State of Minnesota v. Thomas Joseph McManus ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-0977
State of Minnesota,
Respondent,
vs.
Thomas Joseph McManus,
Appellant.
Filed November 24, 2014
Affirmed; motion granted
Reilly, Judge
Chisago County District Court
File No. 13-CR-10-298
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Janet Reiter, Chisago County Attorney, Beth A. Beaman, Assistant County Attorney,
Center City, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Renée Bergeron, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
REILLY, Judge
In this appeal, appellant argues that the district court erred in denying his petition
to withdraw his guilty plea to one count of theft of a motor vehicle because the plea was
not voluntary, intelligent, or accurate and because the district court violated the parties’
unqualified plea agreement. Appellant also moves to strike a portion of respondent’s
brief. We grant appellant’s motion to strike and affirm the district court’s order.
FACTS
Shortly after midnight on March 15, 2010, White Bear Lake police officer Ryan
George pulled over a 2001 Buick driven by McManus. Officer George ran the Buick’s
vehicle identification number and discovered that the Buick was stolen. After informing
McManus and the Buick’s passenger, McManus’s grandson, that the Buick was stolen,
the grandson told the officer that McManus has previously taken cars from dealerships to
test drive and not returned them. He also told Officer George that he could not believe
that his grandfather had “done this again.” The state charged McManus with theft of a
motor vehicle in violation of Minn. Stat. § 609.52, subds. 2(17), 3(3)(d)(v) (2008). On
August 1, 2012, McManus pleaded guilty to one count of felony theft of a motor vehicle.
The terms of the plea agreement were as follows: McManus’s other charges in a
different file would be dismissed, there would be a stay of execution, there would be no
additional jail time, restitution would be ordered, and McManus would be subject to
probation for up to five years. The district court scheduled a sentencing hearing for
September 24, 2012. McManus did not appear at the hearing, and his counsel indicated
that his absence was due to medical procedures.
Sentencing occurred on March 6, 2013. Due to McManus’s failure to cooperate
with the presentence investigation (PSI) and his four prior theft-related felony
convictions, the state requested that the district court follow the PSI report’s
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recommendations and requested 60 days of local confinement. The district court
sentenced McManus to 60 days in the Chisago County jail, 5 years of probation, and
ordered restitution. McManus was 76 years old at the time he entered into the plea
agreement.
On June 5, 2013, McManus filed a notice of appeal. We stayed his appeal pending
postconviction proceedings. During the postconviction proceedings, the district court
held an evidentiary hearing on McManus’s motion seeking to withdraw his plea on
February 5, 2014. The district court denied McManus’s petition for postconviction relief
on March 11, 2014, and this court dissolved the stay on April 22, 2014. This appeal
follows.
DECISION
I.
When an appellant files a direct appeal that is stayed pending postconviction
proceedings, we apply the standard of review for direct appeals. Santiago v. State, 644
N.W.2d 425, 439 (Minn. 2002). “A defendant bears the burden of showing his plea was
invalid.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). The validity of a plea is a
question of law that we review de novo. Id. We defer to the postconviction court’s
credibility assessments. Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006).
To withdraw a guilty plea after sentencing, a defendant must show the withdrawal
is necessary to correct a manifest injustice. Raleigh, 778 N.W.2d at 93 (citing Minn. R.
Crim. P. 15.05, subd. 1). A guilty plea is invalid and manifestly unjust if it is not
voluntary, intelligent, and accurate. Id. at 94. If a guilty plea fails to meet any of these
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three requirements, the plea is invalid. State v. Theis, 742 N.W.2d 643, 650 (Minn.
2007). McManus challenges the voluntariness, intelligence, and accuracy of his plea.
A. Voluntariness
McManus argues that his plea was not voluntary because he was ill and under the
influence of medication at the time of the plea hearing. The voluntariness requirement of
a valid guilty plea “insures that a guilty plea is not entered because of any improper
pressures or inducements.” State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000). To
analyze the voluntariness requirement, “the court examines what the parties reasonably
understood to be the terms of the plea agreement,” Raleigh, 778 N.W.2d at 96, and
considers all the relevant circumstances surrounding the plea. State v. Danh, 516 N.W.2d
539, 544 (Minn. 1994).
At the postconviction hearing, McManus testified that, during the sentencing
hearing, he did not feel well and was experiencing “[a]nxiety and high level [of] chest
pain during the proceedings.” In its order denying relief, the district court noted that,
although McManus claimed to suffer from health issues and was taking medication when
he entered the plea, “he fail[ed] to offer any medical records, affidavits, correspondence
from his treating physicians, or any other corroborating evidence besides” that of his
sister’s testimony. Moreover, the district court found that it had “the opportunity to
observe [McManus] throughout both the plea hearing and sentencing [hearing] and notes
that, based upon this Court’s personal observations, [McManus’s] testimony lacks any
credibility whatsoever.” At the end of the evidentiary hearing, the district court
explained
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[I]t’s not very often you see a 76-year-old man with 17 felony
convictions, including a conviction for habitual criminality.
It just doesn’t happen that often, and because of that these
events stand out very clearly in my head. . . . And I want to be
very clear on that. I do remember very distinctly Mr.
McManus making that plea and he being completely coherent
and clear and waiving his rights intelligently. So I want to
add that to the record.
McManus claims that this finding is clearly erroneous because the record does not
support it. Although, as McManus accurately notes, he only gave “yes” or “no”
responses at the plea hearing, the district court’s assessment is supported by other record
evidence.
At the plea hearing, the following exchange took place between McManus and his
attorney:
[ATTORNEY]: Mr. McManus, I am showing you a
document entitled a petition to enter a plea of guilty; do you
recognize this?
[MCMANUS]: Yes.
[ATTORNEY]: You and I went over this line by line before
we came into Court this afternoon?
[MCMANUS]: Yes.
[ATTORNEY]: Did you sign the back of the last page?
[MCMANUS]: Yes.
[ATTORNEY]: Did you do that to indicate you understood
all of the rights?
[MCMANUS]: Yes.
[ATTORNEY]: You’re willing to give up all those rights?
[MCMANUS]: Yes.
[ATTORNEY]: And you’re willing to do that because in
exchange for giving up your rights, you’re being offered a
plea agreement; and you want to take advantage of it?
[MCMANUS]: That’s right.
[ATTORNEY]: Do you have any questions for either myself
or the Judge at this time?
[MCMANUS]: No.
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In addition, the plea petition included a paragraph that listed the drugs McManus was
currently taking—“blood pressure, heart, pain meds” and that he had not been treated for
a nervous or mental condition. Lastly, at the sentencing hearing, McManus articulately
described at length his assessment of the situation and his charge.
McManus also contends that he was under severe stress and anxiety at the time of
the plea hearing and therefore was unable to understand the plea negotiations. The state
relies on Williams v. State, 760 N.W.2d 8 (Minn. App. 2009), for the proposition that
stress at the time of pleading and a limited period in which a defendant has to accept a
plea do not provide the necessary factual support to invalidate a plea. We agree.
In Williams, the appellant entered a Norgaard plea to assault and terroristic-threats
charges. 760 N.W.2d at 10. On appeal, appellant alleged that her plea was not voluntary
because, at the time of the plea, she was depressed, under duress, ill-advised, and only
had a short time to decide whether to accept the plea. Id. at 14. This court rejected the
appellant’s claim that her plea was involuntary because she did not submit any factual
support for her allegations, and her plea petition acknowledged that she had not been
treated for any nervous or mental conditions, that she was satisfied with her attorney, and
no one had threatened her to enter a guilty plea. Id. at 14-15. Here, like in Williams, the
plea petition shows that McManus indicated that he was not being treated for a nervous
or mental condition, and his list of medications did not include anxiety medication.
Based on the record, we are satisfied that McManus understood the terms of the
plea agreement and acknowledged that he pleaded guilty without threats or coercion.
Accordingly, McManus’s involuntary-plea argument is unavailing.
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B. Intelligence
McManus argues that the intelligence requirement of the plea agreement was
lacking because he had “very little” contact with his attorney prior to entering a plea in
this case. The intelligence requirement ensures that a defendant understands the charges
against him, the rights he is waiving, and the consequences of his plea. State v.
Farnsworth, 738 N.W.2d 364, 372 (Minn. 2007). “‘Consequences’ refers to a plea’s
direct consequences, namely the maximum sentence and fine.” Raleigh, 778 N.W.2d at
96.
McManus claims that the district court’s finding that he fully understood the plea
agreement is not supported by sufficient evidence because there is no proof in the record
that his counsel discussed defenses, the guideline sentence, or the consequences of failing
to complete the PSI. Although the specific consequences of failing to complete the PSI
were not addressed on the record, McManus’s attorney adequately counseled him on the
plea agreement.
When asked about his plea petition process at the postconviction hearing,
McManus’s attorney stated:
I sit down with [my clients]. I go through [the plea petition].
I start out by filling out the information that’s required . . . . I
think there’s probably four or five questions on the plea
petition that goes over whether they’ve been ill recently,
whether they’re taking medications, whether they’ve seen a
psychiatrist, whether they’ve been treated for mental issues.
So I always go through that. Then I go into their actual trial
rights, and generally what I do is I’ll say do you understand
you have the right to have a trial? And then we go into
whether they want it to be a jury trial, a court trial, how the
trial would happen with jurors.
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I talk about how the case—we always talk about what
they would do to prove the case. In other words, we could
call certain witnesses, we could cross-examine those
witnesses. I explained what cross-examination is. I say that
we could subpoena witnesses. We go through if there’s any
evidence in the case, and that probably would have been done
before I went through the plea petition. I would ask the client
what he would have for witnesses, if there are any. And then
if they understand all those rights, I think those are
numbers—I can’t remember in the plea petition, but there’s
like seven or eight of them in a row. And then, you know, we
talk about the things that you would have to do after you plea,
you know, in terms of the PSI.
The plea petition specified that McManus agreed that he had sufficient time to
discuss the case with his attorney, that his attorney discussed possible defenses with him,
that his attorney had fully advised him, and what maximum penalty could be imposed for
the crime. Most importantly, the petition further provided that if McManus did “not
cooperate with the Pre-Sentence Investigation . . . the plea agreement, including any
agreement or cap on time to serve will be null and void and my plea will be considered a
straight plea and I understand I may be sentenced accordingly.” McManus signed the
petition and told the district court that he went over the petition line-by-line with his
attorney and understood all the rights that he was giving up. The record shows that
McManus was informed of the consequences for not cooperating with the PSI.
Therefore, McManus’s plea was intelligent.
C. Accuracy
The accuracy requirement protects defendants from pleading guilty to crimes that
are more serious than the crimes they could be convicted of at trial. Lussier v. State, 821
N.W.2d 581, 588 (Minn. 2012). “A proper factual basis must be established for a guilty
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plea to be accurate.” State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). A plea’s
factual basis is adequate if there are “sufficient facts on the record to support a conclusion
that defendant’s conduct falls within the charge to which he desires to plead guilty.”
State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003). The factual basis of a plea,
however, becomes “inadequate when the defendant makes statements that negate an
essential element of the charged crime because such statements are inconsistent with a
plea of guilty.” Id. at 350.
McManus challenges the accuracy of his plea, claiming that the factual basis for
the plea was improperly established through the use of leading questions. Typically, the
district court can satisfy the accuracy requirement “by asking the defendant to express in
his own words what happened.” Lussier, 821 N.W.2d at 589. The supreme court,
however, has cautioned against the exclusive use of leading questions to establish the
factual basis for the plea. Id.; see, e.g., Ecker, 524 N.W.2d at 716 (“The trial judge must
be particularly attentive to situations in which a defendant is pleading guilty and is asked
only leading questions by counsel.”). But the failure of the district court to “elicit proper
responses” does not require plea withdrawal if the record “contains sufficient evidence to
support the conviction.” Raleigh, 778 N.W.2d at 94. In determining whether the record
contains sufficient evidence, this court may consider the plea petition, the plea colloquy,
and any other evidence in the record. See Lussier, 821 N.W.2d at 588-89.
To prove a charge of motor-vehicle theft, the state must show that the defendant
(1) took or drove a motor vehicle, (2) without the consent of the owner, (3) knowing or
having reason to know that the owner did not give consent. Minn. Stat. § 609.52, subd.
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2(a)(17) (2010). The record confirms the prosecutor established the factual basis with
leading questions. Although the factual basis was established using a “disfavored
format,” the testimony and complaint establish the elements of motor-vehicle theft. See
Raleigh, 778 N.W.2d at 96-97.
The complaint stated that on March 15, 2010, a police officer pulled over a 2001
Buick. A car dealership in Chisago County had previously reported this vehicle stolen.
During the plea hearing, McManus admitted to being in possession of the Buick on
March 15 without the authority or consent from the dealership. Finally, McManus does
not argue that the plea failed to establish an element of the crime but only challenges the
format of the plea. Because the record establishes a sufficient factual basis to support the
conviction, withdrawal is not warranted on this ground.
II.
McManus contends that he has the right to withdraw his plea agreement because
the district court’s 60-day jail sentence violated the parties’ unqualified promise.
Generally, after a court accepts a plea containing an agreement on sentencing, the terms
of the agreement should be fulfilled. State v. Pearson, 479 N.W.2d 401, 405 (Minn. App.
1991), review denied (Minn. Feb. 10, 1992). If a “a plea rests in any significant degree
on a promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.” Brown, 606 N.W.2d at
674.
A court, however, is not required to honor a plea agreement that has been
breached. State v. Rud, 372 N.W.2d 434, 435 (Minn. App. 1985). Further, a defendant
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who breaches a plea agreement after being warned that such a breach would result in a
longer sentence is not entitled to specific performance. Id. (affirming sentence exceeding
sentence provided for in plea agreement when defendant violated plea agreement and had
been warned that violation would result in execution of sentence), review denied (Minn.
Sept. 26, 1985). If an inducement in a plea agreement is not honored, the guilty plea may
be withdrawn. State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998). “In determining
whether a plea agreement was violated, courts look to what the parties to the plea bargain
reasonably understood to be the terms of the agreement.” Brown, 606 N.W.2d at 674
(quotations omitted). Issues involving the interpretation and enforcement of plea
agreements are issues of law that we review de novo. Id.
At the plea hearing, counsel for McManus told the district court that, “The
agreement would be that there would be no further executed jail to be served. So my
client at sentencing would receive credit for whatever time it is, and that would be the
end of the actual jail time to serve.” But, the plea petition language contradicts
McManus’s claim that this was an unqualified promise. The plea petition provided:
I have been told by my attorney and understand:
...
b. If I, defendant, do not cooperate with the Pre-Sentence
Investigation, Chemical Use Assessment, Domestic Violence
Inventory; if I fail to remain law abiding or if I fail to timely
appear for the scheduled Sentencing Hearing, the plea
agreement, including any agreement or cap on time to serve
will be null and void and my plea will be considered a
straight plea and I understand I may be sentenced
accordingly.
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(Emphasis added.) In addition, the district court engaged in the following colloquy with
McManus:
[COURT]: I’ll also find that you admitted sufficient facts to
support the plea but I am going to hold acceptance of the plea
and order a presentence investigation and have you back.
You need to cooperate fully with this, Mr. McManus, we
need to have that investigation in hand prior to your
sentencing. So make sure when the Department of
Corrections contacts you, that you respond. All right.
[MCMANUS]: Yes.
The record silences McManus’s argument that no additional jail time was an
unqualified promise. The record shows that the district court’s acceptance of the plea
agreement was contingent on McManus’s cooperation during the PSI and sentencing.
Not only did McManus not complete the PSI, but he failed to appear at the initial
sentencing hearing. At the rescheduled sentencing hearing, counsel for McManus did not
argue that the imposition of 60 days in jail violated the plea agreement; rather, he argued
for reduced jail time due to McManus’s age and health issues. Here, it is clear that
McManus was required under the plea agreement to cooperate with the PSI and appear at
sentencing.
McManus also claims that he was not “adequately warned of the consequences of
not complet[ing] the PSI.” At the postconviction hearing, McManus’s district court
counsel testified that he discussed with McManus before the plea the “things that [he]
would have to do after the plea, you know, in terms of the PSI.” Likewise, the district
court told McManus that the plea would not be accepted unless he fully cooperated with
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the PSI.1 Thus, these colloquies coupled with the plea petition provided proper notice
regarding McManus’s required cooperation with the PSI. See Oldenburg v. State, 763
N.W.2d 655, 659 (Minn. App. 2009) (holding that appellant had adequate notice of plea
requirements when it was set forth in the plea petition but not discussed at the plea or
sentencing hearings). Accordingly, we conclude that withdrawal of McManus’s guilty
plea is not required.
III.
McManus moved to strike a portion of the state’s brief, claiming the portion is not
supported by facts in the record. “The papers filed in the trial court, the exhibits, and the
transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”
Minn. R. Civ. App. P. 110.01. And “[e]ach statement of a material fact shall be
accompanied by a reference to the record.” Minn. R. Civ. App. P. 128.02, subd. 1(c).
The general rule is that an appellate court may not base its decision on matters outside the
record on appeal, Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988), and we “will strike
references to such matters from the parties’ briefs,” Stageberg v. Stageberg, 695 N.W.2d
609, 613 (Minn. App. 2005), review denied (Minn. July 19, 2005).
An independent review of the record supports McManus’s contention that these
statements concern extra-record material. The record shows that neither McManus’s
counsel nor the state’s prosecuting attorney testified at any of the hearings about the
1
At the sentencing hearing, the district court implicitly accepted McManus’s guilty plea
and entered judgment of conviction based upon McManus’s admissions at the plea
hearing.
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hospital stay referenced in the state’s brief. Because these statements are outside the
record, they are stricken from the state’s brief.
Affirmed; motion granted.
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