Once again, it's not enough for the defendant to say he is proceeding without counsel. He must be advised of his right to counsel and waive that right. (State v. Vieburg, 404 N.W.2d/span> 312, 314 (Minn. App. 1987.)
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, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (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), § 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).
Being advised of Miranda rights after an arrest is not the same thing as being advised of the right to counsel before pleading guilty.
Rule 15.05, the Minnesota rule on plea withdrawal states:
The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof 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 a plea after sentence, the court shall set aside the judgment and the plea.
MN law holds a manifest injustice occurs when a plea is not accurate, voluntary or intelligent. The intelligent requirement is the operative one here -- it insures that the defendant understands the charges, the consequences and his rights under the law. One of those rights is the right to be represented by counsel. Without a finding he understood that right and was waiving it, the plea fails to meet the "intelligent" requirement.
That he waited two months to sign the plea form, negotiated it himself or stated he was not factually innocent don't cure the defect.
MN Rule 15.02 requires the Court, prior to accepting a guilty plea, to ask a misdemeanor defendant whether he knows there is a right to assistance of counsel and that counsel will be appointed if he can't afford counsel. That wasn't done here.
MN has forms to use for the purpose of advising pro se defendants and for pleading guilty. No one has reported Craig signed one and sent it back by mail with his guilty plea.
It appears that the prosecutor drafted the guilty plea form and that a critical advisement was omitted. If this is the case, Craig should be allowed to withdraw his plea.
Update: This AP report quotes law professor Steve Simon saying the same thing. Prof. Simon and I were on the Abrams his and Dan's attention. (Video here, see 3 minutes in.)Simon agrees now:
....in Craig's case "there are some very serious problems with the validity of that plea" because of the possibility that Craig may not have specifically waived his right to an attorney.
The police officer's Miranda warning to Craig covers only the police interrogation not the later court process. In his plea agreement Craig waived five specific rights, including the right to a trial, but not his right to an attorney. Hennepin County's standard plea petition includes a waiver of a right to an attorney but that wasn't used in Craig's case, Simon said.
...Minnesota's judicial rules require a defendant who doesn't use an attorney to waive that right, and such an omission has been the basis for withdrawing other guilty pleas, Simon said. He added that because Craig did not use an attorney, the prosecutor has the burden of showing the plea was valid. If Craig had had a lawyer, the burden would have been on the senator to show the plea was invalid.
