Shepersky v. State, A07-1525 (Minn. App. 8/26/2008)
| Decision Date | 26 August 2008 |
| Docket Number | A07-1525. |
| Parties | Michael Shepersky, petitioner, Appellant, v. State of Minnesota, Respondent. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Lake St. Louis County, File Nos. CR-05-219, K8-04-504, File No. K9-05-600001.
Lawrence Hammerling, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, MN (for appellant).
Lori Swanson, Attorney General, St. Paul, MN.
Russell H. Conrow, Lake County Attorney, Bruce L. Anderson, Assistant County Attorney, Lake County Courthouse, MN and Melanie S. Ford, St. Louis County Attorney, St. Louis County Courthouse, Duluth, MN (for respondent).
Considered and decided by Halbrooks, Presiding Judge; Willis, Judge; and Johnson, Judge.
UNPUBLISHED OPINION
In January 2006, Michael Shepersky pleaded guilty to four offenses arising from four separate incidents occurring in St. Louis County and Lake County. In February 2007, Shepersky filed a petition for postconviction relief in which he sought to withdraw his guilty plea. The district court denied the postconviction petition. We conclude that the district court did not abuse its discretion and, therefore, affirm.
At the time of his guilty plea, Shepersky was charged with multiple offenses arising from five separate incidents occurring in northeastern Minnesota in late 2004 and early 2005. Shepersky pleaded guilty to four of the charged offenses in a single plea proceeding pursuant to a plea agreement that was intended to resolve all then-pending charges.
The four offenses to which Shepersky pleaded guilty arose from four incidents. First, Shepersky was charged in St. Louis County with second-degree assault, making terroristic threats, and first-degree criminal damage to property for two separate incidents. The complaint alleged that on Christmas Eve in 2004, Shepersky went to the residence of A.T. and threatened her at gunpoint, saying that J.S., who was a friend of A.T., "better show up next time or someone will die or be killed."
Second, Shepersky was charged in Lake County for an incident occurring on Christmas Day in 2004. According to the complaint, Shepersky went to J.S.'s home threatened his life, and fired one or more shots from a gun. For this incident, Shepersky was charged with unlawful possession of a firearm, making terroristic threats, and second-degree assault.
Third, Shepersky was charged with assaulting a probation officer on March 28, 2005, one block from the Lake County Courthouse. The complaint alleged that Shepersky bumped the probation officer in the chest and made a threatening statement about meeting him again in the future.
Fourth, Shepersky was charged with first-degree driving while impaired (DWI) on June 18, 2005, in Lake County. The complaint alleged that his alcohol concentration was.19 and that he had three prior DWI convictions.
The district court appointed Steven P. Coz to be Shepersky's attorney with respect to all of the above-described charges. In a March 2005 letter to Shepersky, Coz detailed ongoing plea negotiations in which Coz was seeking to reduce Shepersky's sentence from eight to three years in exchange for a guilty plea. Coz informed Shepersky that, although the state was willing to reduce its request to only six years, the state was likely to bring additional charges and seek an enhanced sentence if Shepersky did not accept the offer. Coz urged Shepersky to consider whether the jury would believe him if the case went to trial.
At a March 28, 2005, review hearing, Shepersky complained to the district court that Coz was not adequately defending him. The district court continued the matter so that Shepersky could consult with the Chief Public Defender for the district, Fred Friedman.
In a letter to Shepersky dated April 5, 2005, Coz acknowledged that Shepersky was seeking substitute counsel and noted that the general policy of the public defender's office in the district was to not give clients a different public defender simply because they were dissatisfied. Coz also stated that he would continue to "zealously represent" Shepersky but would not tolerate Shepersky's abuse of him or his staff. Shepersky sent an e-mail message to Friedman, stating, "Mr. Coz was refusing to defend me, and . . . he only recommends to me that I make a deal with the state." Friedman responded to Shepersky by declining to make a substitution and assuring Shepersky that Coz would serve him well.
At an April 18, 2005, omnibus hearing, Coz informed the district court that the public defender's office did not intend to provide a new attorney for Shepersky and asked the court to clarify on the record whether he would continue as Shepersky's counsel. Addressing Shepersky, the court stated that, in light of Shepersky's communications with Coz and Friedman, "your choices [are] to try your own cases, to have Mr. Coz represent you, or to hire counsel on your own." The district court then asked Shepersky if he wanted Coz to remain as his attorney; Shepersky answered, "Yes."
On January 26, 2006, Shepersky entered guilty pleas to all charges pending against him in Lake County and St. Louis County in a "global settlement." Some charges were resolved by pleas entered pursuant to North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 167-68 (1970), and State v. Goulette, 258 N.W.2d 758 (Minn. 1977).
On February 1, 2006, two days before his scheduled sentencing hearing, Shepersky informed Coz that he wanted to withdraw his guilty pleas. Coz alerted the district court of Shepersky's wishes. On February 3, 2006, Coz explained to the district court that Shepersky had accused Coz of coercing him into entering the guilty pleas and that he would not meet with Shepersky alone for fear that Shepersky would make further similar accusations. Coz indicated that Friedman agreed to meet with him and Shepersky to determine how Shepersky should proceed. The district court continued the matter for six days. On February 9, 2006, Shepersky met with Coz and Friedman prior to the rescheduled sentencing hearing. At the hearing, the district court explained to Shepersky that he could either proceed with sentencing or withdraw his plea. After being given a few minutes to consider the matter, Shepersky stated that he would proceed with the plea proceedings because he trusted Coz. He also apologized to Coz for falsely accusing him of coercing the plea. Shepersky was sentenced, pursuant to the plea agreement, to 180 months of imprisonment.
In February 2007, approximately one year after the sentencing hearing, Shepersky filed a postconviction petition in which he sought to withdraw his guilty plea on the ground that it was not voluntarily entered. The district court issued an order denying the petition. Shepersky appeals.
A district court's decision on a postconviction petition will not be disturbed absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). Likewise, a reviewing court will reverse the district court's denial of a request to permit withdrawal of a guilty plea only if the district court abused its discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).
A defendant does not have an absolute right to withdraw a guilty plea. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007); Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). But rule 15.05 of the Minnesota Rules of Criminal Procedure provides that a district court must permit a defendant to withdraw a guilty plea upon a showing that withdrawal is necessary to correct "manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. Manifest injustice exists when a guilty plea was not "accurate, voluntary, and intelligent." Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).
The accuracy requirement protects the defendant from pleading guilty to a more serious offense than he or she could be properly convicted of at trial. The voluntariness requirement insures that the guilty plea is not in response to improper pressures or inducements; and the intelligent requirement insures that the defendant understands the charges, his or her rights under the law, and the consequences of pleading guilty.
Considering the brief filed by Shepersky's appointed appellate counsel as well as Shepersky's pro se supplemental brief, Shepersky challenges each of the three requirements for a valid guilty plea. We will address each in turn.
Through counsel, Shepersky argues that his guilty plea was not voluntary. He makes two arguments to that effect. First, he argues that he was coerced into pleading guilty because a substitute attorney was not appointed. Second, he argues that his guilty plea was induced by a promise of leniency in criminal charges against his wife.
Shepersky argues that substitute counsel should have been appointed at either of two stages of the district court proceedings. First, he argues that he should have been given a new attorney at or after the April 18, 2005, hearing, when it was apparent that the public defender's office did not intend to replace Coz, which prompted the court to inform Shepersky that his options were "to try your own cases, to have Mr. Coz represent you, or to hire counsel on your own." This court already has considered and rejected this argument by Shepersky. On appeal from his conviction on the DWI charge, this court concluded that Shepersky was adequately represented at that stage of district court proceedings and that there were no exceptional circumstances warranting the appointment of substitute counsel. State v. Shepersky, ...
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