This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Tammy Kay Ewing,


Filed June 1, 1999

Reversed and remanded

Shumaker, Judge

Dissenting, Crippen, Judge

Hennepin County District Court

File No. 97096973

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Phillip S. Resnick, Scott J. Seiler, Resnick & Seiler, P.L.L.P., 527 Marquette Avenue, Suite 1925, Minneapolis, MN 55402 (for appellant)

Considered and decided by Crippen, Presiding Judge, Amundson; Judge, and Shumaker, Judge.



Appellant challenges the district court's denial of her petition for postconviction relief without first holding an evidentiary hearing. Because the record does not conclusively show appellant's lack of entitlement to relief, we reverse and remand for an evidentiary hearing.


This case arose out of the murder of Ilka Mondane by Douglas Welch on September 29, 1997. As of that date, appellant Tammy Kay Ewing had been in a relationship with Welch for a few months. This relationship followed Ewing's divorce from her violently abusive husband.

Welch soon proved to be violent as well. He was verbally abusive and extremely controlling. He watched Ewing constantly and would not permit her to see her friends or to socialize. He also threatened her with physical harm. About ten days before the murder he held a gun to Ewing's head. A few days later, he fired shots inside her apartment. Ewing feared Welch and she wanted to end the relationship but was afraid he would retaliate.

At about 2:00 a.m. on September 29, 1997, Welch and two women came to Ewing's apartment. Welch yelled and screamed and acted crazy. He pointed a gun at Ewing and asked if she thought he would harm her. He then told her to put the gun in her purse and she did so because she was afraid of him.

Welch next told Ewing to dial a telephone number listed on a piece of paper. When she did, a woman answered. Ewing gave the phone to Welch who screamed obscenities toward the woman on the phone. He gave the phone back to Ewing and told her to tell the woman to give him whatever he wanted. Ewing did so. Welch took the phone back and threw it across the floor, referring to the woman as "bitch." This was Ilka Mondane.

Welch then told Ewing to follow him. He rode in a truck with the two women and Ewing drove her own car. They drove to an alley where Ewing saw Mondane standing. Welch began to argue with Mondane and he called Ewing out of the car. Ewing complied and instinctively brought her purse; the gun was in it. Welch continued to argue with Mondane as he snatched the gun out of Ewing's purse and waved it at Mondane. Ewing told him that whatever he was getting ready to do wasn't worth it, but Welch told her to shut up and to get in the car and leave. As Ewing reached her car she heard a shot. Welch had killed Mondane.

Ewing was indicted for first-degree and intentional second-degree murder. After negotiations, she agreed to plead guilty to unintentional second-degree murder. In open court she identified her plea petition and acknowledged the waiver of her trial rights. As a factual basis for the plea, Ewing admitted the events of September 29, 1997. She also stated that she was afraid of Welch and that she had taken the gun with her for protection against him. The record of the plea proceedings shows that there was no discussion of specific defenses and only slight reference to Ewing's state of mind at the time of the murder. The district court "provisionally" accepted the plea, referred the matter to the probation department for a presentence investigation, and, at the prosecutor's suggestion, ordered a psychological evaluation.

Prior to sentencing, Ewing was evaluated by two psychologists, each of whom wrote a report that the district court read. Psychologist Denise Wilder stated:

Ms. Ewing has experienced little else than control, coercion, degradation, verbal abuse, and physical threat and violence in her relationships * * *. Her experience would tend to make a threat of violence highly credible to her * * *. Ms. Ewing's decisions appear to have been strongly shaped by fear of being shot and killed.

Clinical psychologist Carole Mannheim stated:

She lacks experience in undertaking independent action and decision-making, and appears to become frightened and flustered when demands for same are thrust upon her. She readily relinquishes control to anyone willing to assume responsibility in her place.

At the sentencing, Ewing's attorney argued vigorously that Ewing "participated that night under duress and coercion." He suggested that, but for Welch's threats, Ewing would not have gone to the alley. The attorney suggested that duress and coercion were factors in mitigation of Ewing's culpability and that her sentence should accordingly be mitigated. The prosecutor acknowledged Welch's violence and abusiveness but noted there is no factual basis in the plea transcript that Ewing was operating under duress or coercion.

The district court responded to the attorneys' arguments, saying

I think the charge that she pled to was pretty much designed for the facts that she stated in her change of plea. I don't think it's meant by the law that there was coercion or duress.

The court then noted that Ewing's acts were sufficiently intentional to make her legally liable, but

It's also indisputable that Mr. Welch was manipulative. He manipulated the court, in addition to manipulating Ms. Ewing so the court cannot hardly say that he wasn't manipulative. Ms. Ewing does have some things in her personality - she is a vulnerable person.

The court reflected Welch's manipulation and Ewing's vulnerability in a mitigated sentence.

Ewing later petitioned for postconviction relief, alleging that there was an insufficient factual basis for the plea; her attorney was ineffective; and her plea was not made knowingly and intelligently. She also contended that she was entitled to an evidentiary hearing on the petition.

The district court denied the petition without an evidentiary hearing, ruling that there were no material facts in dispute to be resolved through an evidentiary hearing. The court noted that there was a dispute as to whether the defense attorney informed Ewing's mother, who was helping Ewing with decisions, about the defenses of duress and coercion. The court deemed this dispute not to be material because defense counsel was "under no duty to conduct such a tutorial."


We review the district court's denial of a postconviction evidentiary hearing under an abuse of discretion standard. Hanley v. State, 534 N.W.2d 277, 278 (Minn. 1995).

In denying appellant's request for an evidentiary hearing, the district court relied on Saliterman v. State, 443 N.W.2d 841 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989), and in doing so applied the supreme court's holding in State v. Wolske, 280 Minn. 465, 160 N.W.2d 146 (1968):

[A] plenary evidentiary hearing need not be afforded unless the court deems it necessary to resolve a disputed fact issue arising from conflicting affidavits or based on assertions outside the record.

Saliterman, 443 N.W.2d at 843 (quoting Wolske, 280 Minn. at 474-75, 160 N.W.2d at 153.

The Wolske court did not have the benefit of Minn. Stat. § 590.04 (1998), which we deem controlling. Subdivision 1 of section 590.04 provides:

[U]nless the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief, the court shall promptly set an early hearing on the petition and response thereto, and promptly determine the issues, make findings of fact and conclusions of law with respect thereto, and either deny the petition or enter an order granting appropriate relief.

Id. (Emphasis added.)

Appellant has raised factual issues as to her state of mind at the time of the murder and as to her state of mind and knowledge at the time of her plea. The supreme court has noted that "a defendant must have an understanding of the law as it relates to the facts." Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979) (citing McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166 (1969)). The defense attorney's sentencing argument, the psychological evaluations presented to the court, and the court's own observations about Welch's manipulativeness and appellant's vulnerability strongly intimate that factual issues exist preventing any conclusive showing that appellant is entitled to no relief. Undoubtedly, the issues will be developed and clarified, and factual and legal disputes will be resolved, through an evidentiary hearing. We do not intend by this opinion to suggest what the outcome of the hearing should be. In compliance with Minn. Stat. § 590.04, subd. 1, the postconviction court is required to make findings of fact and conclusions of law and then "either deny the petition or enter an order granting appropriate relief." Id.

Reversed and remanded.

CRIPPEN, Judge (dissenting)

We have concluded to remand the case because the record does not conclusively resolve "factual issues as to [appellant's] state of mind at the time of the murder and as to her state of mind and knowledge at the time of the plea." The postconviction court, whose discretion we count abused, responded to the case with a lengthy memorandum that carefully examines the particular claims for relief advanced by appellant and finds them unsupported either by the record through sentencing or the postconviction presentations. The district court's analysis is convincing.

Appellant's lead argument on appeal questions whether she knowingly entered her guilty plea. Appellant contends that she could not have pleaded knowingly in light of evidence that her role in the killing of Ilka Mondane was under duress. But the significance of appellant's state of mind at the time of the offense, which evidently lies at the heart of our decision to remand, is conclusively flawed because of (a) the absence of evidence of threats to appellant's life or threats at all in reference to her criminal conduct and (b) evidence that appellant took none of several paths of safe withdrawal from the crime.

The duress defense arises in the event of threats whereby an actor is "liable to instant death" if refusing to participate. Minn. Stat. § 609.08 (1998); State v. Rosillo, 282 N.W.2d 872, 874 (Minn. 1979) (requiring that a showing of the risk of instant death include evidence of the "immediacy of the threat to do harm"). Moreover, the defense depends on proof that (a) "fear of instant death must have continued throughout the commission of the crime" and (b) the defendant "could not safely withdraw." State v. Charlton, 338 N.W.2d 26, 31 (Minn. 1983). See also State v. Rasmussen, 241 Minn. 310, 314, 63 N.W.2d 1, 4 (1954) (emphasizing that "ample opportunity to escape" defeats the defense). Appellant's testimony conclusively shows the absence of immediate threats, her freedom to avoid the crime scene, and her control over possession of the weapon used in the murder.

In her reply to the state's memorandum to the trial court, appellant first alluded to the defense of duress,[1] arguing that the record failed to show she was properly advised by counsel on the subject. But appellant points to nothing in the record or a postconviction offer of evidence that suggests the merit in presenting this defense. Moreover, as the trial court observed, appellant's plea petition acknowledged that she had discussed possible defenses with her attorney, and she testified that she had read and understood this document.

Other elements of appellant's request for relief were duly addressed by the postconviction court. Appellant argued to the court that a factual basis had not been shown for her conviction, contending that her testimony did not show an active role toward the criminal end and did not show that the killing was foreseeable. The trial court carefully analyzed and dismissed these arguments, and this court has not challenged that analysis. Similarly, the trial court adequately dealt with appellant's arguments (a) that she was not properly questioned when her plea was submitted, (b) that her attorney failed to adequately inform appellant's mother regarding implications of the plea.

Because the district court exercised sound judgment on appellant's postconviction petition, I respectfully dissent.

[1] In this reply, appellant also alluded to her defense of abandonment, which is conclusively flawed in light of her testimony on the choice to drive to the crime scene, get out of her car, carry the purse or briefcase in which she carried the loaded gun, and then open the briefcase.