STATE OF MINNESOTA
IN COURT OF APPEALS
Charles Nyakundi Chonde, petitioner,
State of Minnesota,
Filed September 14, 1999
Hennepin County District Court
File No. 98000132
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Amundson, Judge.
In this appeal from an order denying his petition for postconviction relief, appellant Charles Chonde argues that he should be allowed to withdraw his guilty plea because it was not knowing, intelligent, and voluntary. We affirm.
At the plea hearing, Chonde testified that he had read the plea agreement multiple times and reviewed its terms with his attorney, his attorney had answered his questions about the agreement, and he understood the plea negotiation. Chonde admitted sexually assaulting a 10-year-old girl. Defense counsel posed questions that described the assault and asked if that was what happened, and Chonde responded by just saying, "Yeah." Chonde also admitted that he had been convicted of a felony sexual offense in Michigan in September 1997.
At the sentencing hearing, Chonde sought to withdraw his guilty plea. Chonde alleged that (1) he was not shown the plea agreement until the last minute and did not have time to read it, (2) his attorney had advised him that he could withdraw the plea at any time before sentencing, and (3) his attorney had violated the attorney-client privilege by communicating with the Kenyan embassy without Chonde's knowledge or consent.
Chonde's attorney stated at the sentencing hearing that (1) he advised Chonde against seeking to withdraw his plea, (2) Chonde was given the police reports to review months before entering his plea, and (3) any communications between defense counsel and the Kenyan embassy were at Chonde's request and did not disclose confidential information.
The prosecutor stated at the sentencing hearing that the day before Chonde entered his plea, defense counsel spent a long time advising Chonde regarding his options. The prosecutor also stated that the victim of the current offense and the victim of the Michigan offense were prepared to testify if the case went to trial.
The district court denied Chonde's request to withdraw his plea and sentenced him to an executed term of 36 months in prison. Chonde then filed a postconviction petition seeking to withdraw his plea. The postconviction court found that (1) defense counsel's use of leading questions in establishing a factual basis for Chonde's plea was not coercive, (2) Chonde understood the nature and seriousness of the offense and the sentence that could be imposed if he was convicted, (3) Chonde wanted his attorney to communicate with the Kenyan embassy and counsel did not disclose confidential information in the communications, and (4) Chonde alleged insufficient facts to prove his claim that defense counsel failed to investigate the case fully. The court concluded that Chonde's plea was knowing, intelligent, and voluntary and that Chonde failed to prove ineffective assistance of counsel. The court denied Chonde's petition for postconviction relief.
To be valid, a guilty "plea must be accurate, voluntary and intelligent (i.e., knowingly and understandingly made)." State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).
Chonde argues in his pro se brief that the factual basis for his plea agreement was inadequate because defense counsel used leading questions to establish the factual basis. The purpose of the factual-basis requirement is to ensure that a plea is accurate. Beaman v. State, 301 Minn. 180, 183, 221 N.W.2d 698, 700 (Minn. 1974).
[I]f the record supports the conclusion that the defendant made a voluntary and intelligent plea, the defendant will not be allowed to withdraw the plea even though the sentencing judge did not ask the questions forming the factual basis, and even though the questions asked were leading questions.
Perkins v. State, 559 N.W.2d 678, 689 (Minn. 1997).
The record does not indicate that anyone coerced or pressured Chonde into pleading guilty. See Sykes v. State, 578 N.W.2d 807, 813 (Minn. App. 1998) (to prove that plea was coerced, defendant must show actual or threatened use of physical harm or mental coercion overcoming his will), review denied (Minn. July 16, 1998).
The victim identified Chonde as the person who sexually assaulted her. She and the victim of the Michigan offense were prepared to testify at trial. Chonde cites no evidence to support his claim that he was misidentified as the perpetrator. Chonde faced a presumptive term of 57 months in prison if convicted of attempted first-degree criminal sexual conduct, 21 months longer than the sentence imposed under the plea agreement. Because the record supports the conclusion that Chonde made a voluntary and intelligent plea, the use of leading questions to establish the factual basis did not undermine the accuracy of the plea.
Chonde also contends in his pro se brief that, due to communication barriers and inadequate advice by counsel, he did not understand the nature of the charges against him and his options. But Chonde did not claim any lack of understanding before entering his plea. On the contrary, Chonde's testimony at the plea hearing supports the district court's finding that, at the time he entered his plea, Chonde understood the nature and seriousness of the charges against him and the sentence that could be imposed if he were convicted. Moreover, as the district court noted, Chonde had the police reports available to review for a lengthy period before entering his plea. Chonde also testified that his attorney had explained the plea negotiation to him, that he understood it and had no questions about it, and that he understood the rights he was giving up. Therefore, the evidence is sufficient to sustain the postconviction court's findings.
Chonde next argues that he received ineffective assistance of counsel because his attorney failed to produce witnesses to testify in his favor. When seeking reversal of a conviction based on ineffective assistance of counsel, a
defendant must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). A defendant who pleaded guilty must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." State v. Wiley, 420 N.W.2d 234, 237 (Minn. App. 1988), review denied (Minn. Apr. 26, 1988). "`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Gates, 398 N.W.2d at 561 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
Chonde alleges that he had three witnesses to support his misidentification claim. However, he presented no evidence indicating the specific facts to which these witnesses would have testified. See Gates, 398 N.W.2d at 563 (defendant has an affirmative burden to show that witnesses' testimony would have made a difference).
Finally, Chonde argues that his attorney violated the attorney-client privilege by communicating with the Kenyan embassy. Defense counsel's testimony supports the district court's findings that the communications were made at Chonde's request and that no confidential information was disclosed in the communications.
Because the evidence supports the district court's findings and the findings support its conclusions that Chonde's plea was accurate, voluntary, and intelligent, and that Chonde failed to prove ineffective assistance of counsel, there is no basis to conclude that the postconviction court abused it discretion by denying Chonde's petition.