This opinion will be unpublished and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

A04-1781

 

State of Minnesota,
Respondent,

vs.

Michael Shawn Bengtson,
Appellant.

 

Filed August 2, 2005

Affirmed

Stoneburner, Judge

 

Kandiyohi County District Court

File No. KX021467

 

Mike Hatch, Attorney General, John B. Galus, Kimberly Parker, Assistant Attorneys General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Boyd Beccue, Kandiyohi County Attorney, 415 Southwest Sixth Street, Willmar, MN 56201 (for respondent)

 

Philip G. Villaume, Jeffrey D. Schiek, Villaume & Schiek, P.A., Suite 150, 5200 Willson Road, Edina, MN 55424 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

On appeal from conviction of possession of child pornography, appellant Michael Shawn Bengtson argues that the district court abused its discretion in denying appellant’s pre-sentencing motion to withdraw his guilty plea.  Appellant argues that he should have been allowed to withdraw his plea because his attorney was ineffective, the prosecutor failed to disclose exculpatory evidence, and the plea was not knowingly and voluntarily entered.  Appellant also argues that, despite his plea of guilty, he can appeal the admission of his statement to police and evidence seized by a private party, and challenge the constitutionality of the child pornography statute.  Because the district court did not abuse its discretion in denying appellant’s motion to withdraw his guilty plea, and appellant’s guilty plea waived his right to appeal pretrial issues, we affirm.

FACTS

 

Kim Rothwell, appellant’s former girlfriend, went to the Kandiyohi County Sheriff’s Department and alleged that appellant, Michael Bengtson, possessed child pornography on a CD-ROM.  Later that day, Rothwell delivered the CD-ROM to the Law Enforcement Center.  Detective Paul Follmann reviewed the CD-ROM and found approximately 200 images or movie files containing what he believed to be pornographic images of children under the age of 18, including children as young as approximately 18 months old.  Follmann forwarded the CD-ROM to Sergeant Brook Schaub of the Minnesota Internet Crimes Against Children Task Force.  Schaub reviewed the CD-ROM and concurred that it contained numerous images of child pornography involving some children and adults who have been previously identified by law enforcement.

Follmann interviewed appellant, who admitted to possession of child pornography.  Appellant was charged with nine counts of possession of child pornography in violation of Minn. Stat. § 617.247, subd. 4(a) (Supp. 2001).  Each count referred to a specific image on the CD-ROM.  Later, the complaint was amended to add a tenth charge that included possession of all of the images on the CD-ROM. 

Appellant’s attorney, arguing that the CD-ROM was the fruit of an illegal search and that the child pornography statute is unconstitutionally overbroad, moved to dismiss the case.  At the omnibus hearing on the motions, Sergeant Anthony Cruze of the Kandiyohi County Sheriff’s Department testified that Rothwell told Cruze she had taken the CD-ROM from appellant long before she came to the sheriff’s department and still had it in her possession.[1]  Records clerk Marlene Schmisek testified that Rothwell brought the CD-ROM to the law enforcement center on the same day Rothwell spoke to Cruze.[2]  The district court denied the motions, concluding that appellant failed to prove that the statute under which he was charged is unconstitutional, and that the CD-ROM was not illegally obtained by law enforcement officers because it was obtained by a private party without any involvement of law enforcement.

Following a continuance for appellant to obtain new counsel, appellant’s new counsel requested that the omnibus hearing be reopened for the court to consider a motion to suppress appellant’s statements to Follmann.  The district court considered and denied the motion, concluding that appellant’s statement was not obtained in violation of his right to counsel.

Appellant then entered into a plea agreement with the state to plead guilty to count ten of the amended complaint, possession of a CD-ROM containing child pornography, in return for dismissal of counts one through nine.  The district court questioned appellant on the record about his desire to waive his right to a trial and to plead guilty, and explained that his sentence would be established following a pre-sentence investigation, a psychosexual evaluation, and a chemical use assessment.  The district court stated: “I will not accept a plea of guilty from you if you do not admit facts that comprise the elements of the offense,” and also told appellant that once the court accepted his plea of guilty he would not be permitted to withdraw that plea. 

Appellant was questioned under oath by defense counsel, the prosecutor, and the district court about the rights he was waiving if he entered a plea under the agreement and about the factual basis for the plea.  The district court accepted the plea. 

Because conflicting information was presented to the district court at the sentencing hearing, the district court continued the sentencing hearing and requested an updated chemical-use assessment, clarification as to whether or not appellant was charged with a DWI (he stated he was in jail for failing to pay child support at the time), and a more thorough psychosexual evaluation.  Another continuance was required for the district court to get a more complete record, and because the probation officer stated that appellant intentionally tried to “fool” the polygraph test by moving and coughing after being instructed not to do so. 

Appellant then obtained his third, new legal counsel and moved to withdraw his guilty plea, arguing there was a “clear and grave misapprehension concerning the admissibility of evidence,” and appellant “did not understand the nature and elements of offenses charged and the consequence of this plea.”  The state opposed the motion, arguing that appellant had had more than enough time to consider whether or not to plead guilty, he had sufficient counsel, and he validly waived his rights. 

The district court denied the motion, stating that appellant failed to show a fair and just rationale for the withdrawal of the plea.  The district court sentenced appellant to a stayed sentence of one year and one day, a fine of $2,075.00, and five years of probation.  This appeal followed.

D E C I S I O N

 

I.

 

Appellant argues that he should be allowed to withdraw his guilty plea based on ineffective assistance of his first two counsel, an invalid plea, and prosecutorial misconduct.  Generally, the question of whether to permit withdrawal of a guilty plea is “left to the sound discretion of the trial court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion.”  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  A plea may be withdrawn 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.[3]  “Underlying the rule is the notion that giving a defendant an absolute right to withdraw a plea before sentence would undermine the integrity of the plea-taking process.”  Kim,434 N.W.2d at 266.  The defendant bears the burden of showing that plea withdrawal is fair and just.  Id.

“The Supreme Court has stated that ‘the right to counsel is the right to the effective assistance of counsel.’”  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 n. 14 (1970)) (emphasis added).  Minnesota courts follow the test set forth under Strickland v. Washington for ineffective assistance of counsel claims: a defendant must show by a preponderance of the evidence that (1) his counsel’s representation fell below an “objective standard of reasonableness” and (2) there is a reasonable probability that, but for counsel’s performance, the result of the proceeding would have been different.  466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984); Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001).  Generally, the test for the objective standard of reasonableness is met when the attorney “exercis[es] the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.”  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (quotation omitted).  Courts presume that counsel’s performance falls “within the wide range of reasonable professional assistance.”  State v. Vick, 632 N.W.2d 676, 688 (Minn. 2001) (quotations omitted).

Appellant specifically states that his attorney “at the waiver of appellant’s rights hearing was not within the range of competence demanded by an attorney in a criminal case because the attorney did not knowingly and voluntarily waive appellant’s rights and the attorney should have preserved pretrial motions pursuant to Lothenbach.”[4]  “A valid guilty plea must be accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).”  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003) (quotation omitted).  But appellant’s argument that his “attorney did not knowingly and voluntarily waive appellant’s rights” is without merit because only appellant may waive his rights, and this must be done personally in writing or orally on the record.  See State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002), review denied (Minn. June 18, 2002).  The record in this case reflects a knowing and voluntary waiver by appellant after extremely thorough questioning by his attorney, the prosecutor, and the district court. 

Defense counsel established by questioning appellant under oath that appellant understood that by signing the petition to enter a guilty plea, he would give up constitutional and fundamental rights, and counsel examined appellant regarding each right.  Counsel questioned appellant about the pretrial motions and rulings on those motions and appellant acknowledged that counsel had shared with him counsel’s conversation with the judge about sentencing possibilities.  Appellant acknowledged that he and defense counsel reviewed the evidence of the disk.  Counsel asked appellant if he made his plea voluntarily—understanding that counsel had given him his thoughts on the matter, but that it was appellant’s ultimate decision, and no one had threatened him to get him to change his plea.  Appellant answered affirmatively to these inquiries. 

The district court then examined appellant, establishing that appellant understood his written plea petition and understood that he waived his right to appeal the issues decided in the omnibus hearings.  The judge reiterated the fundamental rights appellant would waive by pleading guilty, and that there was no stipulation about sentencing.  The district court asked if appellant was prepared to waive his right to silence and to tell the court about the offense.  Appellant answered affirmatively and admitted to the charge in count ten, acknowledging that he had possessed the CD-ROM for two to three years, and that it was in his safe in August 2001.  The district court found that appellant had properly waived his rights and admitted to the facts establishing the charge, and accepted the plea of guilty.  See State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (explaining that it is the district court judge’s responsibility to see that an adequate factual basis is established for a guilty plea).  The record establishes that appellant understood the nature of the charge, the plea agreement, the rights waived by a guilty plea including the right to appeal pretrial rulings, and the potential sentence.

Appellant argues that his counsel should have protected appellant’s right to appeal the pretrial rulings by having appellant participate in a Lothenbach trial, rather than enter a plea of guilty.  There is no authority for the proposition that assistance of counsel is ineffective merely because counsel may have advised a defendant against pursuing an appeal of pretrial rulings.  At the plea hearing, appellant was thoroughly informed, and it is clear from the record that appellant understood, that the guilty plea would result in giving up the right to appeal the pretrial matters, and that trial would be the only way to preserve that right.  Appellant did not express any interest or intent to appeal the pretrial rulings.

Appellant also now argues that his prior counsel were ineffective because they failed to have an expert review the CD-ROM to determine that the pictures were of actual children.  But appellant admitted to the facts in count ten and conceded in the plea to the allegations in the complaint, which included the fact that the images were of children under the age of 18.  The extent of an investigation is part of counsel’s trial strategy, and this court gives great deference to that strategy.  Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).  In this case, appellant and counsel knew that some of the children had already been identified by law enforcement in other jurisdictions, and because the state had the burden to prove that the pictures were of actual children, defense counsel’s choice not to hire an expert to review the CD-ROM constituted logical trial strategy.

Appellant also argues that prior defense counsel should have moved to compel production of Rothwell’s psychological records, should have challenged his statement to the police under Scales,[5] and should have moved to withdraw the plea months earlier, when appellant claims he first informed counsel of his desire to withdraw the plea.  But a “claim of ineffective assistance of counsel may not rest on the failure of an attorney to make a motion that would have been denied if it had been made.”  Johnson v. State, 673 N.W.2d 144, 148 (Minn. 2004).  Appellant does not explain why the district court would have granted a motion for production of Rothwell’s psychological records or how production of those records would have resulted in appellant pleading not guilty.[6]  Nothing in the record suggests that filing the motion to withdraw the plea at an earlier date would have changed the outcome because the district court had specifically warned appellant at the plea hearing that once entered, the district court would not permit the plea to be withdrawn.  And the district court found no merit in appellant’s claim that there had been a gap in the recording of his statement, so a motion under Scales would have been futile.

Appellant also argues that the state failed to reveal exculpatory evidence to appellant in the form of a written statement from Rothwell’s friend, Sheila Landian, thereby preventing appellant from knowingly and intelligently waiving his rights, and that defense counsel failed to object to the lack of disclosure.  To succeed on a prosecutorial-misconduct claim, appellant must show that the “misconduct occurred and that it was prejudicial.”  Voorhees, 596 N.W.2d at 253.  This court will only reverse on the basis of prosecutorial misconduct if it is “so serious and prejudicial that a defendant’s right to a fair trial is denied.”  Id.(quotation omitted).  The state has a continuing duty to disclose information subject to disclosure.  Minn. R. Crim. P. 9.03, subd. 2.            

Landian was a witness disclosed by defense counsel.  The prosecutor explained to the court that he had talked to defense counsel about her expected testimony and defense counsel sent the prosecutor a letter about her anticipated testimony.  The prosecutor asked law enforcement to verify the anticipated testimony with Landian, and when that was done, the prosecutor told appellant’s attorney that Landian would testify consistent with the letter, and he did not believe there was any new information to disclose.  On this record, there is no misconduct that requires withdrawal of appellant’s plea, and there is no merit in appellant’s argument that defense counsel’s assistance was ineffective for failing to object on this basis to lack of disclosure.

            “A plea of guilty cannot be used as a tactical device to frustrate the prosecution.”  Chapman v. State, 282 Minn. 13, 17, 162 N.W.2d 698, 701 (1968).  The district court in this case noted that appellant had a pattern of firing attorneys to delay proceedings, was uncooperative in the pre-sentence investigation, and had repeatedly delayed the proceedings.  The district court further found that the state was prejudiced by the age of the case, there was emotional strain on the state’s witnesses from preparing for trial twice, and the state’s attorney had already left his job with the state but still was appointed to handle the case.  Appellant does not challenge the district court’s findings.  The district court acted well within its discretion by denying appellant’s motion to withdraw his plea of guilty.

II.

Appellant argues that even if the district court did not abuse its discretion by denying his motion to withdraw his plea of guilty, this court should consider his challenges to the pretrial rulings in the interests of justice.  “A guilty plea by a counseled defendant has traditionally operated, in Minnesota and in other jurisdictions, as a waiver of all non-jurisdictional defects arising prior to the entry of the plea.”  State v. Ford, 397 N.W.2d 875, 878 (Minn. 1986).  A Lothenbach procedure is the proper way to preserve pretrial issues.  State v. Busse, 644 N.W.2d 79, 88 (Minn. 2003).  Lothenbach sets forth “a procedure that preserves a defendant’s right of appeal and avoids an otherwise unnecessary jury trial.”  State v. Verschelde, 595 N.W.2d 192, 195 (Minn. 1999).  

In Lothenbach and Ford,the supreme court considered challenges to pretrial rulings despite the entry of guilty pleas because the record in each case clearly established that Lothenbach and Ford were attempting to preserve the pretrial issues for appeal.  State v. Lothenbach,296 N.W.2d at 857 (noting that defendant’s attorney had stated that record should reflect reason for plea was to conclude case at district court level and appeal denial of motion to suppress); State v. Ford,397 N.W.2d at 878 (stating that because the circumstances were similar to those in Lothenbach, the court would treat the case as it did in Lothenbach as an appeal from a finding of guilty based on stipulated facts).  By contrast, appellant in this case explicitly waived the right to appeal the district court’s pretrial rulings.  At the hearing, appellant answered affirmatively to counsel’s question regarding the omnibus hearing rulings: “By entering your plea you are basically saying I am not going to go to trial, I am not going to use that—those rulings as a basis of appeal to a higher court.  Do you understand that?”  Counsel further questioned appellant regarding the omnibus issues: “You did have formal hearings on that.  And you know that you are giving those up because you are going to plead guilty.  Do you understand that?”  Appellant answered, “yes.”  The district court told appellant that “to preserve your right of appeal, you need to go through trial.”  Additionally, the district court asked, “[d]o you also understand that this matter is before me now[?]  I have not accepted your plea nor have I rejected it.  But if the plea is accepted by the Court and you are convicted, if you change your mind later, then it’s too late.”  Appellant acknowledged that he understood.

Appellant argues that this court should consider these issues because they are actually jurisdictional issues, which can survive a waiver and a plea of guilty for appeal, citing Ford, 397 N.W.2d at 878 for the proposition that a plea only waives non-jurisdictional issues.  But appellant cites no authority supporting his contention that the issues he wishes to appeal are jurisdictional issues.[7] This court could address these issues in the interests of justice.  Minn. R. Civ. App. P. 103.04.  But given appellant’s explicit waiver of his right to appeal these issues, and the careful and deliberate rulings by the district court on these pretrial issues, we conclude that the interests of justice do not require us to address these issues.

Affirmed.