This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Damien Dean Smith,


Filed June 16, 1998

Reversed and Remanded

Kalitowski, Judge

St. Louis County District Court

File No. K397600075

Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Alan L. Mitchell, St. Louis County Attorney, Courthouse, 100 N. Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)

Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

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



Appellant challenges the district court's denial of his motion to withdraw his guilty plea, arguing the district court erred by: (1) failing to hold a necessary evidentiary hearing on the motion; and (2) allowing him to proceed without counsel. We reverse and remand.


"Once a guilty plea has been entered, there is no absolute right to withdraw it." Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). The ultimate decision of whether to allow a defendant to withdraw a guilty plea before sentencing is within the sound discretion of the district court, and we will reverse that decision only if the district court abused that discretion. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

In determining whether there has been an abuse of discretion, [the appellate] court must consider all facts and surrounding circumstances which form the basis of the trial court's determination.

State v. Hayes, 276 Minn. 384, 386, 150 N.W.2d 552, 553-54 (1967).

The district court may permit a defendant to withdraw a guilty plea if "withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. The court can also allow withdrawal before sentencing "if it is fair and just to do so." Minn. R. Crim. P. 15.05, subd. 2. The prerequisites for a valid guilty plea are that it is "accurate, voluntary, and intelligent." State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). If the guilty plea lacks these prerequisites, manifest injustice results, and thus, the plea may be withdrawn. Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

When considering a motion to withdraw a guilty plea, the district court has the discretion to deny a defendant an evidentiary hearing if it is unnecessary. Saliterman v. State, 443 N.W.2d 841, 843 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989). However, the supreme court has stated that

where a defendant attempting to withdraw a plea petitions a district court with factual allegations indicating the need for a hearing, he should be given one.

Shorter, 511 N.W.2d at 747. Here, appellant claimed he was coerced by his attorney into pleading guilty. When submitting a motion to withdraw based on coercion, a defendant "is entitled to a plenary evidentiary hearing at which he may testify as to the alleged coercion." State v. Kaiser, 469 N.W.2d 316, 320 (Minn. 1991) (footnote omitted). In order to make the necessary findings of fact regarding whether defendant's attorney coerced him into a plea, the district court must allow the defendant to testify. Id. at 319.

Appellant brought a pro se motion to withdraw his guilty plea at his sentencing hearing. Only appellant and his mother testified, but neither addressed the factors required to establish a claim of coercion. Further, the two family members appellant alleged also coerced him into pleading guilty did not testify, and the district court did not ask appellant whether he pleaded guilty voluntarily or was coerced. We conclude that under these facts, including the fact appellant was not represented by counsel as discussed below, the district court did not provide appellant a proper evidentiary hearing for the purpose of resolving factual issues raised by his motion to withdraw his guilty plea.

We further conclude the record here does not contain a knowing and intelligent waiver by appellant of his right to representation for his motion to withdraw. When considering a motion to withdraw a guilty plea because of alleged coercion on the part of defendant's attorney, the supreme court stated:

it is questionable whether defendant's present counsel should represent defendant at such a hearing because he is a potential witness as to his own alleged coercion of defendant.

Kaiser, 469 N.W.2d at 320. The court added in a footnote:

Rather, the claim was that defense counsel coerced defendant to plead guilty. (That being so, defense counsel probably should have withdrawn and defendant should have been represented by a different attorney at the hearing on his motion, because defense counsel himself was a potential witness on defendant's behalf.)

Id. at 318, n.2.

Although in another case the supreme court held it was clear from the surrounding circumstances that the defendant was fully aware of the consequences of proceeding pro se, it said:

a court should make a "comprehensive examination of the defendant [regarding] his comprehension" of the charges against him, the possible punishments, the defenses, mitigating circumstances, and any other facts relevant to an understanding of the consequences of the waiver.

State v. Krejci, 458 N.W.2d 407, 412 (Minn. 1990) (quoting State v. Rubin, 409 N.W.2d 504, 506 (Minn. 1987)).

Here, the district court did not ask appellant specifically if he had waived his right to counsel. See State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990) (concluding that when criminal defendant asks to represent himself, the district court must determine "(1) whether the request is clear, unequivocal, and timely, and (2) whether the defendant knowingly and intelligently waives his right to counsel") (footnote omitted). Although appellant's former attorney was present, he properly stepped aside because under these facts he was not an appropriate person to act as standby counsel. See State v. Savior, 480 N.W.2d 693, 695 (Minn. App. 1992) (holding the district court erred when failing to appoint standby counsel for a defendant who dismissed his public defender).

We conclude, as suggested in Kaiser, that on these facts appellant had a right to counsel on the motion when his attorney had withdrawn. The need for counsel was apparent here because the record indicates appellant was unable to address properly the necessary issues when representing himself. We therefore conclude the district court erred by failing either to provide appellant with counsel, or in obtaining appellant's knowing and intelligent waiver on the record. We express no opinion concerning the merits of appellant's motion to withdraw but remand this case for further proceedings consistent with this opinion.

Finally we note that on remand following the evidentiary hearing, the district court should make findings of fact, a determination of whether the plea was coerced, and, if the court determines the plea was not coerced, a determination of whether the motion to withdraw should be granted under the "fair and just" standard. Kaiser, 469 N.W.2d at 319 (concluding this court should have remanded the case to the district court for these determinations).

Reversed and remanded.