This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Lon Meredith Knudson,


Filed March 9, 1999


Randall, Judge

Olmsted County District Court

File No. K3-97-2128

Michael A. Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, Cynthia K. Schneider, Certified Student Attorney, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

Gary A. Gittus, George F. Restovich & Associates, 117 East Center Street, Rochester, MN 55904 (for appellant)

Considered and decided by Short, Presiding Judge, Randall, Judge, and Holtan, Judge.[*]



Appellant challenges his conviction of fourth-degree criminal sexual conduct, asserting the district court abused its discretion by denying his motion to withdraw his guilty plea. We affirm.


On June 28, 1997, 14-year-old T.R. went with 11-year-old M.K., appellant Lon Meredith Knudson's daughter, to Knudson's house to baby-sit M.K.'s half-brother. T.R. and M.K. were asleep in the family room when Knudson and his wife returned home between 12:30 and 2:00 a.m. on June 29, 1997. T.R. alleged that at approximately 2:00 a.m., she woke up and found Knudson's hand up her shorts, under her underwear, and touching her vagina. According to T.R., Knudson removed his hand after she woke up, then showed her some perfume and asked her if it was the type his wife was wearing. T.R. told him it was the same type, and he left the room.

In a statement to police, Knudson admitted being in the room where the girls were sleeping sometime after he returned home. He stated that he had gone to get a bottle of perfume and had tripped on the pull-out couch where the girls were sleeping. He also stated that he fell on T.R.'s leg and that his hand may have inadvertently slipped under her shorts and touched her vagina.

Knudson was charged with one count of fourth-degree criminal sexual conduct. The day before trial, Knudson's attorney, Sherri Whalen, met in chambers with the prosecutor and the judge. The prosecutor stated that if Knudson was found guilty, he intended to move for an upward dispositional departure based on a violation of a position of trust. The judge indicated that he would consider the motion.

Whalen telephoned Knudson after she learned that the state was considering a motion for upward dispositional departure. She discussed Knudson's case with him and informed him that she thought his case was not very strong. She also explained that if he agreed to plead guilty pursuant to an Alford plea (also known as a Goulette plea),[1] the state would not move for an upward departure. According to Knudson's affidavit, Whalen made the telephone call to Knudson at approximately 2:00 p.m. and asked him to make his decision by 5:00 p.m. When Knudson requested more time, he was given until 7:30 p.m. to decide. At approximately 7:15, Knudson informed Whalen that he would enter an Alford plea.

At the guilty plea hearing the next day, the district court and the prosecutor questioned Knudson. Knudson stated that he understood his guilty plea petition and understood both the charge against him and the possible sentence. He also stated that he had reviewed with his attorney all of the evidence against him and that he was making his plea voluntarily.

After entering his guilty plea, Knudson hired a new attorney and moved to withdraw his plea. The district court denied this request, concluding that Knudson had not established that there was a "fair and just" reason for granting his motion. Knudson received a stayed 15-month sentence and a fine.


There is no absolute right to withdraw a guilty plea once it has been entered. Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994). The district court may permit a defendant to withdraw a plea before sentencing

if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea.

Minn. R. Crim. P. 15.05, subd. 2. It is defendant's burden to establish that there is a "fair and just" reason for the court to permit withdrawal of his plea. State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991). The district court's decision to accept a motion to withdraw a guilty plea based on whether "it is fair and just to do so" is a discretionary decision that may only be reversed on appeal if the district court abused its discretion. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

Knudson asserts that allowing him to withdraw his guilty plea would not have caused any "untoward delay of time." He notes that there would have been only a two-month delay if the district court had granted his motion because he entered his guilty plea January 27, 1998, the hearing on his motion to withdraw was held March 9, 1998, and the court denied his motion April 1, 1998.

The district court did not make a finding that withdrawal of Knudson's guilty plea would prejudice the prosecution. See Minn. R. Crim. P. 15.05, subd. 2 (requiring court to consider any prejudice to prosecution in deciding motion to withdraw guilty plea). The court did emphasize that the victim is a minor child and noted that allowing Knudson to withdraw his plea "would be very upsetting" to the child. See Kim, 434 N.W.2d at 267 (stating district court not unjustified in considering victim's interests).

Knudson also asserts that the district court improperly participated in plea negotiations and thereby coerced him to plead guilty. While questioning Knudson at the plea hearing, the prosecutor asked Knudson whether he understood that preliminary discussions had taken place between both counsel and the court and

that the Court at that time indicated that it would at least very seriously consider and listen to a request for upward departure should the State win at the trial level.

In its decision denying Knudson's request to withdraw his plea, the district court noted that during the pretrial hearing it had stated that the court "would likely be receptive" to a request for upward departure.

Knudson insists that the district court's statement that it would seriously consider a departure is similar to the district court's statements in State v. Moe, 479 N.W.2d 427 (Minn. App. 1992), review denied (Minn. Feb. 10, 1992). In Moe, when the defendant appeared at his plea hearing, the district court informed him that if he cooperated with police in the investigation of a different case, the court would deviate from the 28-month presumptive sentence and sentence him to a year and a day. Id. at 429. At sentencing, the district court stated that although the defendant deserved at least a 28-month sentence, the defendant cooperated with the other investigation, and the court therefore felt compelled to honor its agreement to grant a downward departure. Id. at 428-29. On appeal, this court held that the district court erred when it by directly participated in plea agreement negotiations. Id. at 430.

We are guided by Moe, but those facts are not our facts. In Moe, the district court directly informed the defendant that if he did "x," meaning cooperate, the court would do "y," meaning deviate downward. Here, on the other hand, the prosecutor and the defense counsel negotiated. The district court may have indicated that it would listen seriously to a request for an upward departure, but district courts should listen seriously and scrutinize requests for both upward departures and downward departures. Both are serious matters and a just sentence is the final goal. The district court's statement, which was paraphrased by the prosecutor at the plea hearing, probably did cause Knudson to take the prosecutor's threat to move for an upward departure more seriously. But the trial court did not directly negotiate a plea agreement as the district court did in Moe. Rather, the district court made Knudson fully aware of the possible consequences if he chose to go to trial and lost. See State v. Ecker, 524 N.W.2d 712, 719 (Minn. 1994) ("[A] defendant's motivation to avoid a more serious penalty or set of charges will not invalidate a guilty plea."). We have noted before the U.S. Supreme Court's comments in Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463 (1970):

"[W]e decline to hold that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged."

State v. Doughman, 340 N.W.2d 348, 353 (Minn. App. 1983) (quoting Brady, 397 U.S. at 751, 90 S. Ct. at 1470), review denied (Minn. Mar. 15 1984).

Knudson's final argument is that it is fair and just to permit him to withdraw his plea because of the "precipitous manner in which he was forced to make a decision." This argument seemingly relates to the facts surrounding Knudson's decision to plead guilty the night before his trial was to commence. He notes that his attorney called him at 2:00 p.m. on the day before trial and informed him that the prosecutor intended to recommend an upward dispositional departure if Knudson went to trial and was convicted. Although his counsel initially informed Knudson that he needed to decide by 5:00 p.m., Knudson was later given until 7:30 p.m. to make a decision.

Prior to accepting Knudson's plea, the district court questioned him:

Court: And you -- Do you have any reservations or doubt on your mind at this point -

Knudson: No.

Court: -- about going ahead?

Knudson: No sir.

Court: This is definitely what you'd like to do?

Knudson: Yes.

Knudson received what he bargained for when he agreed to plead guilty. The state did not move for an upward departure, and the court ordered the presumptive sentence. Knudson is now arguing that he should be allowed to withdraw his plea because he believes that he might win if he goes to trial. This belief is not, by itself, grounds for reversing a district court's refusal to permit a defendant to withdraw a plea. See State v. Tuttle, 504 N.W.2d 252, 256-57 (Minn. App. 1993) (concluding defendant's argument that he should be allowed to withdraw plea "because it was based on a mistaken apprehension of the strength of the state's case" was meritless).

We note that Knudson changed attorneys after he entered his plea. It appears Knudson's belief that he would not be convicted if he goes to trial is based on the opinion given to him by his new attorney. Knudson does not contend that he has gathered any new evidence since the time of his plea that would change the relative strength of the state's case. Cf. Shorter, 511 N.W.2d at 745-47 (reversing and ordering district court to grant defendant's motion to withdraw plea where police reopened investigation after defendant's plea and discovered additional evidence supporting defendant's innocence).

Based on the entire record, while the district court could have allowed Knudson to withdraw his plea, it did not abuse its discretion by denying Knudson's motion.


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

[1] Pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), the district court may accept a guilty plea even if a defendant maintains his innocence if the court concludes "'that there is evidence which would support a jury verdict of guilty and that the plea is voluntarily, knowingly, and understandingly entered.'" State v. Powell, 578 N.W.2d 727, 731 n.1 (Minn. 1998) (quoting State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977)).