A05-2330

Wendell Dwayne O’Neal, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed October 17, 2006

Affirmed; motion denied

Worke, Judge

Ramsey County District Court

File No. T5-05-19470

Wendell Dwayne O’Neal, 223 North Eighth Street, LaCrosse, WI 54601 (appellant pro se)

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

John J. Choi, St. Paul City Attorney, Jessica S. McConaughey, Assistant City Attorney, 500 City Hall & Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Considered and decided by Worke, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

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

WORKE, Judge

On appeal from the district court’s denial of a postconviction petition challenging a conviction for petty-misdemeanor trespass, appellant argues that his administrative guilty plea was invalid because he did not appear before the district court and because he was threatened with a disorderly-conduct charge if he did not plead guilty. We affirm.

D E C I S I O N

Appellant Wendell Dwayne O’Neal argues that the district court erred in denying his petition for postconviction relief. A person convicted of a crime may seek postconviction relief in order “to vacate and set aside the judgment . . . or grant a new trial . . . or make other disposition as may be appropriate.” Minn. Stat. § 590.01, subd. 1 (Supp. 2005). On factual matters, “[r]eview of a postconviction proceeding is limited to determining ‘whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.’” Zenanko v. State, 688 N.W.2d 861, 864 (Minn. 2004) (citation omitted). This court reviews legal issues raised in a postconviction petition de novo. Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).

Appellant argues that he should have been permitted to withdraw his guilty plea because it was invalid. Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). But a district court retains authority to allow plea withdrawal on proof “that withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. The decision whether to permit withdrawal of a guilty plea is generally left to the sound discretion of the district court. See Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).

Appellant contends that his guilty plea is invalid because he was not present when his attorney entered it and because it was coerced through the threat of imposition of a disorderly-conduct charge. Appellant does not dispute that he authorized his attorney to act on his behalf. A valid guilty plea must be accurate, voluntary, and intelligent. Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). An accurate plea primarily demonstrates that the defendant is guilty of a crime at least as serious as that to which he is pleading. Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989). A plea is voluntary if it is not made in response to improper pressures or inducements. Alanis v. State,583 N.W.2d 573, 577 (Minn. 1998). The intelligently made requirement is designed to insure that the defendant understands the charges, the rights he is waiving, and the consequences of the guilty plea. Brown, 449 N.W.2d at 182.

Appellant’s plea was accurate. Appellant was charged with trespassing, in violation of Minn. Stat. § 609.605 (2004), after a police officer responded to a complaint that appellant refused to leave a hotel. A hotel employee told the officer that appellant had been in the lobby for more than two hours and that when asked to leave, appellant became upset and yelled profanities at the staff. The officer was informed that appellant left in taxi cabs, but would then return to the hotel lobby. Appellant concedes that he was in the hotel lobby, did not have identification to register for a room, did not have funds to pay for a room, and that an employee had called a taxi cab for him. Appellant’s description indicatesthat he was guilty of at least petty misdemeanor trespass. See Minn. Stat. § 609.605, subd. 1(b)(3) (“A person is guilty of a misdemeanor if the person intentionally: trespasses on the premises of another and, without claim of right, refuses to depart from the premises on demand of the lawful possessor[.]”)

Appellant’s plea was voluntary. Although appellant contends that his plea was coerced through the threat of imposition of a disorderly-conduct charge, he provides no facts to support that assertion. See King v. State, 562 N.W.2d 791, 794 (Minn. 1997) (stating that a defendant has the burden of establishing facts warranting the reopening of his case); Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (stating that allegations in a postconviction petition must be “more than argumentative assertions without factual support”); State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that the assignment of error based on “mere assertion” and not supported by argument is waived unless prejudicial error is obvious on mere inspection).

Appellant’s plea was intelligent. Appellant knew the nature of the charges; he was charged with trespass after he did not have identification to register for a hotel room or have funds to pay for a room, and a hotel employee called a taxi cab for him and he refused to leave the hotel lobby. Appellant understood the rights he was waiving because he acknowledges that he waived his right to a jury trial. And appellant received the assistance of counsel. See Berkow v. State, 573 N.W.2d 91, 95 (Minn. App. 1997) (stating that a district court may presume that a defendant who has consulted with counsel is aware of his constitutional rights), aff’d, 583 N.W.2d 562 (Minn. 1998). Appellant was also aware of the direct consequences of his guilty plea. Appellant wanted to plead because he did not want to appear before the district court or be subject to further detention. As a consequence of his plea, appellant was to pay a $50 fine, he did not need to make an appearance, and he was not subject to jail time. And despite appellant’s claim that his plea was invalid because he was not present when his plea was entered, appellant advised his attorney to enter the plea on his behalf because he did not want to appear. Appellant was able to enter his plea in the manner he chose and cannot now argue that his presence was required in order for his plea to be valid.

Further, after appellant moved to withdraw his guilty plea, the district court scheduled a postconviction hearing, but appellant failed to appear. Appellant’s failure to appear left the district court to render a decision based solely on appellant’s petition which contained no factual basis upon which to withdraw his plea. See Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005) (stating that the party seeking postconviction relief bears the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief). The district court did not abuse its discretion in denying appellant’s petition for postconviction relief.

Appellant moved this court to remand to the district court. Because we have affirmed the district court, appellant’s motion is denied.

Affirmed; motion denied.