Opinion
No. CX-96-2529.
Filed August 12, 1997.
Appeal from the District Court, Dakota County, File No. K195435.
Hubert H. Humphrey III, Attorney General, (for Respondent).
James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Lawrence F. Clark, Assistant County Attorneys, (for Respondent).
John G. Westrick, Westrick McDowall-Nix, P.L.L.P., (for Appellant).
Robert D. Miller, Robert D. Miller Associates, (for Appellant).
Considered and decided by Harten, Presiding Judge, Parker, Judge, and Davies, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant challenges the postconviction court's denial of his motion to withdraw his guilty plea. We reverse and remand.
FACTS
In April 1995, appellant Keith Thomas Hippler appeared pro se before the district court and entered a plea of guilty to the charge of second-degree criminal sexual conduct. The court stayed imposition of his sentence on several conditions, including his submitting to a psychological evaluation and following any resulting recommendations.
In September 1996, corrections officials recommended execution of his sentence for failure to complete the recommended sex offender treatment. In October 1996, appellant moved to withdraw his guilty plea. The postconviction court, after a hearing, denied appellant's motion. He now argues that: (1) he did not make a knowing and intelligent waiver of his rights, including his right to counsel, at the time he entered his plea; (2) the postconviction court improperly considered police reports in determining whether or not to allow him to withdraw his plea; and (3) there was not a sufficient factual basis for the plea.
DECISION
Whether a defendant should be allowed to withdraw a plea under Minn.R.Crim.P. 15 is reviewed under the abuse-of-discretion standard. Barnes v. State , 489 N.W.2d 273, 275 (Minn.App. 1992), review denied (Minn. Nov. 3, 1992). After sentencing, a plea may be withdrawn only "to correct a manifest injustice." Minn.R.Crim.P. 15.05, subd. 1. "Manifest injustice" entitling a defendant to withdraw a plea will exist if the record does not reflect a knowing and intelligent waiver of the right to counsel. State v. Foncesa , 505 N.W.2d 370, 372-73 (Minn.App. 1993).
Here, appellant acknowledged on the record that he was appearing without counsel, had discussed the case with a private attorney, had decided to represent himself, and had contacted the prosecutor to set up a meeting to negotiate a plea. Appellant also had completed a written plea petition that informed him of his rights.
The court, however, failed to conduct the "penetrating and comprehensive examination" outlined in State v. Rubin , 409 N.W.2d 504, 506 (Minn. 1987).
[T]o ensure a knowing and intelligent waiver of counsel, the court should make a penetrating and comprehensive examination of the defendant as to his comprehension of the
(1) Nature of the charges;
(2) Statutory offenses included within them;
(3) The range of allowable punishments;
(4) The possible defenses;
(5) The possible mitigating circumstances; and
(6) All other facts essential to a broad understanding of the consequences of the waiver.
Id. at 506. Appellant's written petition is not dispositive on the issue of the validity of his waiver of rights. See State v. Lyle , 409 N.W.2d 549, 552 (Minn.App. 1987) (written plea petition is only "prima facie evidence" of valid waiver of counsel); State v. Clark , 361 N.W.2d 104, 107 (Minn.App. 1985) (same).
Under these circumstances, we cannot say that there was a knowing and intelligent waiver. The postconviction court abused its discretion in refusing to allow appellant to withdraw his plea.
We need not reach appellant's other arguments.