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State v. Pigeon

Court of Appeals of Minnesota

July 22, 2013

State of Minnesota, Respondent,
v.
Billy Ray Pigeon, Appellant.

UNPUBLISHED OPINION

Cass County District Court File No. 11-CR-12-59

Lori Swanson, Attorney General, St. Paul, Minnesota; and Christopher J. Strandlie, Cass County Attorney, Barbara J. Harrington, Assistant County Attorney, Walker, Minnesota (for respondent)

David W. Merchant, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Kirk, Judge.

KIRK, Judge

On appeal from his conviction of stalking, appellant argues that the district court erred by denying his motion to withdraw his guilty plea. We affirm.

FACTS

On January 10, 2012, respondent State of Minnesota charged appellant Billy Ray Pigeon with stalking—third or subsequent violation in 10 years, stalking—pattern of stalking conduct, terroristic threats, domestic abuse, and violation of a no contact order. The complaint alleged that, on January 7, appellant spoke to his ex-girlfriend, M.R.H., on the phone in violation of a Domestic Abuse No Contact Order (DANCO) and an order for protection (OFP). The complaint alleged that, during their conversation, appellant asked M.R.H. if he could claim their children on his taxes, and she replied that he could not. In response, appellant threatened to dismember M.R.H. and "scatter pieces of her body next to where their parents are buried." The complaint alleged that M.R.H. "believes [appellant] wants to kill her and that he is capable of doing so." M.R.H. "was visibly distraught and crying" when she reported the incident to a police officer and she told the officer that she was afraid of appellant.

The complaint further alleged that appellant has convictions for five offenses where M.R.H. individually or M.R.H. and her children were the victims. These convictions include: (1) an August 2011 conviction for violation of an OFP that was granted on behalf of M.R.H. and her children with two or more violations within 10 years; (2) a July 2011 conviction of domestic assault for assaulting M.R.H.'s daughter, D.H.; (3) a January 2009 conviction of domestic abuse—violation of an OFP that was granted on behalf of M.R.H.; (4) an April 2003 conviction of fifth-degree domestic assault for assaulting M.R.H.; and (5) a July 2001 conviction of fifth-degree domestic assault for assaulting M.R.H. The complaint alleged that on August 11, 2010, M.R.H. obtained an OFP against appellant on behalf of herself and her children. The OFP remained in effect until October 10, 2011. In addition, appellant was served with a DANCO on July 28, 2011, and ordered not to have any contact with M.R.H. or her daughter, D.H. The DANCO is in effect until July 18, 2016.

On February 23, 2012, the parties reported to the district court that they had reached a plea agreement. Appellant pleaded guilty to the charge of stalking—third or subsequent violation within 10 years. Appellant's counsel questioned appellant regarding the factual basis for his plea, and appellant admitted that he spoke with M.R.H. on the phone on January 7, and that he knew he was not supposed to talk to her. Appellant also admitted that M.R.H. became upset during the conversation. Appellant's counsel then asked appellant, "Did you manifest a threat to [M.R.H.] at that time?" Appellant replied, "No, I didn't." At that point in the colloquy, the district court questioned the sufficiency of appellant's testimony. Appellant's counsel further questioned appellant:

[APPELLANT'S COUNSEL]: [D]o you believe that it's possible that [M.R.H.] was threatened by anything that you had said on the phone that day?
[APPELLANT]: It's possible if she was drinking.
[APPELLANT'S COUNSEL]: Do you believe that she is scared ...

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