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State v. Nicholas

Court of Appeals of Minnesota

February 11, 2019

State of Minnesota, Respondent,
Jesse Lawrence Nicholas, Appellant.

          Traverse County District Court File No. 78-CR-16-263

          Keith Ellison, Attorney General, St. Paul, Minnesota; and Matthew P. Franzese, Traverse County Attorney, Wheaton, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and Jesson, Judge.


         I. Once a valid guilty plea has been "put formally before the court" by a defendant, it has been "entered," and the defendant does not have an absolute right to withdraw it.

         II. The act of scheduling a hearing on an ex parte order for protection (OFP) outside of the statutorily permissible time frame does not automatically cause the OFP to expire; rather, an ex parte OFP expires once the statutorily prescribed time frame runs without a hearing.


          HOOTEN, JUDGE

         Appellant challenges his conviction for violating an OFP, arguing that he had an absolute right to withdraw his guilty plea, that even if he did not have an absolute right, he should have been allowed to withdraw his guilty plea under the fair-and-just standard, and that the district court erred by not granting him an evidentiary hearing. We affirm.


         On December 8, 2016, S.N. obtained an ex parte OFP against her husband, appellant Jesse Nicholas. He was served with the OFP the next day. The OFP forbade Nicholas from having contact with S.N. or from coming within 300 feet of her home. On December 12, Nicholas requested a hearing on the OFP and one was scheduled for December 16. Due to S.N.'s pregnancy and health, the hearing was rescheduled, and the OFP was ultimately dismissed on January 5, 2017.

         On December 21, 2016, S.N. called the police because she saw Nicholas in the area near her home, believed he was violating the OFP, and feared he was going to break into her house. Traverse County charged Nicholas with one count of felony stalking under Minn. Stat. § 609.749, subd. 5(a) (2016), and one count of felony violating an OFP under Minn. Stat. § 518B.01, subd. 14(d)(1) (2016). The violation-of-an-OFP charge was a felony-level offense because Nicholas had previously been convicted of two counts of violating a domestic-abuse no-contact order. On April 27, 2017, Nicholas pleaded guilty to violating the OFP, and the stalking charge was dismissed. The district court deferred accepting the plea until the sentencing hearing and ordered a presentence investigation (PSI).

         The district court held a sentencing hearing on September 20, 2017. The same judge who presided over the plea hearing presided over the sentencing hearing. At the sentencing hearing, Nicholas requested, through his attorney, to withdraw his plea because he was innocent and had only pleaded guilty "because [his attorney] threatened him to do so." The district court acknowledged that it should allow Nicholas to withdraw his plea if it was fair and just to do so but ultimately denied his request. At the plea hearing, the district court had asked Nicholas "has anyone made any threats to you, your friends or your family to get you to do this deal," and he had answered "[n]o, sir." In denying Nicholas's plea-withdrawal motion at the sentencing hearing, the district court explained that, in light of what Nicholas had said under oath at the plea hearing, he did not believe Nicholas's claim that he was threatened by his attorney. When the district court made its decision, Nicholas had not yet testified at the sentencing hearing about any supposed threats. Rather, his attorney had relayed the information to the district court.

         After disposing of the withdrawal motion and proceeding to sentencing, the district court allowed Nicholas to speak. Nicholas explained that he was maintaining his innocence and that he had not meant that his attorney threatened him but rather that he "was being threatened with prison . . . the taking away of-loss of . . . life and liberty." He then agreed with the district court's characterization that he felt "coerced by the situation because [he was] facing some bad consequences." The district court then formally accepted Nicholas's guilty plea on the violation-of-an-OFP charge, adjudicated him guilty, dismissed the stalking charge, and imposed a sentence. This appeal follows.


         I. Did Nicholas have an absolute right to withdraw his guilty plea prior to it ...

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