This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-621

 

State of Minnesota,
Respondent,

vs.

Dennis J. Moore,
Appellant.

 

Filed May 17, 2005

Affirmed in part, reversed in part, and remanded

Wright, Judge

 

Hennepin County District Court

File No. 03033602

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Wright, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges his conviction of first-degree assault and sentence of 135 months’ imprisonment, arguing that (1) the district court abused its discretion in denying his motion to withdraw his guilty plea; and (2) the district court’s upward durational departure from the Minnesota Sentencing Guidelines violates his Sixth Amendment right to a jury trial.  We affirm in part, reverse in part, and remand for resentencing. 

FACTS

 

Appellant Dennis Moore was charged with several offenses arising out of a physical altercation with N.F. on May 5, 2003.  According to N.F., she returned to her apartment to find Moore, her then boyfriend of nine months, waiting for her.  The parties discussed ending their relationship.  Moore hit N.F. twice, each time knocking her to the floor. 

Moore then dragged N.F. down to the basement where he tied her wrists with a clothesline.  When N.F. began to scream, Moore threatened to put a sock in her mouth.  Moore then tied a clothesline around N.F.’s neck, forced N.F. to stand on a chair, and attached the line to a beam in the ceiling.  N.F. lost consciousness.  When she regained consciousness, N.F. was on the basement floor with her wrists and neck still bound.  Moore then undressed N.F., inserted a garden hose into her vagina, and turned the hose on.  After removing the hose, Moore orally penetrated N.F.  Moore then untied N.F., brought her upstairs, and demanded to engage in sexual intercourse with her.  Out of fear, N.F. did not resist. 

Moore offers a markedly different version of the facts.  Moore admits tying N.F.’s wrists and neck but contends that N.F. inflicted her own injuries by pressing the clothesline to her neck.  Moore also maintains that N.F. forced him to perform oral sex on her and demanded that he give her a bath.  Moore contends that N.F.’s explanation for her injuries is false. 

The day after the incident, N.F. sought medical attention.  Her physician determined that she had large areas of subconjunctival hemorrhages in both eyes and evidence of strangulation, which included a linear rope burn on her neck.  N.F. also had visible bruises on her neck and wrists. 

 Moore was charged with two counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(c), (e)(i) (2002), and one count of kidnapping, in violation of Minn. Stat. § 609.25, subd. 1(2), (3) (2002).  The state later amended the complaint, adding three charges: attempted first-degree murder, in violation of Minn. Stat. §§ 609.17, subd. 1, .185(a)(1) (2002); attempted second-degree murder, in violation of Minn. Stat. §§ 609.17, subd. 1, .19, subd. 1(1) (2002); and first-degree assault, in violation of Minn. Stat. § 609.221, subd. 1 (2002).      

            The state offered a plea agreement to Moore, which he initially rejected.  Following several adverse pretrial evidentiary rulings, however, Moore decided to accept the state’s offer and plead guilty to first-degree assault.  In exchange for Moore’s guilty plea, the state agreed to dismiss the remaining charges and recommend a sentence between 81 and 144 months.  With a criminal history score of two, the guideline sentence for first-degree assault is 110 months.  Minn. Sent. Guidelines IV.

            During the guilty-plea hearing, the district court noted Moore’s apparent reluctance to enter a guilty plea.  Moore explained that he felt pressured to give up his right to a jury trial because “[the court was] letting in things that did not happen” and “having charges against [him] that did not happen.”  Moore then conferred privately with his counsel.  Before resuming questioning, the district court advised Moore: 

[Y]ou have to understand the full consequences of the plea—and it has to be absolutely voluntary.  It means of your own free will.  And if either of those conditions are not met, I’m not going to accept the plea because it would be improper for me to accept the plea and we’re going to have a trial. . . . These are your rights and there’s only one person who can give them up.  And so, if you want to accept the plea bargain, that’s fine, and if not, that’s fine.  I could care less.  So it’s clearly your decision.  So please—please talk to me about what you want to do.

 

Moore responded, “I want to accept this because I want to be free again. . . . I am willing to plead guilty because I have a life and I have children and I need to see them again.”  The district court inquired, “When you said ‘guilty,’ do you understand the legal consequences of saying that word?”  Moore replied “Yes,” but reasserted his innocence.  The district court then addressed Moore’s counsel off the record.  When Moore’s counsel resumed questioning, Moore indicated that, because he was afraid that he would not receive a fair trial, he would like to accept the state’s offer. 

            In support of his guilty plea, Moore testified that, on May 5, 2003, he intentionally placed a clothesline around N.F.’s neck and “at some point during the evening” the clothesline tightened.  The tightening of the clothesline caused blood vessels in N.F.’s eyes to burst, her eyes to hemorrhage, and scarring on her neck.  The strangulation also caused numbness in her left arm that persisted until early November 2003.  Before accepting the guilty plea, the district court asked twice more whether Moore wanted to enter a guilty plea.  Moore answered affirmatively, and his guilty plea was accepted. 

            Eight days later, Moore moved to withdraw his guilty plea.  Moore did not challenge the factual basis for the guilty plea.  Rather, he argued that, because he expressed doubts about entering his guilty plea and timely moved to withdraw it before sentencing, it was “fair and just” to grant the motion.  The state objected to the plea withdrawal. 

            After referencing the lengthy guilty-plea colloquy and Moore’s repeated assurances that he wanted to plead guilty, the district court denied Moore’s motion.  The district court sentenced Moore to 135 months’ imprisonment, an upward durational departure from the sentencing guidelines.  The district court based the upward departure on the following aggravating factors: (1) the assault occurred in N.F.’s apartment; (2) the presence of two children under the age of five in the apartment during the assault; and (3) the particular cruelty evinced by the manner of the assault.  This appeal followed.      

D E C I S I O N

 

I.

 

Moore challenges the district court’s denial of his presentence motion to withdraw his guilty plea, arguing that (1) allowing his guilty plea to stand would be a manifest injustice because it was neither accurate nor intelligent, Minn. R. Crim. P. 15.05, subd. 1; and (2) withdrawal of the guilty plea would be “fair and just” because he repeatedly proclaimed his innocence and only pleaded guilty to receive a shorter sentence, id., subd. 2.  We review the district court’s decision to deny plea withdrawal for an abuse of discretion.  State v. Abdisalan, 661 N.W.2d 691, 693 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003).  Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). 

A.

            On appeal, Moore argues for the first time that allowing his guilty plea to stand constitutes a manifest injustice because the factual basis fails to establish that N.F. suffered great bodily harm.  To comply with the constitutional requirements of due process, a guilty plea must be accurate, voluntary, and intelligent.  State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004).  Moore’s contention that the guilty plea is not supported by sufficient facts to establish the elements of the offense is a challenge to the accuracy of the guilty plea.  State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003).  Accuracy is required to prevent a defendant from pleading guilty to a more serious offense than the defendant could be convicted of at trial.  State v. Trott, 338 N.W.2d 248, 251-52 (Minn. 1983). 

First-degree assault requires proof of great bodily harm, defined as “bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily harm.”  Minn. Stat. § 609.02, subd. 8 (2002).  “Bodily harm” includes “physical pain or injury . . . or any impairment of physical condition.”  Id., subd. 7 (2002).    Thus, we examine the injury to the victim, not the actions of the assailant, even if an individual who committed a grievous assault escapes conviction because the victim is fortunate enough to escape serious injury.  State v. Gerald, 486 N.W.2d 799, 802-03 (Minn. App. 1992).

Moore admitted at the guilty-plea hearing that N.F. suffered subconjunctival hemorrhages in her eyes, scarring on her neck, and numbness in her arm that lasted approximately six months.  Although N.F.’s neck scars are not as extensive as those in some first-degree assault cases, N.F’s scars are sufficiently visible and pronounced to constitute “serious permanent disfigurement” under the definition of great bodily harm.  State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995).  Moreover, N.F.’s prolonged numbness amounts to a serious impairment of a physical condition, and N.F.’s eye hemorrhages are a strikingly serious physical injury.  Taken together, N.F.’s injuries—the numbness, scarring, and eye hemorrhages—constitute, at a minimum, “other serious bodily harm.”  See State v. Jones, 266 N.W.2d 706, 710 (Minn. 1978) (holding that unconsciousness, prolonged numbness in bodily member, and repeated dizziness and headaches amount to “other serious bodily harm”).  Because the record establishes the essential element of great bodily harm in a first-degree assault offense, Moore’s challenge to the accuracy of his guilty plea fails. 

Moore also argues that withdrawal of his guilty plea is required to avoid a manifest injustice because the guilty plea was not intelligently made.  To satisfy the constitutional requirement of entering a guilty plea intelligently, a defendant must understand the nature of the charges, the rights being waived, and the direct consequences of a guilty plea.  Alanis, 583 N.W.2d at 577; State v. Aviles-Alvarez, 561 N.W.2d 523, 526 (Minn. App. 1997), review denied (Minn. June 11, 1997).  Moore contends that his guilty plea was not intelligently made because he was neither advised of, nor did he waive, the right to have a jury decide the facts supporting the upward durational departure from the sentencing guidelines.  Moore’s argument is misplaced. 

When Moore entered his guilty plea on November 24, 2003, a defendant’s right to have a jury determine whether there were aggravating factors warranting an upward departure had not been recognized under the United States or Minnesota constitutions.  Blakely v. Washington, 124 S. Ct. 2531 (2004), the case enunciating this right under the Sixth Amendment of the United States Constitution, was not decided until June 24, 2004.  Thus, at the time Moore entered his guilty plea, he was fully advised of his rights under the then current law.  Although Moore may be entitled to other relief as a result of the Supreme Court’s subsequent ruling in Blakely, the failure to predict and advise Moore of a new constitutional rule of procedure does not compel withdrawal of the guilty plea as not intelligently made.     

B.

Moore next argues that the district court abused its discretion in declining to permit him to withdraw his guilty plea under the “fair and just” standard.  Moore maintains that plea withdrawal is warranted because he proclaimed his innocence while entering the plea, pleaded guilty only to shorten his sentence, and gave prompt notice of his request to withdraw his plea. 

A defendant does not have an absolute right to withdraw a guilty plea before sentencing.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  The defendant must demonstrate that there is a “fair and just” reason to withdraw the guilty plea.  State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991).  In determining whether this burden has been met, the district court considers the reasons advanced by the defendant and any prejudice that granting the motion would cause the state.  Kim, 434 N.W.2d at 266.    

            Here, the district court concluded that Moore failed to present any compelling reasons to withdraw his guilty plea.  We agree.  Moore contends that, because he proclaimed his innocence while entering his guilty plea and immediately thereafter, it would be “fair and just” to allow him to withdraw his plea.  But a defendant’s assertion of innocence during or after entering a guilty plea is not a significant reason to reverse the district court’s decision under the fair-and-just standard.  State v. Williams, 373 N.W.2d 851, 853 (Minn. App. 1985); see also State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977) (holding that guilty plea may be accepted although defendant maintains innocence).  Furthermore, although Moore maintained his innocence, he also admitted at the hearing that he put a rope around N.F.’s neck and caused her to suffer serious injuries. 

Moore also contends that he pleaded guilty only because he feared that he would not receive a fair trial and would spend most of his life in jail.  This claim also fails to establish a fair and just reason to compel withdrawal of a guilty plea.  Barnes v. State, 489 N.W.2d 273, 276 (Minn. App. 1992), review denied (Minn. Nov. 3, 1992).  Moore decided to plead guilty immediately after the district court made several adverse evidentiary rulings.  In assessing the strength of the state’s case and then choosing not to proceed to trial, Moore made a rational decision to enter a guilty plea.  Moore’s subsequent change of mind does not provide a basis for plea withdrawal when the record plainly demonstrates that Moore’s counsel and the district court went to great lengths to ensure that Moore’s guilty plea was knowing and voluntary.  See id. 

Moore argues that the promptness of his motion—filed merely eight days after entering his guilty plea—establishes that it is fair and just to allow withdrawal of his plea.  We disagree.  Although a prompt motion may demonstrate an absence of prejudicial reliance by the state, it does not compel a ruling in favor of withdrawal.  Abdisalan, 661 N.W.2d at 694; see also Minn. R. Crim. P. 15.05, subd. 2 (absence of prejudice to prosecution is only one factor to consider in motion to withdraw guilty plea).  We also note that it was not an abuse of discretion for the district court to consider the emotional impact that Moore’s plea withdrawal would have on N.F.  Kim, 434 N.W.2d at 267 (holding that district court is justified in considering victim’s interests). 

In sum, the district court did not abuse its discretion in denying Moore’s motion to withdraw his guilty plea. 

II.

Citing Blakely v. Washington, 124 S. Ct. 2531 (2004), Moore next argues that his sentence, which is an upward durational departure from the sentencing guidelines based on a judicial determination of aggravating factors, was imposed in violation of his Sixth Amendment right to a jury trial.  This constitutional challenge presents a question of law, which we review de novo.  State v. Wright, 588 N.W.2d 166, 168 (Minn. App. 1998), review denied (Minn. Feb. 24, 1999).

Moore filed a notice of appeal on April 7, 2004.  The Blakely decision was issued on June 24, 2004.  If a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule.  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).  A case is “pending” if the defendant’s judgment of conviction has been rendered but all rights to appeal and certiorari have not been exhausted.  Id. 

In Blakely, the United States Supreme Court held that the greatest sentence a judge can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Blakely, 124 S. Ct. at 2537.  The defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction, that increases the sentence above this maximum.  Id. at  2543.  Blakely announced a new rule of constitutional criminal procedure.  State v. Petschl, 692 N.W.2d 463, 471 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  Because Moore’s case was pending on direct review when the Blakely decision was released and the decision announced a new constitutional rule, Moore is entitled to reconsideration of his sentence in light of Blakely. 

Applying the Blakely decision to the Minnesota Sentencing Guidelines, the Minnesota Supreme Court determined that an upward durational departure from the Minnesota Sentencing Guidelines based on aggravating factors not found by the jury violates the Sixth Amendment right to a jury trial.  State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004).  An upward durational departure from the Minnesota Sentencing Guidelines may not be based on an admission by the defendant unless the admission to an aggravating factor is accompanied by the defendant’s waiver of the right to a jury trial on the aggravating factor.  State v. Hagen, 690 N.W.2d 155, 159 (Minn. App. 2004).  Thus, a defendant’s admission of facts during the entry of a guilty plea that may support an upward departure is not sufficient under Blakely unless the defendant explicitly waives the right to a jury trial on the aggravating factors.  Id. 

Because Moore pleaded guilty to first-degree assault, the aggravating factors supporting the upward durational departure from the sentencing guidelines were not determined by a jury.  The record establishes that, although in the course of entering his guilty plea Moore was informed in general terms of his right to a jury trial, he was not advised of, nor did he explicitly waive, his right to a jury trial on the aggravating factors.  See State v. Ross, 472 N.W.2d 651, 653 (Minn. 1991) (defendant’s waiver of his jury-trial rights must be knowing, intelligent, and voluntary).  Thus, the upward durational departure, based on aggravating factors that were not found by a jury or admitted by Moore after a knowing waiver of his jury trial right as to the aggravating factors, violated the Sixth Amendment.  We, therefore, reverse the sentence imposed and remand for resentencing in a manner not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded.