatedly returning to complainant's residence. As such, we decline to disturb the postconviction court's decision.