                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0066

                          Robert Earl Pittman, Jr., petitioner,
                                      Appellant,

                                          vs.

                                  State of Minnesota,
                                      Respondent

                                Filed August 25, 2014
                                      Affirmed
                                    Worke, Judge

                             Martin County District Court
                              File No. 46-CR-09-1318

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica Surges Shacka,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Terry Viesselman, Martin County Attorney, Michael D. Trushenski, Assistant County
Attorney, Fairmont, Minnesota (for respondent)

      Considered and decided by Worke, Presiding Judge; Schellhas, Judge; and

Rodenberg, Judge.
                           UNPUBLISHED OPINION

WORKE, Judge

          Appellant challenges the district court’s denial of his motion to withdraw his

guilty plea, arguing that the factual basis was established by leading questions and was

insufficient to support his first-degree-assault conviction. We affirm.

                                       DECISION

          On July 25, 2011, appellant Robert Earl Pittman, Jr. pleaded guilty to first-degree

assault (great bodily harm) and the state dismissed counts of third-degree assault, and

malicious punishment of a child. The state agreed to not seek an aggravated sentence,

and the district court sentenced Pittman to the presumptive sentence of 98 months in

prison.

          On August 21, 2013, Pittman filed a petition for postconviction relief, seeking to

withdraw his guilty plea. The district court denied Pittman’s motion. When reviewing a

district court’s denial of a petition for postconviction relief, this court reviews issues of

law de novo and issues of fact for sufficiency of the evidence. Leake v. State, 737

N.W.2d 531, 535 (Minn. 2007). The validity of a guilty plea is an issue of law, which we

review de novo. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).

          Once a guilty plea is entered a defendant has no absolute right to withdraw it.

Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). In a postconviction petition, a

petitioner must allege and prove that plea withdrawal is necessary to correct a manifest

injustice. Minn. R. Crim. P. 15.05, subd. 1 (stating that district court must permit

withdrawal of a guilty plea when it “is necessary to correct a manifest injustice”). A


                                               2
manifest injustice occurs if a guilty plea is invalid. State v. Theis, 742 N.W.2d 643, 646

(Minn. 2007). A guilty plea is invalid if it is not voluntary, accurate, and intelligent.

Perkins, 559 N.W.2d at 688.

       Pittman argues that the facts elicited at the plea hearing were based on leading

questions and did not establish the elements of first-degree assault, and therefore, his plea

was not accurate. The accuracy requirement serves to protect defendants from pleading

guilty to crimes that are more serious than the crimes they could be convicted of at trial.

Lussier v. State, 821 N.W.2d 581, 588 (Minn. 2012). “A proper factual basis must be

established for a guilty plea to be accurate.” Theis, 742 N.W.2d at 647 (quotation

omitted). This requirement is met when the record contains sufficient evidence that

“would support a jury verdict” that the defendant “is guilty of at least as great a crime as

that to which he pled guilty.” Lussier, 821 N.W.2d at 588-89 (quotation omitted). But

when the defendant makes a statement on the record that negates an essential element of

a charge, the factual basis is inadequate and the plea is invalid.    State v. Iverson, 664

N.W.2d 346, 350 (Minn. 2003). The defendant bears the burden to show his plea was

inaccurate. Raleigh, 778 N.W.2d at 94.

       Although there is no required method to put the facts on the record, district courts

should be wary of establishing a factual basis by leading questions from counsel. State v.

Ecker, 524 N.W.2d 712, 716 (Minn. 1994). The preferred method to ensure a plea’s

accuracy is to have the defendant explain the event in his own words. Id. However, as

noted in Raleigh, a factual basis may be sufficient even when the procedure used is the

“disfavored format” of leading questions. 778 N.W.2d at 96.


                                             3
         Here, after acknowledging his rights and waiving them, Pittman provided a factual

basis for his plea with the prosecutor.

                Q:    Mr. Pittman, back on November 20, 2009, in Fairmont,
                      Martin County, Minnesota, you were temporarily
                      taking care of a small child named [C.T.]1; is that
                      right?
                A:    Yes, sir.
                Q:    And the child’s date of birth was April 10, 2009?
                A:    Yes.
                Q:    And during the course of the time that you were taking
                      care of that child, you picked up the child in a manner
                      that caused the child harm; is that right?
                A:    Yes, sir.
                Q:    [Y]ou indicated to the police back then you picked
                      up the child, grabbed too fast and set the child down
                      too fast?
                A:    Yes, sir.
                Q:    And you understand that as a result of the manner in
                      which you did that, the child suffered severe injury?
                A:    Yes, sir.
                Q:    He had some head injury and some brain damage; you
                      understand that?
                A:    Yes, sir.
                Q:    And you’re pleading guilty today to take the benefit of
                      the plea bargain agreement and you understand that if
                      you went to trial there was sufficient evidence to
                      convict you of an assault in the first degree charge?
                A:    Yes, sir.

         Pittman also acknowledged that the child’s injuries are permanent. Although

Pittman was asked leading questions, the factual basis sufficiently establishes the

accuracy of Pittman’s plea.     See id. at 94 (stating that a petitioner may not withdraw a

plea “simply because the [district] court failed to elicit proper responses if the record

contains sufficient evidence to support the conviction”). Pittman agreed that he “picked


1
    At the time, C.T. was Pittman’s seven-month-old step-son.

                                             4
up the child, grabbed too fast and set the child down too fast,” causing the baby severe

injury—“brain damage.” This record supports that the factual basis for Pittman’s guilty

plea was accurate despite the use of leading questions.2

        Pittman argues that he never admitted to “possessing the requisite intent to

commit first-degree assault.” A person who “assaults another and inflicts great bodily

harm” is guilty of first-degree assault. Minn. Stat. § 609.221, subd. 1 (2008). In State v.

Fleck, the supreme court held that an assault-harm offense is a general-intent crime. 810

N.W.2d 303, 309-10 (Minn. 2012). Our supreme court stated:

              The forbidden conduct is a physical act, which results in
              bodily harm upon another. Although the definition of assault-
              harm requires the State to prove that the defendant intended
              to do the physical act, nothing in the definition requires proof
              that the defendant meant to violate the law or cause a
              particular result.

Id. at 309.

       Pittman’s physical acts of “pick[ing] up the child, grabb[ing] too fast and set[ting]

the child down too fast,” resulted in bodily harm to the baby. Pittman’s physical acts

were the “forbidden conduct,” regardless of his intent. Because the state did not need to

establish that Pittman meant to cause the baby severe injury, the factual basis for his



2
   The facts underlying this case were well substantiated. The child suffered egregious
injury and substantial bodily harm as a result of Pittman’s actions. We urge the district
courts to ensure that a defendant affirmatively acknowledges sufficient detail in the facts
supporting a plea to avoid later claims, such as here, when an appellant seeks to withdraw
his plea.




                                             5
guilty plea was accurate.       The district court did not err in denying Pittman’s

postconviction petition to withdraw his guilty plea.

       Affirmed.




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