This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-29

A06-392

 

State of Minnesota,

Respondent,

 

vs.

 

Michelle Kim Gibson-Webb,

Appellant,

 

and

 

Michelle Kim Gibson-Webb, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed June 26, 2007

Affirmed in part, reversed in part, and remanded

Randall, Judge

 

Ramsey County District Court

File No. K9-05-1165

 

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

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard., Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, Minnesota State Public Defender, Philip Marron, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

            Considered and decided by Randall, Presiding Judge; Klaphake, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant Michelle Kim Gibson-Webb challenges the district court judgment of October 6, 2005, accepting her guilty plea and sentencing her; and the district court order of December 21, 2005, denying appellant’s pro se petition for postconviction relief.  Appellant argues that (1) the district court erred by accepting the plea bargain, because there was not an adequate factual basis for the plea; and (2) the postconviction court abused its discretion by summarily denying her petition without an evidentiary hearing and without appointing counsel or advising appellant of her right to counsel in those proceedings.  We affirm in part, reverse in part, and remand.

FACTS

            Appellant Michelle Kim Gibson-Webb was charged with wrongfully obtaining public assistance, in violation of Minn. Stat. §§ 256.98, 609.52, subd. 3(2) (2004).   A pretrial hearing was held on June 23, 2005.  While represented by a public defender, appellant pleaded guilty to wrongfully obtaining public assistance under a plea agreement reached with the state.  In return, the state recommended a stay of imposition of the sentence, a cap of 30 days on jail time or a court-determined period of community service work, and five years’ probation.  Appellant’s attorney examined her to establish a factual basis for her guilty plea; appellant stated that she wanted to plead guilty and accept responsibility for receiving public assistance to which she was not entitled.  The district court accepted appellant’s plea.

            However, subsequently at the scheduled sentencing hearing, the district court refused to honor the plea agreement because during the pre-sentence investigation, it learned of appellant’s prior conviction for welfare fraud.  The district court permitted appellant to withdraw her guilty plea.

            At a later hearing, appellant requested that her plea withdrawal be vacated and that the court again accept her plea of guilty to the charge of wrongfully obtaining public assistance.  Appellant and respondent had reached a second plea agreement.  Because of her prior conviction, respondent agreed to a stay of execution of the sentence, rather than the original stay of imposition that the district court had refused.  Appellant’s attorney examined appellant to confirm that she wanted to rescind her plea withdrawal and reinstate her guilty plea.  Appellant stated that she agreed with the sworn statements she made at her first plea, understood the rights that she was giving up by pleading guilty, and understood the difference between a stay of execution and a stay of imposition.  The district court accepted appellant’s guilty plea and sentenced her, staying execution of the sentence.  A contested restitution hearing was held on October 31, 2005, and the district court ordered appellant to pay restitution in the amount of $3,312. 

            Appellant then filed a pro se postconviction motion on November 30, 2005, and a pro se postconviction petition on December 1, 2005.  The relief appellant requested in both documents was substantively the same; she requested withdrawal of her guilty plea, arguing that she did not receive effective assistance of counsel; her counsel was biased and improperly prepared; and her counsel coerced her into pleading guilty.  The district court sent notices of the postconviction proceedings to the Hennepin County Attorney’s Office, the Attorney General, and the State Public Defender on November 30 and December 2, 2005.  The prosecution filed its answer and asked the district court to dismiss the proceedings.  Without a hearing, the district court order of December 21, 2005, summarily denied appellant’s pro se petition for postconviction relief. 

            Appellant filed two separate appeals from the judgment of conviction and from the denial of her pro se postconviction relief requests, and she sought consolidation of the two appeals.  We granted appellant’s motion to consolidate the two appeals.

D E C I S I O N

I.

            Appellant argues that the documents she filed on November 30, 2005, and December 1, 2005, constituted postconviction proceedings.  Respondent argues that appellant’s purported postconviction requests were improper because such proceedings may only be commenced when direct appellate relief is unavailable.  Minn. Stat. § 590.01 (2004).

            Under Minnesota law, direct appeal is available in a felony case within 90 days after the final judgment.  Minn. R. Crim. P. 28.02, subd. 4(3).  The availability of and conditions for post-conviction relief are governed by Minn. Stat. § 590.01, which states: “Except at a time when direct appellate relief is available, a person convicted of a crime . . . may commence a proceeding to secure relief by filing a petition . . . .”  Minn. Stat. § 590.01, subd. 1 (2004) (emphasis added). 

            Here, the final judgment of conviction was filed on October 6, 2005.  Appellant filed her postconviction requests before the 90-day time period for direct appeal had run.  Appellant filed a document labeled “Post Conviction Notice of Motion and Motion Affidavit in Support of Motion” on November 30, 2005.  She filed a second document entitled “Post Conviction Petition for Relief Pending Appeal or Trial” on December 1, 2005.  Although labeled as such, these documents did not constitute postconviction proceedings because they were prematurely filed.  See State v. Saliterman, 431 N.W.2d 590, 592 (Minn. App. 1988) (holding that motion to withdraw guilty plea filed before expiration of time for direct appeal is not treated as a postconviction petition).  Direct appeal was still available to appellant, which she eventually filed within the 90-day time frame with representation by a public defender.  We construe the pro se documents appellant labeled postconviction requests as appellant’s motions to withdraw her guilty plea after sentencing.  The district court’s order of December 21, 2005, was a response to those motions, rather than a denial of postconviction relief.  Because we do not construe appellant’s motions as postconviction petitions, this is not a post-conviction appeal.  Rather, this is a direct appeal from conviction in which appellant may properly challenge the denial of her motion.  See Minn. R. Crim. P. 28.02, subd. 11 (providing that on appeal from conviction this court may review denial of posttrial motions and “any other matter as the interests of justice may require.”).  Because appellant’s documents were not petitions for postconviction relief, it follows that the postconviction remedy statute, Minn. Stat. § 590.01, does not apply here.

II.

            Appellant contends that the district court did not provide sufficient notice to the state public defender and that she was entitled to representation by counsel because what she claims were her “postconviction proceedings” constituted her first appeal.  Respondent argues that the district court provided sufficient notice and that appellant’s motions, seeking withdrawal of her guilty plea and asserting ineffective assistance of counsel, were not actually post-conviction proceedings.  Respondent correctly asserts that Minn. Stat. § 590.01 did not apply, appellant was not entitled to an attorney, and the district court did not err.  As discussed in the previous section, appellant’s motions did not constitute postconviction proceedings, and we treat them as a motion to withdraw her guilty plea after sentencing.  Right to counsel

            Appellant contends that she should have been awarded the right to counsel, because under the Minnesota Constitution, “a defendant’s right to the assistance of 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) (citing Minn. Const. art. I, § 6).  While this is true, appellant still had the opportunity to (and actually did) file a direct appeal.  And appellant is represented by an attorney on this direct appeal.

            The district court did not err by not appointing an attorney to represent appellant on her motions seeking withdrawal of her guilty plea after sentencing under Minn. Stat. § 590.01, because these motions did not constitute a postconviction proceeding.

Notice

            Appellant argues that the district court did not provide adequate notice of her pro se postconviction petitions to the state public defender.  Appellant cites the postconviction statute:  “In the event the petitioner is without counsel, the court administrator shall forthwith transmit a copy of the petition to the state public defender . . . .”  Minn. Stat. § 590.02, subd. 1(4) (2004).  Failure to do so constitutes reversible error.  Paone v. State, 658 N.W.2d 896, 899-900 (Minn. App. 2003). 

            Appellant’s arguments that the district court failed to provide proper notice to the state public defender are without merit.  Here, the district court was not required to provide notice, because these motions did not constitute postconviction proceedings; thus Minn. Stat. § 590.02 does not apply.  Minn. Stat. § 590.01.  The events that trigger a duty to provide notice of the right to counsel are those that are initiated by the prosecution, such as charging/arraignment, probation revocation, etc.  Notice could not be required when a defendant is contemplating a motion to withdraw the plea.  Arguably, the filing of the motion could trigger a duty to provide notice.  But because Minn. R. Crim. P. 15.05 does not require a hearing on such a motion, there would be no practical way to implement a notice requirement.

            Even if this had been a proceeding mandating that the district court provide notice, it met this requirement: The district court sent two notices to the state public defender on November 30 and December 2, 2005, stating that appellant had filed two pro se documents.  Appellant contends that the notice was inadequate because the district court did not afford the state public defender sufficient time to respond to the notice and to become involved in the proceedings.  Appellant argues that three weeks was not long enough.  She cites no authority to support this assertion.  This court need not consider allegations on appeal that are unsupported by legal analysis.  Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994).

III.

            Appellant argues that the district court erred by accepting appellant’s guilty plea because the plea lacked an adequate factual basis.  Additionally, in her pro se “requests for post-conviction relief,” appellant asked the district court to permit withdrawal of her guilty plea because her attorney was ineffective, biased, unprepared, and coercive.  Appellant claimed she accepted the plea agreement under duress.            

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).  Decisions on whether or not to grant a motion to withdraw a guilty plea are generally left to the district court.  Id.  This court will reverse that determination only if the district court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  The district court may allow a defendant to withdraw a guilty plea, even after sentencing, on “proof to the satisfaction of the court 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); Black v. State, 725 N.W.2d 772, 776 (Minn. App. 2007).  Manifest injustice results when a defendant’s plea is not entered accurately, voluntarily, and intelligently.  Alanis, 583 N.W.2d at 577.   If the factual basis underlying appellant’s guilty plea was insufficient, this would constitute a manifest injustice.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). 

Factual Basis

            Here, appellant asserts on appeal that the district court abused its discretion by denying her request to withdraw her guilty plea after sentencing, arguing her plea was not accurate.  Appellant claims that her plea was not accurate because the court failed to establish a factual basis regarding the element of intent.  She contends that there was an insufficient factual basis for her guilty plea because she “never admitted to knowing that she was not entitled to the benefits she received,” as required under the statute.  Minn. Stat. § 256.98, subd.1 (2004).  

            We note that before this appeal, appellant never argued that the reason her guilty plea was improper was because it lacked a factual basis.  Even in her pro se motion appellant did not argue this specific theory to withdraw her guilty plea.  But in the interests of justice we will consider this theory on appeal.  “A defendant is free to simply appeal directly from a judgment of conviction and contend that the record made at the time the plea was entered is inadequate in one or more of these respects.”  Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989) (referring to challenging one or more of the three basic prerequisites to a valid guilty plea: the plea must be accurate, voluntary, and intelligent).

            Appellant pleaded guilty to wrongfully obtaining public assistance in violation of Minn. Stat. § 256.98 (2004).  Under the statute, to convict appellant, the state would have been required to prove the following facts:  “(1) She obtained assistance; (2) She was not entitled to this assistance at all, or in the amount she was seeking, and that she knew this; (3) She made a false representation and intended thereby to obtain assistance; (4) The value of the excess assistance was more than $2,500.”  State v. Ibarra, 355 N.W.2d 125, 129 (Minn. 1984); Minn. Stat. § 256.98.  Appellant contends that she never admitted to knowing that she was not entitled to the benefits she received.  She argues that, in fact, her testimony reflected that she reported the income she was required to report. 

            As noted above, a proper factual basis must be established for a guilty plea to be accurate.  Ecker, 524 N.W.2d at 716.  Usually, to establish a factual basis, the defendant will explain in her own words the circumstances surrounding the crime.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  It is not necessary for a district-court judge to personally interrogate the defendant prior to accepting the defendant’s guilty plea if defense counsel and the prosecutor have established an adequate factual basis.  Ecker, 524 N.W.2d at 716 (citing State v. Nelson, 311 Minn. 109, 110, 250 N.W.2d 816, 817 (1976)). 

It is the responsibility of the [district-court] judge, however, to ensure that an adequate factual basis has been established in the record.  The [district-court] judge, therefore, should personally interrogate the defendant unless the judge is reasonably satisfied an adequate factual basis has been established.  The [district-court] judge must be particularly attentive to situations in which a defendant is pleading guilty and is asked only leading questions by counsel. 

 

Id. (citations omitted).

            Here, a sufficient factual basis for appellant’s guilty plea was lacking[1].  First, defense counsel asked mostly leading questions of appellant.  Second, as evidenced by the record, appellant never admitted the intent element of the crime.  The following exchange occurred between defense counsel and appellant regarding their attempt to establish an adequate factual basis:

Q.        What I’m saying is you understand that you didn’t report all of the specific income amounts that you were receiving during that time period; is that true?

 

A.        No, it’s not.  I did report the income that I was supposed to report. 

 

Q.        Let me ask again.  Are you saying that you specifically reported every dollar amount that you received during that time frame?

 

A.        I reported what I was supposed to report.  So every dollar amount, I can’t say yes to that, but I reported what I was supposed to report.

 

Q.        And do you understand that what you thought you were supposed to report is not the same as what the Human Services Department thinks you were supposed to report; is that fair?

 

A.        Yes, that’s fair.

 

. . . .

 

Q.        And you disagree with the various laws and departmental policies governing these welfare matters; is that a fair statement?

 

A.        Yes.

 

Q.        But notwithstanding that disagreement, you want to plead guilty and accept responsibility for receiving income to which you were not entitled []; is that true?

 

A.        Yes.

 

Appellant accepted responsibility for receiving income to which she was not entitled, but she would not admit that she knew she was receiving income to which she was not entitled.  Appellant admitted that she did not report certain income but never admitted, as required by the statute, that she knew she was supposed to report it or that she made false representations, intending thereby to obtain assistance.  Minn. Stat. § 256.98.  In fact, the record shows appellant maintained that she reported everything that she thought she was required to report.  Neither the prosecution nor the judge asked appellant any questions.  Instead, the district court judge simply concluded that appellant had “admitted the essential elements of the offense.” 

Alford-Goulette Plea

            Respondent appears to argue that appellant’s plea was an Alford-Goulette plea, contending that appellant was thus not required to admit each element of the charged crime.  Under North Carolina v. Alford and State v. Goulette, a defendant may “plead guilty without expressing the requisite intent so long as [she] believed the state’s evidence was sufficient to convict [her].”  Ecker, 524 N.W.2d at 717 (referring to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970) and State v. Goulette, 258 N.W.2d 758 (Minn. 1977)).  An adequate factual basis still must be established.  Id. at 716.  Additionally, “it is important for either counsel or the [district] court to indicate explicitly on the record that the defendant is entering an Alford-type guilty plea.  The defendant should be questioned directly regarding whether he or she understands the legal implications of such a plea.”  Id. at 717.  This was not done here.  It is clear the plea was a standard plea.  There is no evidence in the record to support respondent’s assertion that appellant’s guilty plea was an Alford-Goulette plea.

            When appellant, at least twice, talked about reporting what she thought she was supposed to report, that should have been an instant red flag for the prosecutor, the defense attorney, and the court.  Ideally the court would have called for a short recess at that point and directed appellant to confer with her attorney in private about what she really wanted to do; e.g., take advantage of the plea agreement or claim her innocence and stand trial.  Also, it would have been proper for the court to discuss in chambers with the state and defense counsel whether this might be a situation for an Alford-Goulette plea.  This would have satisfied all parties and the record.  But this plea was not an Alford-Goulette plea, and there was not a sufficient factual basis for a straight plea.  Thus, we remand. 

Ineffective Assistance of Counsel

Appellant next argues that the district court erred by denying her request for withdrawal of her guilty plea because she received ineffective assistance of counsel when she entered her plea.  Claims of ineffective assistance of counsel are mixed questions of law and fact, and we review them de novo.  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).  To prevail on a claim of ineffective assistance of counsel, appellant must show that her attorney’s performance “fell below an objective standard of reasonableness and that [she] was prejudiced as a result.”  Sessions v. State, 666 N.W.2d 718, 722 (Minn. 2003) (quotation omitted).  Regarding appellant’s request to withdraw her guilty plea due to ineffective assistance of counsel, the district court order of December 21, 2005, found:  “[Appellant]’s claims are wholly without merit.  She has failed to meet her burden of proof that her attorney was in any way deficient or that she was prejudiced by his performance.” 

The district court properly rejected appellant’s claim; appellant made mere assertions, without offering factual support.  In her motion to withdraw her guilty plea, she asserted that her attorney coerced her into pleading guilty at a time when she was under great stress; and she argued that her attorney was biased, did not provide pertinent information to appellant and to the court, and was not properly prepared.  The record does not support any assertion that her attorney was biased, coercive, or unprepared.  Appellant relies on Minn. Stat. § 590.04, subd. 1 (2004), arguing that she should have received an evidentiary hearing on this issue and that the district court abused its discretion by summarily ruling on her motion.  However, Minn. Stat. § 590.04, subd. 1, only applies to postconviction proceedings, which these were not.  Under Minn. R. Crim. P. 15.05, which applies here, no hearing is required on such a motion. 

Appellant filed a pro se supplemental brief.  We have considered the issues raised in that brief and conclude they are without merit.  We affirm on the issue of ineffective assistance of counsel.  We reverse and remand on the issue of a factual basis for the plea.

            Affirmed in part, reversed in part, and remanded.