Traverse County District Court File No. 78-CR-16-263
Ellison, Attorney General, St. Paul, Minnesota; and Matthew
P. Franzese, Traverse County Attorney, Wheaton, Minnesota
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.
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
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.
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.
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.
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).
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.
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
Nicholas have an absolute right to withdraw his guilty plea
prior to it ...