State v. Ford
| Decision Date | 26 December 1986 |
| Docket Number | No. CX-85-719,CX-85-719 |
| Citation | 397 N.W.2d 875 |
| Parties | 36 Ed. Law Rep. 910 STATE of Minnesota, Appellant, v. James A. FORD, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Defendant's acts as a public school teacher and administrator in giving favors forbidden by school rules to minor female students and obtaining from them consensual sexual contact were acts in excess of his lawful authority or which he knew he was forbidden by law to do in his official capacity within the meaning of Minn.Stat. § 609.43(2) (1984). The trial court did not err in denying the motion to dismiss the complaint for lack of probable cause.
2. The trial court did not err in denying defendant's motion to withdraw his plea of guilty.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, R. Kathleen Morris, Scott County Atty., Shakopee, for appellant.
Phillip Gainsley, Minneapolis, for respondent.
Heard, considered and decided by the court en banc.
James Ford was convicted on pleas of guilty of two counts of misconduct of a public officer or employee in violation of Minn.Stat. § 609.43(2) (1984). The court of appeals held that the acts to which Ford pleaded guilty did not constitute misconduct within the meaning of section 609.43(2) and reversed the judgment of conviction. We reverse the court of appeals on this issue, affirm the order of the trial court denying Ford's motion to withdraw his guilty plea and reinstate the judgment of conviction.
James Ford was assistant principal and teacher of history at Shakopee High School during the years 1980-84. His duties included student discipline, curriculum development, staff supervision and serving as high school speech coach. He was charged in May, 1984, by complaint with 10 counts of misconduct by a public officer or employee, Minn.Stat. § 609.43(2) and (3), gross misdemeanors; one count of sodomy, Minn.Stat. § 609.293, subd. 5, a gross misdemeanor; and one count of fornication, Minn.Stat. § 609.34, a misdemeanor. The complaint alleged in considerable detail that, during the course of his employment, Ford granted special favors and privileges to four specific minor female students at Shakopee High School and received from those students acceptance of his sexual advances and sexual contact, including hugging, kissing and fondling and, from one of the students, oral sex and sexual intercourse. It was alleged specifically that, in violation of school rules and regulations, Ford permitted these students to smoke in his office on school grounds, to avoid certain physical education requirements, to miss class and leave school during school hours for unauthorized purposes and to obtain access to his office after school hours. For one student he wrote and typed a term paper. The facts alleged tended to show, the state claims, that Ford cultivated special relationships with the female students which developed into consensual sexual relationships when they reached the age of 16. 1
The state gave notice of intent to introduce evidence of additional offenses based on similar conduct in two other counties in 1975-76. At the omnibus hearing on July 27, 1984, Ford moved for a change of venue and for suppression of the Spreigl evidence. He also moved for dismissal of the complaint on the ground that there was insufficient evidence shown of probable cause to believe he had committed the offenses charged. On August 29, 1984, the trial court granted a change of venue, refused to suppress the Spreigl evidence and denied the motion to dismiss the charges for lack of probable cause. The trial court found that the conduct alleged in the complaint was sufficient to show probable cause that the crimes charged under section 609.43(2) and (3) had been committed by Ford.
After the motion to dismiss had been denied and the case set for trial, Ford and his attorney negotiated a plea agreement with the state. Ford appeared in court at the time set for trial and entered a plea of guilty pursuant to that agreement. The plea agreement was read into the record by the state's attorney with the concurrence of Ford and his attorney. Ford would plead guilty to count II and count VI and would submit a factual basis in which he admitted sexual contact with J.A.S. and D.B., the students named in these two charges, and that he had provided unauthorized absences for the two in his official capacity. The state, for its part, would recommend no further incarceration if Ford cooperated fully and completely with the pre-sentence investigation (P.S.I.) and any recommended therapy and would dismiss the 10 remaining charges at the time of sentencing. The trial court conducted a lengthy preplea examination of Ford and told him the court was not bound by promises it did not make, that sentencing was for the court alone to decide. Upon being assured that Ford understood, the court accepted the pleas of guilty.
On the day of sentencing the state's attorney told the court in chambers he could not in good conscience make the promised recommendation for no further incarceration because Ford had not cooperated with the P.S.I. in that he denied his guilt so that the therapist could not come up with a treatment program. The court said the plea agreement stood as accepted on the record and that the state's promised recommendation of no further incarceration would stand because the defendant had cooperated. No other or different recommendations were made in open court. Ford's attorney did not object nor move for a continuance or plea withdrawal but argued that the conduct to which Ford had pleaded guilty was not criminal and should not be dealt with by incarceration.
The court pronounced judgment of conviction and sentence of two year's probation with the first six months probation spent in jail on each charge. The sentences were ordered to run consecutively.
Six days later, on April 16, 1985, Ford moved to withdraw his plea of guilty under Rule 15.05, Minnesota Rules of Criminal Procedure. The court denied the motion.
The court of appeals reversed the convictions, holding that the trial court did not have facts presented to it sufficient for the criminal activity under Minn.Stat. § 609.43(2), State v. Ford, 377 N.W.2d 62, 68 (Minn.Ct.App.1985). This court granted the state's petition for review.
This case involves a judgment of conviction entered on a plea of guilty to two counts of misconduct of a public officer or employee in violation of Minn.Stat. § 609.43(2). A guilty plea by a counseled defendant has traditionally operated, in Minnesota and in other jurisdictions, as a waiver of all non-jurisdictional defects arising prior to the entry of the plea. State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980). Under this rule a defendant may not enter a conditional plea of guilty which reserves the right to appeal the denial of a motion to suppress evidence or other pretrial order. Id.; Minn.R.Crim.P. 14 comment.
We noted the procedure in Lothenbach by which a defendant wishing to obtain review of pretrial orders might do so without going to trial. The defendant could plead not guilty, stipulate the facts, waive the jury trial and, if there is a finding of guilty, appeal the judgment of conviction. Lothenbach, 296 N.W.2d at 857-58. Although that procedure was not followed in this case, the circumstances are similar to those in Lothenbach. We will do here as we did in Lothenbach and treat this as an appeal from a finding of guilty based on stipulated facts in order to reach the issue decided by the court of appeals which arose from a pretrial, preplea order denying Ford's motion to dismiss.
Did the trial court err in denying the motion to dismiss the charges of misconduct of a public officer or employee for lack of probable cause? The trial court was satisfied that "the Complaint, together with the attached reports, et cetera" did show probable cause to believe that the crimes alleged were committed. The court of appeals reversed the order only insofar as it found probable cause for counts II and VI, charging violations of section 609.43(2). The court of appeals held there were insufficient facts presented to the trial court to support a finding of criminal activity under section 609.43(2). We do not agree.
The legislature has addressed the abuse of power by public officials and employees in the misconduct statute. 2 Section 609.43(2) sets forth the misconduct to which Ford pleaded guilty in counts II and VI:
A public officer or employee who does any of the following, for which no other sentence is specifically provided by law, may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both:
* * *
* * *
(2) In his capacity as such officer or employee, does an act which he knows is in excess of his lawful authority or which he knows he is forbidden by law to do in his official capacity; * * *.
The court of appeals used the proper three-part test in analyzing charges under this statute: (1) whether the act charged was done by a public officer or employee; (2) whether the act was committed while the defendant was acting in his official capacity as a public officer or employee; and (3) whether the act was either forbidden by law or in excess of his lawful authority. State v. Ford, 377 N.W.2d 62, 67 (Minn.Ct.App.1985). Though Ford was unquestionably a public employee as assistant principal and teacher in a public high school, the court of appeals found his conduct to have been done in a private capacity rather than in his official capacity because it consisted of consensual sexual relationships with persons of the age of consent. Id.
Ford raises the same argument here. He does not deny that he is a public employee but argues that the acts, if done, were done in a purely private capacity and were legal because done with persons of the age of consent. We must then determine whether the acts were committed while Ford was acting in his official...
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