STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1314

State of Minnesota,
Respondent,

vs.

Russell Todd Duitsman,
Appellant.

Filed June 14, 2006

Affirmed in part, reversed in part and remanded

Minge, Judge

Dodge County District Court

File No. K6-03-503

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

Paul Kiltinen, Dodge County Attorney, Dodge County Courthouse, 22 Sixth Street East, Mantorville, MN 55955-2220 (for respondent)

John M. Stuart, State Public Defender, Susan Andrews, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Ross, Judge.

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

MINGE, Judge

Appellant claims that the district court abused its discretion by denying his motion to withdraw his guilty plea, erred by failing to advise him of his right to counsel at the probation revocation hearing, and erred by failing to make required findings before revoking his probation. Because appellant’s guilty plea was counseled and voluntary, we affirm the district court’s denial of appellant’s motion to withdraw the plea. But because the district court did not advise appellant of his right to counsel and failed to make necessary findings before revoking probation, we reverse and remand.

FACTS

Appellant Russell Todd Duitsman was charged with felony nonsupport of a spouse or child, a violation of Minn. Stat. § 609.375, subd. 2a (2002). Appellant is currently in arrears for approximately $30,000 in child support and foster-care-recovery fees. At the plea hearing, appellant was represented by counsel, testified that he failed to make the support payments because he cannot work due to medical restrictions and had not been granted disability pay, and pleaded guilty in exchange for probation and a two-year stay of adjudication on the entry of conviction. The district court accepted appellant’s plea and conditioned probation on appellant arranging a payment schedule and making payments in a timely manner.

The district court held two probation-review hearings in the summer of 2004; appellant was not represented by counsel at either. At the second hearing, the state moved to revoke appellant’s probation and requested entry of the judgment of conviction, as appellant had yet to make the payments required by his plea agreement. The district court granted the motion and ordered a presentence investigation report. At the sentencing hearing, appellant stated that because the doctor told him not to work, he still had not made any payments. Appellant also moved to withdraw his guilty plea, arguing that he could not afford to make the payments required by the plea. The district court continued the hearing to allow appellant to submit a memorandum in support of his motion. Appellant’s counsel noted that she would have made the motion at the probation-review hearings, but lacked notice of those hearings.

The district court denied appellant’s motion to withdraw his guilty plea. The district court also ordered a stay of imposition of appellant’s sentence, placed appellant on probation for two years, and imposed conditions of probation, which included obtaining a payment plan and submitting to a chemical-dependency evaluation. This appeal followed.

D E C I S I O N

The first issue is whether the district court abused its discretion by denying appellant’s motion to withdraw his guilty plea. The district court may allow a defendant to withdraw a plea of guilty 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.” Minn. R. Crim. P. 15.05, subd. 2. The district court has broad discretion in determining whether to allow the withdrawal of a plea of guilty. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998). This court will reverse only for an abuse of discretion. State v. Abdisalan, 661 N.W.2d 691, 693 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003). The defendant bears the burden of establishing that it is “fair and just” to allow withdrawal of his guilty plea. State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991). Conversely, “[i]t is the state’s burden to prove . . . undue prejudice.” State v. Byron, 683 N.W.2d 317, 321 (Minn. App. 2004) (citing State v. Wukawitz, 662 N.W.2d 517, 527 (Minn. 2003)), review denied (Minn. Sept. 29, 2004).

In determining whether it is “fair and just” to allow a defendant to withdraw his guilty plea, the district court may consider whether the plea was voluntarily offered and whether the defendant asserted his innocence despite entering the plea. State v. Danh, 500 N.W.2d 506, 509-10 (Minn. App. 1993), remanded on other grounds, 516 N.W.2d 539 (Minn. 1994). The district court may also consider whether the defendant was represented by counsel when he entered the guilty plea and whether he was fully informed of his rights. State v. Knight, 292 Minn. 419, 423, 192 N.W.2d 829, 832 (1971). If “[n]othing objectively in the record suggests that [the defendant] failed to comprehend the nature, purpose, and consequences of his plea,” the district court does not abuse its discretion in denying a motion to withdraw the plea. Abdisalan, 661 N.W.2d at 694.

Here, appellant argues that it would be “fair and just” to allow him to withdraw his guilty plea because, despite acknowledging that he was guilty of felony nonsupport, he had an affirmative defense. The felony-nonsupport statute provides that “[i]t is an affirmative defense to criminal liability . . . if the defendant proves by a preponderance of the evidence that the omission and failure to provide care and support were with lawful excuse.” Minn. Stat. § 609.375, subd. 8 (2002). The record demonstrates that at every hearing on his case, appellant stated that he lacked sufficient resources to make the payments because of medically imposed work restrictions.

While appellant’s financial circumstances are not lost on this court, appellant and his counsel knew of this defense when he entered his guilty plea. It is therefore waived. See State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980) (stating that a counseled guilty plea acts as a waiver of any nonjurisdictional defects); State v. Johnson, 422 N.W.2d 14, 16 (Minn. App. 1988) (same), review denied (Minn. May 16, 1988).

Appellant also argues that withdrawal of the plea is appropriate because the state failed to prove that it would be prejudiced by withdrawal of appellant’s plea. Yet even if the defendant seeks to withdraw his plea before sentencing and the state is not unduly prejudiced, it is not an abuse of discretion to deny the defendant’s motion to withdraw the plea where defendant does not meet the “fair and just” standard. See Abdisalan, 661 N.W.2d at 694-95.

Here, although the state did not show that it was prejudiced by taking any specific action in reliance on appellant’s plea, appellant entered his guilty plea on February 8, 2004, moved to withdraw his plea on September 22, 2004, and was finally sentenced on April 6, 2005. Given the amount of time that passed from the initial plea hearing through sentencing, and the fact that appellant has acknowledged that he is guilty of the acts underlying the felony charge, the district court did not abuse its discretion by determining that appellant did not demonstrate that it would be “fair and just” to allow appellant to withdraw his plea.

II.

The second issue is whether the district court erred in the manner in which it conducted the probation revocation hearing. “The district court has broad discretion in determining if sufficient evidence exists to revoke probation and should be reversed only for a clear abuse of discretion.” State v. Johnson, 679 N.W.2d 169, 177 (Minn. App. 2004); see State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004) (same). But whether the district court made the proper findings before revoking probation is a legal question which this court will review de novo. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

A. Right to Counsel

Appellant first argues that the district court committed reversible error by failing to advise appellant that he had a right to counsel at the revocation hearing. The Minnesota Rules of Criminal Procedure address probation revocation by providing that “the probationer is entitled to counsel at all stages of the proceedings, and if financially unable to afford counsel, one will be appointed for the probationer upon request.” Minn. R. Crim. P. 27.04, subd. 2(1)(a). As the rule states, a defendant is entitled to representation at a probation revocation hearing. State v. Kouba, 709 N.W.2d 299, 304 (Minn. App. 2006); see State v. Balma, 549 N.W.2d 102, 104-05 (Minn. App. 1996) (reaffirming existence of right to counsel in probation revocation proceedings). Failing to provide a probationer with notice of this right is reversible error. Kouba, 709 N.W.2d at 304 (citing State v. Murray, 529 N.W.2d 453, 455 (Minn. App. 1995)).

Here, the record clearly demonstrates that appellant was not represented at the probation revocation hearing, and that the district court did not give appellant notice of his right to counsel. The result of the hearing was a revocation of his probation, revocation of a stay of adjudication, and an entry of judgment of conviction. Appellant was originally sentenced to two years, or 24 months, of probation, of which he served six when the probation was revoked for a nonpayment violation. Eight months later, appellant was sentenced to an additional two years of probation. Although we recognize that this may be viewed as a renewal of the original sentence and harmless error, the actual effect is significant. Instead of probation ending February 2006, it now ends April 2007, a 14-month increase in time. We conclude that the violation of appellant’s right to counsel constitutes reversible error in this case. However, in making this determination, we are not suggesting that renewed probation was an inappropriate disposition.

B. Findings

Appellant also contends that the district court failed to make proper findings before revoking his probation. In State v. Austin, the supreme court considered “what findings a trial court must make before revoking probation.” 295 N.W.2d 246, 250 (Minn. 1980) (emphasis added).

For the future guidance of the lower courts, we adopt a three-step analysis which requires that before probation be revoked, the court must 1) designate the specific condition or conditions that were violated; 2) find that the violation was intentional or inexcusable; and 3) find that need for confinement outweighs the policies favoring probation.

Id. (emphasis added). Recently, the supreme court reaffirmed its central holding from Austin, requiring specific consideration of each factor. See Modtland, 695 N.W.2d at 606. In so doing, the supreme court specifically rejected decisions from this court affirming the district court so long as there was “sufficient evidence” supporting the district court’s probation revocation. Id. (discussing State v. Hlavac, 540 N.W.2d 551, 552-53 (Minn. App. 1995); State v. Theel, 532 N.W.2d 265, 267 (Minn. App. 1995), review denied (Minn. July 20, 1995); State v. Wittenberg, 441 N.W.2d 519, 521 (Minn. App. 1989)).

The findings requirement is an awkward fit in this case. It is clear from the record of the revocation hearing, which is a two-page transcript, that appellant was brought before the court so that the state could make a motion to revoke the stay of adjudication. Appellant volunteered his specific violation of probation–not paying support. Furthermore, no confinement was ordered; appellant was simply given more probation. However, there was no determination if the violation of probation was intentional or inexcusable. Because the court did not make any findings, which it is required to do regardless of whether the probationer admits the violation (see Minn. R. Crim. P. 27.04, subd. 3(4)) and because failure to make findings violates the rule and the Austin holding, we conclude the district court erred.

Affirmed in part, reversed in part and remanded.