This opinion will be unpublished and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

A05-441

 

 

John Joseph Douglas, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed December 20, 2005

Affirmed

Lansing, Judge

 

 

St. Louis County District Court

File No. K4-96-101887

 

 

John J. Douglas, OID #202354, MCF – Stillwater, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)

 

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

 

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court denied John Douglas’s postconviction petition for withdrawal of his guilty plea, entered nearly eight years earlier, to possession of a photographic representation of sexual conduct involving a minor.  On appeal, Douglas challenges the district court’s determination that his plea-withdrawal petition is untimely and that the record provides an adequate basis for the plea.  We affirm the denial of postconviction relief.

F A C T S

John Douglas entered a negotiated plea in January 1997 to possession of a photographic representation of sexual conduct involving a minor in violation of Minn. Stat. § 617.247, subd. 4 (1996).  In exchange for the guilty plea, the state dismissed the more serious charges of using a minor in a sexual performance and soliciting a child to engage in sexual conduct.

At the plea hearing, Douglas, who was represented by an attorney, pleaded guilty when the court specifically asked him whether he had possessed “photographic representations of sexual conduct with a minor knowing that the person was a minor.”  Douglas also testified under oath that he had discussed the facts of his case with his attorney, that he made no claim of innocence, and that he knew the facts constituted the charge to which he was pleading.  Douglas’s attorney submitted a written plea petition, which Douglas acknowledged that he had discussed with his attorney and which Douglas signed.

Nearly eight years later, in December 2004, Douglas filed a petition for postconviction relief, seeking to withdraw his guilty plea.  As the basis for withdrawal, Douglas asserted “that his guilty plea was not sufficient to support the offense of conviction.”  In the accompanying memorandum, Douglas argued that his plea was not accurate because “his admissions do not support the necessary elements of the offense.” 

The district court denied Douglas’s petition as an untimely request that would unfairly prejudice the prosecution.  The district court also found that the plea was voluntary, intelligent, and accurate, and that withdrawal was not necessary to correct a manifest injustice.  Douglas appeals from the denial of his petition, arguing that his petition was timely because the state failed to establish prejudice and that the record does not adequately support his guilty plea.

D E C I S I O N

A criminal defendant who wishes to challenge a conviction may petition for postconviction relief.  Minn. Stat. § 590.01, subd. 1 (2004).  A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, the facts that warrant reopening his case.  Minn. Stat. § 590.04, subd. 3 (2004); King v. State, 562 N.W.2d 791, 794 (Minn. 1997).  To withdraw a guilty plea, a defendant must file a timely petition and demonstrate that withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). 

The district court concluded that Douglas’s petition filed nearly eight years after he pleaded guilty was untimely and that granting the petition would unduly prejudice the state in prosecuting the charges.  Timeliness is a relevant consideration in deciding whether to grant a petition even though a defendant is not required to bring a plea-withdrawal petition within a specific time.  Minn. R. Crim. P. 15.05, subd. 1; James v. State, 699 N.W.2d 723, 728 (Minn. 2005).  Whether the state will be prejudiced because of actions in reliance on the defendant’s guilty plea is also a consideration in granting or denying a plea petition.  Minn. R. Crim. P. 15.05, subd. 2 (stating rule for plea withdrawal before sentencing).  A conviction based on a guilty plea should not be vacated except for “the strongest of reasons if the effect of such vacation will be to seriously prejudice or bar proceedings by the state due to changes in evidentiary circumstances occurring between the time the plea of guilty was accepted and the time when the case [can] be tried.”  Chapman v. State, 282 Minn. 13, 16-17, 162 N.W.2d 698, 700-01 (1968).

Douglas pleaded guilty to possessing “photographic representation[s] of sexual conduct which involve[] a minor, knowing or with reason to know its content and character.”  Minn. Stat. § 617.247, subd. 4 (1996).  “Sexual conduct” is defined as acts of sexual intercourse, sadomasochistic abuse, masturbation or lewd exhibition of genitals, or physical or simulated contact of genitals or breasts in an act of sexual stimulation.  Id. § 617.246, subd. 1(e) (1996).

In response to Douglas’s plea-withdrawal petition, the county attorney’s office contacted the investigating sheriff’s office to locate the photographs that formed a basis for the charges against Douglas.  The sheriff’s office notified the county attorney that it had destroyed the photographs because of the age of the case.  The state, in opposition to the postconviction petition, asserted that without the pictures they would be unable to proceed to trial. 

Douglas contends that granting his petition would not prejudice the county attorney because the photographs are insufficient to support the charge to which he pleaded guilty and therefore the photographs are irrelevant.  We disagree.  The complaint alleges that one of the photographs is of a minor who “is naked and engaged in sexual activities.”  Consequently, the photograph, if accurately described, is critical to the prosecution of the charge.  The photograph would be particularly important if the minor who was photographed was unavailable or unwilling to testify.  The complaint states that the minor had a relationship with Douglas, that they remained friends after the relationship ended, and that she was reluctant to discuss the photographs with the sheriff’s investigator.  This record supports the state’s claim that prosecution could not go forward without the photographs.  We also note that the record does not suggest that the file containing the photographs was prematurely destroyed.  Douglas received a two-year stayed sentence that expired in March 1999.  In light of the prejudice to the state, plea withdrawal should not be permitted except for “the strongest of reasons.”  Chapman, 282 Minn. at 16, 162 N.W.2d at 700. 

The reason that Douglas provides for plea withdrawal is that the plea was inaccurate because it lacked an adequate factual basis.  The district court rejected this claim and found that Douglas was represented by counsel, understood the charges, submitted a plea petition, and indicated that he understood the petition.  Manifest injustice occurs when a guilty plea is not “accurate, voluntary, and intelligent.”  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  A proper factual basis must be established for a guilty plea to be accurate.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).

At his plea hearing, Douglas acknowledged that his plea was voluntary and that he photographed the minor female.  Douglas further admitted that the facts constituted the crime with which he had been charged.  He acknowledged, in response to the court’s questions, that he had in his possession photographic representations of sexual conduct with a minor.  Douglas acknowledged the charges against him in a detailed plea petition and also acknowledged that the prosecutor had physical evidence supporting the charges.  Douglas has not demonstrated a strong reason to permit his plea withdrawal.  The record supports the district court’s determination that the plea was accurate and that denial of the petition for plea withdrawal is not manifestly unjust.

Affirmed.