STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2333

Wendell Dwayne O'Neal, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 12, 2006

Affirmed

Minge, Judge

Hennepin County District Court

File No. 040480101

Wendell Dwayne O’Neal, 1738 Roth Street, Madison, WI 53704 (pro se appellant)

Mike Hatch, Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

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

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

MINGE, Judge

Appellant challenges the district court’s dismissal of his petition for postconviction relief. Because there was an adequate factual basis supporting appellant’s guilty plea and because appellant’s other claims are without merit, we affirm.

D E C I S I O N

On December 9, 2004, appellant Wendell Dwayne O’Neal pleaded guilty to attempted simple robbery. Appellant completed the standard guilty-plea petition and answered leading questions from his attorney admitting matters that were the basis for his plea. The district court accepted the plea, stayed execution of a 28-month sentence, and placed appellant on probation. Three months after he entered the plea, the state issued an order for appellant’s arrest and detention because appellant failed to complete chemical-dependency treatment required under the conditions of his probation. After a hearing, probation was revoked, and the sentence was executed. In July, August, and September of 2005, appellant filed numerous petitions for postconviction relief. After neither party appeared at the scheduled hearing on the petitions, the district court denied relief based on the parties’ written submissions.

The threshold issue is whether, by answering the questions asked of him at his plea hearing, appellant actually pleaded guilty to attempted simple robbery. Appellant argues that his attorney’s leading questions merely asked whether he was charged with certain offenses and that by answering affirmatively, appellant was not admitting the facts essential to the crime, but only confirming that he had been charged. But the context of the proceeding makes appellant’s argument unpersuasive. Appellant’s attorney began by placing appellant at the scene on the date in question, and asked appellant if “the offense that you’ve chosen to plead guilty to” occurred at Rainbow Foods. Although this may have been ambiguous, the next two questions focused on appellant’s conduct, not on the content of the criminal complaint. At no time during the proceeding did appellant argue he was innocent of the charge. Moreover, appellant completed a plea petition which clearly states appellant makes no claim of innocence to attempted simple robbery. After accepting the plea, the judge asked appellant if he had anything to say, and appellant said no. We conclude that the record and context of the hearing conclusively establish that appellant pleaded guilty to attempted simple robbery.

II.

The next issue, whether appellant’s plea was factually accurate, is similar to the first. Respondent argues that the factual basis for appellant’s plea is not properly before this court on appeal because, generally, an appellant is barred from raising an issue that he did not raise below. State v. Anderson, 720 N.W.2d 854, 859 (Minn. App. 2006). But we retain discretion to hear issues in the interests of justice. Minn. R. Crim. P. 28.02, subd. 11; Anderson, 720 N.W.2d at 859. Here, appellant’s postconviction submissions raise the accuracy of his plea, and we address that issue in the interests of justice.

To be accurate, a guilty plea must be supported by an adequate factual basis. Beaman v. State, 301 Minn. 180, 183, 221 N.W.2d 698, 700 (1974). While the district court is not required to interrogate the defendant to establish a factual basis for the plea, the district court must “ensure that an adequate factual basis has been established in the record.” State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). Typically, a factual basis is established by “ask[ing] the defendant to express in his own words what happened.” State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).

Minnesota courts regularly discourage the use of leading questions to establish a factual basis for a guilty plea. In Ecker, the Minnesota Supreme Court warned, “[t]he trial judge must be particularly attentive to situations in which a defendant is pleading guilty and is asked only leading questions by counsel.” Ecker, 524 N.W.2d at 716. Although the use of leading questions is discouraged, we do not reverse if “the record supports the conclusion that the defendant committed an offense at least as serious as the crime to which he is pleading guilty.” Lundin v. State, 430 N.W.2d 675, 679 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988). In Ecker, despite the use of leading questions during the plea hearing, the supreme court still found an adequate factual basis for the plea in the record. Ecker, 524 N.W.2d at 717.

Here, appellant contends that the factual basis for his plea to attempted simple robbery was inadequate. Simple robbery occurs when an individual:

having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person’s resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property . . . .

Minn. Stat. § 609.24 (2004). Attempted simple robbery requires a showing of the intent to commit simple robbery and “a substantial step toward” commission of that crime. Minn. Stat. § 609.17, subd. 1 (2004).

Appellant’s factual admissions are sufficient to meet the elements of attempted simple robbery. At the plea hearing, appellant conceded that he knew he was not entitled to the victim’s purse. Appellant also admitted that he used force when he grabbed the victim’s purse and admitted that he attempted to overcome the victim’s resistance and take her property. Appellant’s conduct is also corroborated by the police report in the record, which the plea petition indicates appellant read and discussed with his attorney. Moreover, despite his present assertion of innocence, appellant does not offer an account of the events that differs from the account admitted to at his plea hearing.

Here, appellant’s attorney used leading questions to establish a factual basis for the plea. We have never held that the use of leading questions to establish the factual basis for a plea, standing alone, renders a plea inaccurate. While not optimal, appellant’s admissions here are sufficient to establish a factual basis for appellant’s plea, and we conclude the plea was accurate.

III.

In his statement of the case and reply brief, appellant makes several other objections to his conviction and this review proceeding. Appellant states that: (1) the court improperly denied his motion to disqualify Judge Nord from his postconviction appeal; (2) the district court improperly sentenced him based on Michigan convictions that were in violation of his constitutional rights; (3) he was denied effective assistance of counsel when he entered his guilty plea; and (4) he was improperly denied assistance of counsel on appeal. In the interests of justice, we address these objections.

A. Disqualification of Judge

Appellant first claims that the district court improperly denied his motion to disqualify Judge Nord. “[T]here is no automatic removal as of right in a postconviction proceeding.” Hooper v. State, 680 N.W.2d 89, 92 (Minn. 2004). “No notice to remove shall be effective against a judge who has already presided at the trial . . . except upon an affirmative showing of cause on the part of the judge.” Minn. R. Crim. P. 26.03, subd. 13(4). The rules of criminal procedure define “cause” to include grounds identified for disqualification under the Code of Judicial Conduct, Minn. R. Crim. P. 26.03, subd. 13(3), which recommend disqualification when a judge’s “impartiality might reasonably be questioned . . . .” Minn. Code Jud. Conduct, Canon 3D(1) (2004). We will reverse a district court’s ruling on a motion to remove for cause only upon an abuse of discretion. Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).

Appellant’s motion to disqualify Judge Nord was based on his bare assertion that she was partial, intimidating, and retaliatory. The record does not support appellant’s allegations of retaliation or intimidation on the part of Judge Nord. Judge Nord’s thorough analysis of appellant’s postconviction claims for relief belies appellant’s claim of partiality. Because appellant did not affirmatively demonstrate cause for removal, and “[t]he mere fact a judge presided at trial is not cause for removal in a postconviction proceeding,” we conclude that the district court did not abuse its discretion. See Johnson v. State, 486 N.W.2d 825, 828 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).

B. Michigan Conviction

Appellant next claims that the district court improperly relied upon appellant’s Michigan convictions when calculating his sentence. The Minnesota Sentencing Guidelines clearly contemplate the inclusion of out-of-state felony convictions in a defendant’s criminal-history score. Minn. Sent. Guidelines II.B.5 (“The designation of out-of-state convictions as felonies, gross misdemeanors, or misdemeanors, shall be governed by the offense definitions and sentences provided in Minnesota law.”). The weight given to a defendant’s out-of-state convictions is committed to the discretion of the sentencing court. State v. Reece, 625 N.W.2d 822, 825 (Minn. 2001).

Generally, we do not collaterally review out-of-state convictions:

There may be cases in which the sentencing court, in determining the defendant’s criminal history score, should look at the procedure that led to the prior conviction. Generally, however, the trial court should only have to determine if the defendant was convicted and if the conviction was for an offense that corresponds to an offense in Minnesota.

Pilger v. State, 337 N.W.2d 695, 698 (Minn. 1983). We collaterally review a foreign conviction only in “unique cases.” State v. Edmison, 379 N.W.2d 85, 86 (Minn. 1985) (finding that denial of the right to counsel qualifies as a unique case).

Here, appellant does not dispute that he was previously convicted in Michigan for prison escape and retail fraud. And appellant does not dispute that those offenses correspond to Minnesota offenses. Instead, appellant seeks to collaterally challenge those convictions because they were allegedly obtained in violation of appellant’s constitutional rights. But on appeal appellant does nothing more than assert the constitutional invalidity of those convictions and does not in any way document the alleged violations or the exceptional circumstances of his case. Therefore, even if we were inclined to collaterally review the Michigan convictions, we are unable to do so based on the record before us.

C. Trial Counsel

Appellant next objects that he was denied effective assistance of counsel when he entered his guilty plea. To demonstrate appellant was denied his constitutional right to effective assistance of counsel, he must show “(1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that the outcome would have been different but for [his] counsel[’s] errors.” Bruestle v. State, 719 N.W.2d 698, 704 (Minn. 2006) (alterations in original) (quotation and citation omitted). “[T]here is a strong presumption that counsel’s performance fell within a wide range of reasonable assistance.” Id. at 705 (quotation and citation omitted).

Here, appellant has not met his burden to show his trial counsel’s conduct fell below an objective standard of reasonableness. Appellant’s claim seems to be based on his attorney’s use of leading questions to establish the factual basis for his plea. But because Minnesota courts have only discouraged the use of leading questions and never held the use of such questions to constitute error standing alone, we do not find that appellant’s attorney’s conduct fell below an objective standard of reasonableness. Moreover, appellant has not produced testimony from, or affidavits of, disinterested defense attorneys to establish that appellant’s counsel’s conduct was objectively unreasonable. Finally, we are confident that the outcome would not have been different even had appellant’s counsel avoided her alleged errors.

D. Postconviction Counsel

Finally, appellant asserts that, in connection with this postconviction proceeding, he was improperly denied counsel in violation of the Minnesota Constitution. Article 1, Section 6 of the Minnesota Constitution provides criminal defendants with the right to assistance of counsel. Minn. Const. art. I, § 6. Recently, the Minnesota Supreme Court held that this right to counsel “extends to one review of a criminal conviction, whether by direct appeal or a first review by postconviction proceeding.” Deegan v. State, 711 N.W.2d 89, 98 (Minn. 2006). Accordingly, in Deegan the court struck down, as unconstitutional, a 2003 amendment to the Postconviction Remedy Act that allowed the state public defender to deny representation to postconviction petitioners “who had pleaded guilty and received no greater than the presumptive sentence.” Id. at 97-98.

Here, appellant was represented by counsel at his original plea hearing. Subsequent to the revocation of his probation, appellant filed various letters and documents with the district court which were eventually construed by the district court as a petition for postconviction relief. Appellant received the advice of counsel for that proceeding. The record supplied by appellant includes a lengthy letter from a staff attorney in the office of the state public defender indicating that he had talked with appellant via telephone, thoroughly reviewed the merits of appellant’s case, and recommended that appellant not pursue a guilty-plea withdrawal. Appellant then followed through with his postconviction petition without counsel, and the district court denied his petition for relief in a thorough memorandum of law.

Appellant filed a pro se appeal shortly before the supreme court decided Deegan. Based on the Deegan decision, on April 5, 2006, this court referred appellant’s case to the state public defender’s office. On May 9, 2006, an attorney appointed to review appellant’s case by the state public defender’s office wrote this court indicating that he met with appellant in person, reviewed the file, and had offered appellant representation, but that appellant ultimately declined assistance and decided to proceed pro se. The letter indicates that appellant was sent a copy. The attorney is an officer of the court and we rely on his representations. At the time appellant and that attorney met in person, appellant filed his reply brief, which only recites as part of the procedural history of the case his contention that he did not have appellate counsel. However, appellant does not claim in that brief or subsequently that he was denied his right to counsel or dispute the statements in the letter from the public defender. Based on these facts, we conclude that this issue was not raised, and if it was raised, that appellant rejected the assistance of counsel.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.