Opinion
No. C3-97-938.
Filed January 6, 1998.
Appeal from the District Court, Anoka County, File No. K2-96-205.
Hubert H. Humphrey III, Attorney General, and Robert M. A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, (For Respondent).
Mark D. Nyvold, (For Appellant).
Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Jason Prell pleaded guilty to committing a pattern of harassing conduct in violation of Minn. Stat. § 609.749, subd. 5(a). At the plea hearing, he admitted that, over the course of several months, he threatened his former girlfriend, telephoned her numerous times at home and at work, and finally broke into her home. Police discovered him hiding in the attic.
Appellant's postconviction petition included a claim that he should be allowed to withdraw his guilty plea because it did not include an admission that he acted with specific intent, as required by State v. Orsello , 554 N.W.2d 70 (Minn. 1996). Because the specific intent requirement set out in Orsello does not apply to this offense and, even if it did, the facts stated at appellant's plea hearing established that appellant acted with specific intent, we affirm.
DECISION
Minn. Stat. § 609.749 (1994) enumerates harassment and stalking crimes. In Orsello , 554 N.W.2d at 76, the supreme court defined the crime of "stalking" under this statute to include the element of specific intent. The offense of "pattern of harassing conduct" is defined as engag[ing] in a pattern of harassing conduct * * * in a manner that would cause a reasonable person under the circumstances to feel terrorized or to fear bodily harm and that does cause this reaction on the part of the victim[.]
Minn. Stat. § 609.749 has since been amended to require no proof of specific intent. See 1997 Minn. Laws ch. 96, § 7 (adding subdivision 1a to § 609.749).
Minn. Stat. § 609.749, subd. 5(a). The "pattern of harassing conduct" is defined as two or more acts committed within a five-year period that constitute any of a number of listed offenses, including stalking, harassment, or fifth-degree assault. Id. at subd. 5(b).
However, while predicated upon underlying offenses that require specific intent, the statute does not require that a "pattern of harassing conduct" offense have a new element of specific intent. Further, we read Orsello to require specific intent for each underlying stalking offense, but not for the offense of a pattern of harassing conduct. See Orsello , 554 N.W.2d. at 76 (holding that specific intent required for crime of "stalking" under Minn. Stat. § 609.749). Thus, we conclude that the plea in this case did not violate the requirements of Orsello .
Even assuming Orsello's requirement of specific intent applied to the offense charged here, appellant entered his plea five months prior to the supreme court's decision in Orsello . Although this court has held that Orsello applies retroactively because it corrected an erroneous interpretation of a statute, our decision is currently on review before the supreme court. State v. Loewen , 565 N.W.2d 714, 716 (Minn.App. 1997), review granted (Minn. Aug. 26, 1997). Thus, it is uncertain whether Orsello will be given retroactive effect.
Finally, although the colloquy between appellant and the district court at the plea hearing did not include a question on or admission of specific intent, we are satisfied that the district court properly concluded that the record established a factual basis showing that appellant committed the crime with specific intent. See State v. Ecker , 524 N.W.2d 712, 716 (Minn. 1994) (to be accurate, plea must provide proper factual basis showing defendant committed charged crime). Here, appellant explained the circumstances surrounding the crime, including an admission that he threatened the victim, repeatedly telephoned her, broke into her house, and hid in the attic. He also agreed that he was guilty of the particular charged offense, stating in several exchanges with the court that he was "wrong for what [he] did," was "at fault," and was "guilty for what [he] did." Based on these statements, the district court, acting as fact finder for purposes of accepting appellant's plea, could properly conclude that appellant acted with specific intent to commit a pattern of harassing conduct.
For all these reasons, we conclude that the postconviction court did not abuse its discretion in declining to withdraw the plea. See Hodgson v. State , 540 N.W.2d 515, 517 (Minn. 1995) (appellate court reviews postconviction proceeding only to determine whether there is sufficient evidence to sustain postconviction court's findings). Nor is withdrawal of the plea "necessary to correct a manifest injustice." Minn.R.Crim.P. 15.05, subd. 1.
Finally, we grant appellant's motion to strike pages 4-12 of respondent's brief, which contains portions of the state's brief to this court in State v. Bowen , 560 N.W.2d 709 (Minn. 1997). Because these materials were not part of the trial court record, this court declines to consider them on appeal. See Minn.R.Civ.App.P. 110.01; Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988).