State v. Vieburg

• Decision Date: 21 April 1987
• Docket Number: No. C8-86-1779,C8-86-1779
• Citation: 404 N.W.2d 312
• Parties: STATE of Minnesota, Respondent, v. Timothy Jerome VIEBURG, Appellant.
• Court: Minnesota Court of Appeals

Page 312

404 N.W.2d 312

STATE of Minnesota, Respondent, v. Timothy Jerome VIEBURG, Appellant.

No. C8-86-1779.

Court of Appeals of Minnesota.

April 21, 1987.

Syllabus by the Court

The trial court erred in denying defendant's request to withdraw a guilty plea entered without the assistance or valid waiver of counsel and without a factual basis for the plea.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, for respondent.

John R. Praetorius, Minneapolis, for City of Edina.

Sherman Bergstein, Minneapolis, for appellant.

Heard, considered and decided by LANSING, P.J., and WOZNIAK and NIERENGARTEN, JJ.

OPINION

LANSING, Judge.

Appellant Timothy Vieburg appeals from the trial court's denial of his motion to withdraw a guilty plea. We reverse.

FACTS

Timothy Vieburg was charged with driving after suspension, driving without insurance and speeding, after an incident on June 15, 1983. He failed to appear at a continued arraignment, and a bench warrant was issued. He was arrested approximately two years later when he returned to Minnesota after military service.

On March 6, 1986, Vieburg appeared in Hennepin County court. He was asked if he wanted to answer the charges and replied, "yes." He was arraigned and entered a guilty plea to driving after suspension. Although the prosecutor for the City of Edina was not present, the other charges were dismissed. The court asked him why he was driving, and he answered that he did not recall the incident. The court imposed a sentence of $200 or 90 days and 90 days in the workhouse with 80 days suspended on condition that Vieburg not drive without a valid license. Vieburg apparently served the ten days. Vieburg was not represented by counsel in these proceedings.

On September 18, 1986, Vieburg was again arrested for driving after suspension of his driving privileges. He pled not guilty and requested a jury trial. A revocation hearing was scheduled before the judge who had suspended the 80 days. Vieburg appeared with counsel, who moved to withdraw the March 6 guilty plea because there had been no advisory or inquiry on Vieburg's rights, particularly his right to counsel, and there was no factual basis to support the plea. The trial court denied the request as untimely and summarily revoked Vieburg's suspended sentence, resulting in this appeal.

ISSUE

Did the trial court err in denying appellant's motion to withdraw his plea of guilty?

ANALYSIS

The record shows that at the time Vieburg pled guilty, the trial court made no inquiry to determine if he understood the place, time and nature of the charged offense; the extent of possible penalties; the right to counsel and whether he could afford counsel; and his trial rights and whether he waived those rights.

The trial court should not accept a defendant's plea of guilty without first ascertaining on the record, that he understands the nature and the elements of the crime to which he pleads guilty and that he is informed of the fundamental rights of a defendant who elects to plead not guilty and stand trial.

State v. Johnston, 279 Minn. 209, 212, 156 N.W.2d 218, 220 (1968). There are requirements which must be met before the court accepts a plea of guilty. Minn.R.Crim.P. 15.02.

Minn.R.Crim.P. 15.05, subd. 1, provides:

The court shall allow a defendant to withdraw his plea of guilty upon a timely motion and prove to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. Such a motion is not barred solely because it is made after sentence. If a defendant is allowed to withdraw his plea after sentence, the court shall set aside the judgment and the plea.

An accused has the right to withdraw his plea of guilty upon establishing a denial of his right to counsel. McMann v. Richardson, 397 U.S. 759, 767, 90 S.Ct. 1441, 1446, 25 L.Ed.2d 763 (1970); State v. Waldron, 273 Minn. 57, 139 N.W.2d 785 (1966); see State v. Seebold, 280 Minn. 241, 246, 158 N.W.2d 854, 857 (1968); Reiff v. State, 41 Wis.2d 369, 164 N.W.2d 249 (1969). This conforms with A.B.A. standards. See ABA Standards Relating to Pleas of Guilty (Approved Draft, 1968), Sec. 2.1.

There is no indication on the record that Vieburg was ever advised of his right to counsel. Not only must a defendant be informed of his right to counsel before pleading guilty, he must make a knowing and intelligent waiver of that right on the record. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1973). We cannot presume that Vieburg was adequately advised and understood his rights. See State v. Nordstrom, 331 N.W.2d 901, 904 (Minn.1983).

In addition, there must be sufficient facts on the record to support a conclusion that defendant's conduct falls within the charge to which he pleads guilty. Kelsey v. State, 298 Minn. 531, 532, 214 N.W.2d 236, 237 (1974). The trial court must determine whether there is a factual basis for the plea. Minn.R.Crim.P. 15.02. Here, the prosecutor was not present to provide a basis. When the court asked Vieburg, "Do...