A03-1225

State of Minnesota,

Respondent,

vs.

James Robert Ketcher,

Appellant.

Filed May 25, 2004

Affirmed

Hudson, Judge

Brown County District Court

File No. K6-02-867

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

James R. Olson, Brown County Attorney, John L.R. Yost, Assistant County Attorney, P.O. Box 458, New Ulm, Minnesota 56073 (for respondent)

John M. Stuart, State Public Defender, Ngoc Nguyen, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

In this appeal, appellant argues that the district court erred in denying his motion to withdraw his guilty plea. Because the trial court did not abuse its discretion in denying appellant’s motion, we affirm.

FACTS

Appellant James Robert Ketcher admitted that in August 2002 he, Daniel Pena, and others, discussed burglarizing Edwin Saffert’s home. Appellant acknowledged that a witness involved in these discussions would testify that there was a plan to hit Saffert on the head and knock him out if he intervened.

Early in the morning on September 15, 2002, Pena woke appellant. Pena told appellant that it was time to burglarize Saffert’s home. Appellant testified that he was not aware that Saffert was home and believed Saffert was at a nursing home or out of town visiting friends. Appellant testified that when they left, Pena carried a bag, and appellant assumed that the only item in the bag was a flashlight. Appellant reluctantly agreed to go to Saffert’s home, and waited at the corner of Saffert’s property while Pena entered. About ten minutes later, Pena came to the back window and flagged appellant over to the house, and directed appellant into the home to be a lookout. As appellant stood by the back door, he heard a “smack” noise numerous times. Pena returned to where appellant was standing and suggested they look around. Appellant told Pena “no” and “let’s go.” Pena informed appellant that Pena hit Saffert and showed appellant Saffert’s body. Appellant left Saffert’s home, and he later realized that the “smack” noise was Pena hitting Saffert with an ax handle. Appellant testified that it was not part of the plan to hit Saffert.

On March 28, 2003, appellant pleaded guilty to aiding and abetting another in the intentional but unpremeditated murder of Saffert. The state dismissed five other murder counts on the condition that appellant plead guilty. On May 21, 2003, less than two months after pleading guilty, and before he was sentenced, appellant filed a motion to withdraw his guilty plea. Appellant argued that the trial court should allow him to withdraw his plea because: (1) the trial court failed to establish an adequate factual basis for one element of the offense, specifically that Saffert’s presence and ultimate murder was reasonably foreseeable; (2) a manifest injustice existed because there was an insufficient factual basis to support the plea; and (3) it was fair and just to do so. The trial court denied the motion, finding that Saffert’s presence in his home was reasonably foreseeable and that the record contained an adequate factual basis establishing all elements of the crime.

In addition, the trial court noted that appellant had entered his plea late in the afternoon on the Friday before the Monday trial, and, relying on that plea, the state released 19 witnesses from their subpoenas. The trial court also found that the sheriff’s department made substantial security preparations for the trial, including installing metal scanners, placing additional deputies on staff, issuing security passes, and rescheduling shifts. The trial court also found that appellant was represented by competent counsel and made his plea voluntarily and knowingly. The trial court sentenced appellant to 346 months in prison. This appeal follows.

D E C I S I O N

Absent a showing of manifest injustice, a defendant does not have an absolute right to withdraw his guilty plea once the trial court has accepted it. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). The defendant has the burden of establishing facts that justify reopening the case. Id. The ultimate decision to allow a defendant to withdraw a guilty plea is left to the sound discretion of the trial court. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). A trial court’s denial of a motion to withdraw is reviewed under an abuse-of-discretion standard. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). An appellate court’s review is limited to determining whether there is sufficient evidence to sustain the findings of the lower court. Id. If a defendant’s plea is not accurately, voluntarily, or intelligently entered, a manifest injustice exists, and the plea must be withdrawn. Alanis, 583 N.W.2d at 577. A plea is inaccurate if the court fails to establish an adequate factual basis. Ecker, 524 N.W.2d at 716. An adequate factual basis requires “sufficient facts on the record to support a conclusion that defendant’s conduct falls within the charge to which he desires to plead guilty.” State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003) (citation omitted).

Appellant argues that since he did not expect Saffert to be home, the trial court erred in denying his motion to withdraw his guilty plea because the trial court failed to establish an adequate factual basis for the plea. Specifically, appellant contends that there was not an adequate basis for the plea because the state’s questioning of him negated the element of the murder’s foreseeability. Appellant’s argument is based on the following exchange:

Q: . . . You didn’t plan to hit Mr. Saffert; is that correct?

A: That’s correct, nobody was supposed to be there.

Q: Well, you would agree, wouldn’t you, that if you go into somebody’s house at 4 o’clock in the morning to commit a burglary, there’s a good chance somebody will be home, somebody is home, something like this can happen?

A: Yes.

Q: So you would agree, wouldn’t you, that it’s foreseeable that if you commit a first degree burglary, basically going into an occupied home of another person to steal, it’s foreseeable that there could be a death as a result of that?

A: Yes.

Q: With that in mind, how do you plead to the charge of intentional or aiding and abetting intentional murder in the second degree, guilty or not guilty?

A: Guilty.

Contrary to appellant’s claim, in this exchange with the prosecutor, appellant acknowledged that there was sufficient evidence to support a jury verdict of guilty when he agreed that if a person enters a house to commit a burglary at 4:00 a.m., there is a good chance that someone might be home. As respondent aptly notes, this, at the very least, is an acknowledgement of evidence that could convict him and an abandonment of his defense, if not a direct admission to foreseeability.

In addition, appellant knew that he and Pena were going to Saffert’s house to burglarize it. Furthermore, appellant’s belief that Saffert was not home carries little weight because appellant’s belief was based on a rumor he had heard. Moreover, appellant also knew that the state would present evidence that the plan was to hit Saffert over the head if he intervened. Because appellant and Pena had a contingency plan in case Saffert was home, Saffert’s presence in his own home—and Saffert’s murder—were foreseeable. Finally, the Minnesota Supreme Court has held that

[w]henever two people commit a burglary it is reasonably foreseeable that they might encounter some person or that the burglary might be interrupted by the police or someone else. Whether one party to a conspiracy to burgle could have reasonably foreseen that the other might commit an assault in the event of such an encounter or interruption is a question of fact for the jury.

State v. Filippi, 335 N.W.2d 739, 742 (Minn. 1983). Following the rationale in Filippi, the trial court reasoned that it was at least foreseeable Saffert would be in the house, because “[i]t’s foreseeable that people are in houses. That’s what houses are for. People are in there, and they sleep in the night, and the victim in this case was sleeping in his house the night when he was killed.” On this record, we conclude that appellant’s plea was made accurately, voluntarily, and intelligently, and that there was an adequate factual basis on the record to establish the foreseeability element of the crime.

Furthermore, appellant did not establish a fair and just reason to withdraw his guilty plea. Again, the only basis for appellant’s motion to withdraw his plea is his claim that it was unforeseeable that Saffert would be home. In addition to giving consideration to a defendant’s reasons in support of his motion to withdraw, the trial court must also give due consideration to “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. Here, the trial court found that the state would be prejudiced if appellant’s motion to withdraw was granted, because the state was prepared for trial the following Monday and in reliance on appellant’s plea released 19 witnesses from their subpoenas and abandoned their preparations. See Kim, 434 N.W.2d at 266-67 (noting that the trial court did not abuse its discretion in concluding that the defendant did not demonstrate a fair and just reason to withdraw his plea, taking into consideration the fact that the state released 26 witnesses it had summoned by subpoena).

Appellant failed to demonstrate that withdrawal of his plea was necessary to correct a manifest injustice, and, accordingly, the trial court did not abuse its discretion in denying appellant’s motion to withdraw his plea.

Affirmed.