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 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. The former can't substitute for the latter.
Also, Rule 15.01 of the MN Rules of Criminal Procedure, applicable to misdemeanor pleas, provides :
Before the court accepts a plea of guilty to any offense punishable upon conviction by incarceration, any plea agreement shall be explained in open court. The defendant shall then be questioned by the court or counsel in substance as follows:
....3. Whether the defendant knows there is a right to the assistance of counsel at every stage of the proceedings and that counsel will be appointed for a defendant unable to afford counsel.
The rule on whether he can withdraw a guilty plea is 15.05:
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. Subd. 2. Before Sentence. In its discretion the court may also allow the defendant to withdraw a plea at any time before sentence if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant's plea. Subd. 3. Withdrawal of Guilty Plea Without Asserting Innocence. The defendant may move to withdraw a plea of guilty without an assertion of not guilty of the charge to which the plea was entered.
Based on the failure of the plea petition to advise him of his right to counsel, I'd say Craig should be able to withdraw his guilty plea.
Then, the issue, as
LNILR wrote, is would he want to?
Given that we've already heard all the details of what happened in the bathroom, and that Sen. Craig denies the officer's account and interpretation as to everything but the foot bump, I don't see what he has to lose -- unless there's some way that the prosecution can convince the court to allow similar incidents into evidence (if they have witnesses to it) to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," or to challenge Craig's credibility if he takes the stand at trial and insists he would never do such a thing because he isn't gay.
