Markham v. State, A14-1093

CourtCourt of Appeals of Minnesota
Writing for the CourtReilly, Judge
Decision Date20 January 2015
PartiesOji Konata Markham, petitioner, Appellant, v. State of Minnesota, Respondent.
Docket NumberA14-1093

Oji Konata Markham, petitioner, Appellant,
v.
State of Minnesota, Respondent.

A14-1093

STATE OF MINNESOTA IN COURT OF APPEALS

January 20, 2015


This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

Affirmed in part, reversed in part, and remanded
Reilly, Judge

Hennepin County District Court
File Nos. 27-CR-10-25000, 27-CR-11-8107

Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, III, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Chutich, Presiding Judge; Stauber, Judge; and Reilly, Judge.

UNPUBLISHED OPINION

REILLY, Judge

Oji Konata Markham pleaded guilty to a failure to register as a predatory offender charge and a first-degree burglary charge. Markham later moved to withdraw both guilty

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pleas, arguing that he was not required to register as a predatory offender in Minnesota and that the factual basis for his burglary plea was insufficient to establish the independent-crime element of first-degree burglary. We conclude that Markham's guilty plea for failure to register is invalid but that the factual basis of his burglary plea is sufficient. Therefore, we affirm in part, reverse in part, and remand.

FACTS

In March 2014, Markham petitioned for postconviction relief, requesting to withdraw his guilty pleas for failure to register as a predatory offender and first-degree burglary.

Failure to Register Offense & Plea

In 1994, the State of Indiana charged Markham with child molestation. The probable cause affidavit stated that, on April 22, 1994, A.S., who was 13 years old at the time of the offense, along with three other girls, were at an apartment with three young men, including Markham. A.S. stated that Markham took her into a bedroom and penetrated her vagina with his penis without her permission. Another girl who was with A.S. at the time corroborated that Markham and A.S. engaged in sexual intercourse in a bedroom. Markham was 19 years old at the time of the offense.

The State of Indiana initially charged Markham for "being sixteen years of age or older, [and] perform[ing] or submit[ing] to sexual intercourse with [A.S.], a child twelve years of age or older but under sixteen years of age," under Indiana Code section 35-42-4-3 (1993). The charge was then amended to "Sexual Battery (D)," which stated that Markham, "a person who, with intent to arouse or satisfy [his] own sexual desires or the

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sexual desires of [A.S.], touched [A.S.] when [A.S.] was compelled to submit to said touching by force or the imminent threat of force." Markham pleaded guilty to the sexual battery charge in addition to another charge. The stipulated factual basis for the plea stated that on April 27, 1994, in Lake County, Indiana, Markham, with the intent to arouse his sexual desires, touched A.S., and that Markham compelled the touching by the use of force.

At some point, Markham moved to Minnesota and was informed that he was required to register as a predatory offender due to his conviction in Indiana. On June 2, 2010, the state charged Markham with failure to register as a predatory offender, in violation of Minn. Stat. § 243.166, subds. 5(a), 5(b), 1b, 5a, 10 (2008), for conduct occurring between March 22-June 2, 2010. In November 2010, Markham pleaded guilty to the failure to register charge and was released pending sentencing.

First-Degree Burglary Offense

While the sentencing for the failure to register charge was pending, the state charged Markham with first-degree burglary. On March 20, 2011, T.T. called 911 to report a break in. When officers arrived at T.T.'s residence, Markham was inside the house with T.T., who then came running out of the house yelling that Markham had a gun. T.T. informed officers that Markham was recently served with an order for protection (OFP) precluding contact with her, and he was upset with her. Officers observed that the screen to a rear window of the residence was removed and the window was opened. Officers could not locate the gun.

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The state charged Markham with one count of first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(a) (2010) (occupied dwelling). On July 11, 2011, the state amended the complaint and added additional counts of first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(c) (2010) (assault of a person within the building), and prohibited person in possession of a firearm, in violation of Minn. Stat. § 624.713, subds. 1(2), 2(b) (2010). Markham pleaded guilty to the initial first-degree burglary charge (occupied dwelling) on July 12, 2011, in exchange for dismissal of the charges in the amended complaint and for a 60-month prison sentence. The district court sentenced Markham to 60 months in prison for burglary and 36 months in prison for failure to register, to be served concurrently.

Postconviction Proceedings

On October 25, 2012, Markham filed a pro se petition for postconviction relief, arguing that his criminal history score was incorrectly calculated. The district court denied his petition and, on appeal, we reversed and remanded the case due to a violation of Markham's right to counsel. Markham v. State, No. A13-0141 (Minn. App. Nov. 6, 2013) (order op.).

On March 3, 2014, counsel for Markham filed a petition for postconviction relief. Markham argued that the failure to register plea was not valid because he was not required to register as a predatory offender in Minnesota, and that his burglary plea was insufficient to establish guilt. The district court denied Markham relief, finding that the sexual battery conviction would be chargeable in Minnesota as fourth-degree sexual conduct or attempted fourth-degree sexual conduct. The district court also denied

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Markham's motion to withdraw his burglary guilty plea, finding that Markham entered the victim's home without her consent and had contact with her, in violation of the no-contact part of the OFP.

Markham appeals both convictions.

DECISION

Markham contends that his guilty pleas are inaccurate and therefore invalid, and that the pleas "must be withdrawn." This court reviews a district court's ultimate decision to deny postconviction relief for an abuse of discretion. State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004). Because the validity of a guilty plea is a question of law, we apply de novo review. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).

A defendant does not have an absolute right to withdraw a guilty plea. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). The district court must allow a defendant to withdraw a guilty plea at any time if "withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. Manifest injustice exists when a guilty plea is invalid. Theis, 742 N.W.2d at 646. For a guilty plea to be valid, it "must be accurate, voluntary and intelligent." State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). The defendant bears the burden of establishing that the plea was invalid. Raleigh, 778 N.W.2d at 94.

I. Failure to Register Guilty Plea

Markham maintains that his guilty plea was inaccurate because his Indiana conviction is not equivalent to Minnesota's fourth-degree criminal sexual conduct or attempted fourth-degree criminal sexual conduct conviction. "The accuracy requirement

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protects a defendant from pleading guilty to a more serious offense than that for which he could be convicted if he insisted on his right to trial." Id. To be accurate, a plea establishes a proper factual basis, which is adequate "if the record contains sufficient evidence to support the conviction." Id.

Under the Minnesota predatory offender registration statute, a person with a Minnesota conviction is required to register as a predatory offender if:

(1) the person was charged with . . . a felony violation of or attempt to violate, or aiding, abetting, or conspiracy to commit, any of the following, and convicted of . . . that offense or another offense arising out of the same set of circumstances:
(i) murder under section 609.185, clause (2);
(ii)
...

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