State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0176

State of Minnesota,
Respondent,

vs.

Geovany Gonzalez Bernia,
Appellant.

Filed December 17, 2018
Affirmed
Worke, Judge

Polk County District Court
File Nos. 60-CR-17-1600, 60-CR-16-52, 60-CR-15-2133

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Bjorkman, Judge; and Randall,
Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that he was denied his right to counsel when he sought to withdraw
his guilty pleas before sentencing based on ineffective assistance but his attorney continued
to represent him. Appellant also argues that his guilty plea to felony failure to appear was
invalid. We affirm.
FACTS
In November 2015, appellant Geovany Gonzalez Bernia was charged with threats
of violence and fifth-degree assault. In January 2016, Bernia was charged with two counts
of second-degree assault, two counts of threats of violence, and violation of an order for
protection (OFP). On January 12, 2016, Bernia appeared in both matters and was released
on bail with several conditions, in cluding that he “make all court appearances,” and not
leave the state without the district court’s permission . The district court stated that any
violation could result in new criminal charges.
In February 2016, Bernia was charged with violation of the OFP. Bernia requested
a continuance in all three matters. The district court granted the request, instructing Bernia:
“You need to app ear in court on [March 22, 2016, at 9:00 a.m.] Failure to appear could
result in new a nd separate charges . . . .” Be rnia did not appear on March 22, 2016.
Bernia’s attorney stated that he received a message that Bernia had a family emergency .
Warrants we re issued for Bernia’s arrest, which were not quashed until July 10, 201 7.
Bernia was charged with felony failure to appear for court.

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On October 25, 2017, Bernia agreed to enter Alford pleas in two of the matters. On
the charges from November 2015, Bernia agreed to plead guilty to threats of violence. On
the charges from January 2016, Bernia agreed to pl ead guilty to two counts of threats of
violence. The state agreed to dismiss the remaining charges and the violation-of-an-OFP
charge from February 2016. Bernia separately pleaded guilty to failure to appear. Bernia
acknowledged that if he had a trial a nd was convicted, his likely sentence would be 54
months in prison. The plea agreement contemplated a 21-month sentence.
The district court asked Bernia if he understood that he could have a trial. Bernia
replied: “I understand it, but my attorney wants me to do something different and that’s the
only deal that they are offering me.” The district court stated that it sounded like Bernia
claimed to be innocent and did not want to plead guilty. Bernia, who is from Cuba, replied:
“I am innocent, but I am pleading guilty because my mother’s about to die. S o . . . I want
to leave here.” Bernia indicated that he did not need more time to talk to his attorney, and
agreed that he was not coerced into pleading guilty. He indicated that he unders tood that
he waived any defense , and agreed that he was pleading guilty to lesser charges because
the evidence supported a guilty verdict of more serious charges.
At sentencing on November 2, 2017, Bernia stated that he wanted a trial and a new
attorney because h e was innocent but his attorney told him to plead guilty. Bernia’s
attorney, who was unaware that Bernia wanted to with draw his guilty pleas, stated: “[I]f
the [c]ourt does deem it appropriate to allow him to withdraw his guilty plea, it sounds like
he’s making a request for alternative [c]ounsel.”

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Bernia’s attorney then cited the rule for plea withd rawal and restated Bernia’s
reasons: he is not guilty and his attorney was ineffective. He noted that Bernia entered
Alford pleas, meaning Bernia maintained innocence when he pleaded guilty. Addressing
possible prejudice to the prosecution, Bernia’s attorney noted that the parties were ready
for trial at the plea hearing and a witness had traveled from Virginia. Bernia’s attorney
stated that he would file a plea-withdrawal motion “immediately,” but the prosecutor was
prepared to contest the motion without a written submission.
The district court recessed to consider Bernia’s motion. The district court noted that
Bernia’s cases were discussed in detail during numerous appearances and t hat a “lot of
facts were placed on the record” to support his Alford pleas. The district court stated that
Bernia’s attorney was “diligent and deliberate in moving” the cases forward and “spent a
great deal of time and effort with [Bernia].” The district court concluded:
[W]e had you s et for trial . . . [and] the witnesses were
here . . . in the courthouse. We had a witness . . . travel from a
significant distance away. . . . We had two interpreters prepared
to spend a n umber of days working with respect to your trial.
And, frankly, we’ve been working on your cases for a very
long period of time. We’ve got file dates th at go back to
November of 2015 . . . . [D]elaying these matter s further will
certainly have a significant prejudice against the [s]tate. . . . At
the time you entered your plea, there were issues and concerns
. . . about witness tampering and statements that you had made
to potential witnesses in your case. And if we wer e to delay
this any further, . . . I’ve got concerns about whether there
would be further instances of witness tampering.

I do believe that at the time that you entered into your pleas
that you knew what you were doing, that you understood the
actions that you were taking and the consequences of those
actions. . . . [Y]ou have not . . . met the burden of proving that

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it would be fair and just to withdraw these pleas of guilty at
this time.

The district court sentenced Bernia to 21 months in prison. This appeal followed.
D E C I S I O N
Plea withdrawal
Bernia argues that he was denied his right to counsel when he moved to withdraw
his guilty pleas before sentencing. A defendant may bring a motion to withdraw a guilty
plea before sentencing, which the district court has the discretion to allow “if it is fair and
just to do so.” Minn. R. Crim. P. 15.05, subd. 2. The district court considers “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 up on the
defendant’s plea.” Id. The defendant has the burden to establish a fair and just reason for
withdrawing his guilty plea. State v. Farnsworth, 738 N.W.2d 364, 371 (Minn. 2007). A
fair and just reason may be ineffective counsel at a plea -withdrawal proceeding due to a
conflict of interest. State v. Paige, 765 N.W.2d 134, 140 (Minn. App. 2009). If the district
court has sufficient notice of a potential conflict that could limit counsel’s representation,
it must “ascertain whether an impermissible conflict existed.” Id. at 141.
Bernia cla ims that his case is similar to Paige. In Paige, the defendant, while
represented by private counsel, pleaded guilty to second-degree murder. Id. at 136. Acting
pro se, Paige requested to withdraw his plea and fire his attorney, alleging that his attorney
did not assist him and coerced him into pleading guilty. Id. at 136-37. In response, Paige’s
attorney moved to withdraw. Id. at 137. When the district court held a hearing on Paige’s

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request to discharge his attorney and Paige did not have new repre sentation, the district
court declined to take action until Paige had substitute counsel. Id. Paige did not retain
another attorney and was represented by the same attorney at his sentencing/plea -
withdrawal hearing. Id. Paige’s attorney made no argument for plea withdrawal; instead,
he expressed uncertainty as to what he could do because the request was based on
ineffective assistance. Id. The district court denied the plea-withdrawal request. Id.
On appeal, Paige argued that the district court improperly addressed his motion to
discharge counsel, which resulted in in adequate representation at his plea -withdrawal
hearing. Id. at 140. This court held that because Paige’s attorney did not file a motion,
made no argument on Paige’s behalf, and stated only that his hands were tied , the district
court was on notice of a potential conflict and was required to ascertain whether an
impermissible conflict existed. Id. at 141. This court remanded to the district court to first
address Paige’s request to d ischarge his attorney and then f or a plea-withdrawal hearing.
Id. at 142.
Although Bernia aligns this matter with Paige, we observe several significant
differences. First, Paige had a private attorney and Bernia was represented by the public
defender’s office. Bernia’s attorney stated at the sentencing hearing that Bernia did not
get to choose his attorney and that if he was going to be represented by the public
defender’s office, his current attorney would continue representing him unless he made a
written request to the pu blic defender’s office for substitute counsel. Second, Paige’s
attorney moved to withdraw as counsel whereas Bernia’s attorney made no such request.

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Third, Paige requested to discharge his attorney prior to requesting to withdraw his
guilty plea. Here, the sequence is different. Bernia’s attorney stated: “The [c]ourt needs
to make a determination whether [Bernia] would be allowed to [withdraw his guilty pleas]
. . . . Then, if the [c]ourt does deem it appropriate to allow [Bernia] to withdraw his guilty
plea[s], . . . he’s making a request for alternative [c ]ousnel.” (Emphasis added.) Bernia
agreed. He did not correct this statement by requesting different representation on his plea-
withdrawal request. Moreover, while Paige’s plea -withdrawal motion was based on
ineffective assistance, Bernia’s primary basis f or plea withdrawal was his claim of
innocence.
Fourth, Paige’s attorney did not file a motion or argue in support of Paige’s request.
Here, Bernia’s attorney to ld the district court that he would file a motion “immediately.”
The district court, instead, allowed the parties to present their arguments. Bernia’s attorney
summarized Bernia’s reasons for requesting to withdraw his guilty plea s and the possible
prejudice to the state. See Minn. R. Crim. P. 15.05, subd. 2 (stating that a district court
must consider the reasons in support of the motion and any prejudice to the state). Bernia’s
attorney stated that Bernia claimed he was innocent and that his attorney was ineffective,
pointing out that Bernia entered Alford pleas. Bernia’s attorney suggested that the possible
prejudice to the prosecution would be that the parties were ready for trial and one witne ss
had traveled from Virginia. Bernia claims that these comments “undermined” his motion,
but they are simply the facts. Additionally, Bernia argued that he only found out about the
criminal charges at the last court hearing, his attorney was concerned with immigration and

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did not discuss the criminal matters , and he pleaded guilty because his attorney told him
to.
Finally, and most importantly, in Paige, the district court did not consider Paige’s
requests. Here, the district court considered Bernia’s ineffective -assistance and plea -
withdrawal claims. The district court stated that it did not believe Bernia’s claim that he
just found out about the charges because there were multiple hearings at wh ich the cases
were discussed. The district court stated that Bernia’s attorn ey was “diligent and
deliberate” and “spent a great deal of time and effort” working with Bernia on his case .
The district court also considered the prejudice to the state, noting that the cases were old,
one witness had traveled a significant distance, and there were allegations of Be rnia
tampering with witness es. Further, at his plea hearing, Bernia indicated that he was not
coerced into pleading guilty . The district court thoroughly considered Bernia’s claims
under the fair -and-just standard ; thus, the district court did not abuse i ts discretion by
denying Bernia’s request to withdraw his guilty pleas.
Failure-to-appear guilty plea
Bernia argues for the first time on appeal t hat his guilty plea to failure to appear in
court had an insufficient factual basis. Generally, an appellate court does not decide an
issue that was not first raised before the district court. Roby v. State, 547 N.W.2d 354, 357
(Minn. 1996). But if the record provides a sufficient basis for meaningful review, a
challenge to the validity of a guilty plea may be raised for the first time on appeal. See
State v. Anyanwu, 681 N.W.2d 411, 413 & n.1 (Minn. App. 2004) (holding that defendant
could challenge guilty plea for first time on appeal when challenge was based on matters

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of record and no material-fact dispute existed), overruled on other grounds by Wheeler v.
State, 909 N.W.2d 558 (Minn. 2018). The record here provides an adequate basis for
meaningful appellate review.
A valid plea must be accurate, voluntary, and intelligent. State v. Raleigh , 778
N.W.2d 90, 94 (Minn. 2010). To be accurate, a guilty plea must be supported by a proper
factual basis. Lussier v. State, 821 N.W.2d 581, 588 (Minn. 2012). A proper factual basis
requires sufficient facts on the record supporting a conclusion that the defendant’s conduct
falls within the charge to which he is pleading guilty. Kelsey v. State , 214 N.W.2d 236,
237 (Minn. 1974).
Bernia pleaded guilty to felony failure to appear.
A person charged with . . . a felony and released from
custody . . . who intentionally fails to appear when required
after having been notified that a failure to appear for a court
appearance is a criminal offense, or after having been released
on an order or condition that the releasee personally appear
when required wi th respect to the charge or conviction, is
guilty of a crime for failure to appear.

Minn. Stat. § 609.49, subd. 1(a) (2016). Bernia argues that the crime “should be limited to
cases of willful insubordination of judicial authority .” He asserts that the evidence was
insufficient that he missed court to willfully dis obey the district court’s order because he
went to Florida “just to prove that [he] didn’t want to be here.”
Bernia seems to suggest that in order to be guilty of felony failure to appear, the
reason for failing to appear is the act of sheer defiance of judicial authority. But the statute
does not limit the offense to circumstances in which a defendant fails to appear merely in
defiance of a court order. Under the statute, a person must be charged with a felony. Bernia

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was charged with a felony. A person must be released from custody. Bernia was released
from custody. A person must be notified that failure to appear is a crime or have a condition
of release that he personally appear when required. Bernia was released with conditions
requiring him to “make all court appearances,” and prohibiting him from leaving the state
without the district court’s permission. In imposing the conditions of release, the district
court stated that a violation could result in criminal charges. When Bernia later requested
a continuance, the district court granted the request and told Bernia that his failure to appear
at the continued hearing “could result in new and separate charges.”
Finally, a person must intentionally fail to appear. Bernia i ntentionally failed to
appear. In establishing the factual basis for Bernia’s guilty plea , he admitted that he did
not appear for the hearing scheduled for March 22. He stated: “Your Honor, I left. I went
to Miami, just to prove that I didn’t want to be here.” He admitted that he was required to
make that appearance and that “by not being there, even though [he] left the area, that that
would constitute a failure to appear for court.”
Even under Bernia’s interpretation, he “willfully disobeyed” the district court’s
order. He did not fail to app ear because he forgot , was ill or hospitalized, or any other
reason outside of his control. He went to Florida to “ prove that [he] didn’t want to be
here,” which was an intentional act of willful disobedience. The record contains sufficient
evidence to conclude that Bernia’s conduct fell within the charge to which he pleaded
guilty. As such, Bernia’s guilty plea was accurate and valid.
Affirmed.