may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
File No. K696787
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for respondent),
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for appellant),
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for appellant).
Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a postconviction order that (1) granted respondent Kevin Albert Olson's motion to withdraw his guilty plea to one count of felony harassment, (2) vacated Olson's conviction for felony harassment, and (3) ordered Olson returned to district court for further proceedings, appellant State of Minnesota argues that specific intent is not an element of felony harassment and that the record demonstrates a sufficient factual basis for Olson's guilty plea. We reverse.
On January 19, 1996, Olson left six messages on Bierbrauer's telephone answering machine requesting the return of his property. On January 22, 1996, Olson left two more messages on Bierbrauer's answering machine requesting the return of his property. Olson was charged with engaging in a pattern of harassing conduct in violation of Minn. Stat. § 609.749, subd. 5 (Supp. 1995).
Olson pleaded guilty to the charge. During the plea hearing, Olson stated, "I didn't threaten her at all, sir. I just wanted to get my property. I didn't want to terrorize her or anything." Olson also admitted that Bierbrauer could have interpreted his calls to be a form of harassment. Olson was sentenced to a stayed term of 23 months and placed on probation for five years. In December 1996, Olson violated the terms of his probation and his sentence was executed.
In April 1997, Olson filed a petition for postconviction relief requesting that he be allowed to withdraw his guilty plea and proceed to trial because under State v. Orsello, 554 N.W.2d 70 (Minn. 1996), the state was required to prove that he had the specific intent to engage in a pattern of harassing conduct. Olson argued that at the time of his plea "he did not know, and could not have known, the nature and elements of the crime with which he was charged." Therefore, he was under a mistaken understanding of the nature and elements of the offense with which he was charged, he was unable to make an informed decision regarding his available alternatives, and, as a result, pleaded guilty to a more serious charge then he could have been convicted of had he gone to trial.
D E C I S I O N
The postconviction court permitted Olson to withdraw his guilty plea because it concluded that, under Orsello, "Minn. Stat. § 609.749 is a specific intent offense requiring proof that the actor intended to engage in harassing conduct" and, therefore, Olson did not make an informed and intelligent plea.
The supreme court recently released State v. Mullen, ___ N.W.2d ___ (Minn. Apr. 30, 1998). In Mullen, the supreme court explained that, unlike proving a violation of Minn. Stat. § 609.749, subds. 1 and 2, which requires proof of specific intent, proving a violation of Minn. Stat. § 609.749, subd. 5, requires proof of only general intent. ___N.W.2d ___, 1998 WL 208652, at *5.
We find Mullen dispositive of Olson's request for postconviction relief. Contrary to Olson's claim, proving a violation of Minn. Stat. § 609.479, subd. 5, does not require proof of specific intent. Therefore, when Olson pleaded guilty, he was not under a mistaken understanding of the nature and elements of the offense with which he was charged, and it is not a manifest injustice to allow his plea to stand.