State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0470

State of Minnesota,
Respondent,

vs.

Willie III Wair,
Appellant.

Filed March 22, 2021
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CR-19-8091

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Christopher L. Mishek, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Florey, Judge; and Frisch,
Judge.
NONPRECEDENTIAL OPINION
FLOREY, Judge
Appellant Willie III Wair challenges his conviction of and sentence for secon d-
degree criminal sexual conduct, arguing that (1) the district court erred by refusing to
permit him to withdraw his guilty plea; (2) he was denied his right to a fair trial by

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ineffective assistance of counsel; and (3) the district court erred by sentenc ing him in
absentia after he struck his counsel, knocking him to the ground. We affirm.
FACTS
Appellant William Wair III 1 was charged with one count of first -degree criminal
sexual conduct in violation of Minn. Stat. § 609.342, subd. 2(a) (201 2), and one count of
second-degree criminal sexual conduct in violation of Minn. Stat. § 609. 343, subd. 1(h)(iii)
(2012). As part of a negotiated agreement, appellant pleaded guilty to second -degree
criminal sexual conduct. At the plea hearing, the distric t court found that appellant had
made a knowing, voluntary, and intelligent waiver of his right to trial and ordered a
presentence investigative report and a psychosexual evaluation.
Prior to sentencing, appellant sent the district court a letter asking to withdraw his
guilty plea. Appellant claimed his plea was involuntary because he was under “threat,
duress, or coercion” because his attorney wanted to increase his fee if the matter went to
trial. At the beginning of the sentencing hearing, the district court confirmed with appellant
that defense counsel was still representing him. The district court agreed to hear appellant’s
plea-withdrawal motion. Defense counsel deferred to appellant to make his argument.
Appellant informed the district court that he was under the influence of a mind -altering
prescription medication that affected his judgment and asked the district court to permit
withdrawal of his plea. The district court denied appellant’s request as untimely and

1 Appellant’s actual name is “Willi am Wair III” but the title of the district court action,
and, accordingly, the appellate caption, is Willie III Wair.

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prejudicial to the state. Ap pellant interrupted the court, declared he was not guilty, and
then assaulted his attorney. The district court summarized what happened as follows:
THE COURT: Okay. . . . continuing with the sentencing in
this case when I inquired of the defendant if h e would like to
go through the presentence investigation process and the
psychosexual process, he turned and knocked – and punched
his attorney . . . on the right side of his face, knocking him
down to the floor. The two deputies immediately restrained
[appellant] and took him to the ground and handcuffed him.
He was immediately, um, taken from this courtroom.

The district court granted the state’s motion to sentence appellant in absentia
pursuant to Minn. R. Crim. P. 26.03, subd. 1(2), and proceeded to sentence appellant to the
negotiated 94-month sentence. This appeal followed.
DECISION
I. Plea withdrawal
A defendant does not have an absolute right to withdraw a guilty plea. State v.
Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). Guilty pleas may be withdrawn only if one of
two standards are met: (1) at any time, a plea withdrawal must be permitted if “necessary
to correct a manifest injustice” or (2) a plea may be withdrawn before sentencing when “it
is fair and just to do so.” Minn. R. Crim. P. 15.05, subds. 1, 2. Appellant argues that he is
entitled to withdraw his guilty plea under both the manifest -injustice and fair -and-just
standards.
A. Manifest injustice
A manifest injustice exists when a plea is not constitutionally valid, because it is not
accurate, voluntary, and intelligent. Raleigh, 778 N.W.2d at 94. Appellant bears the

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burden of showing his plea was invalid. Id. The constitutional validity of a guilty plea is
a question of law that this court reviews de novo. Id. Appellant argues that withdrawal is
necessary to correct a manifest injustice because his plea was neither intelligently nor
voluntarily made.
Appellant claims his plea was unintelligent because he was under the influence of
Seroquel, an antipsychotic medication, and was not “thinking clearly.” A plea is intelligent
if the defendant “understands the charges against him, the rights he is waiving, and the
consequences of his plea.” Id. at 96. The record establishes that appellant’s plea was
intelligent. In his plea petition, appellant indicated that he understood the charges against
him and had sufficient time to discuss his case with counsel. At the plea hearing , he
testified to having a “clear mind” and sufficient time to review the petition and rights he
was waiving with his attorney. See State v. Lopez , 379 N.W.2d 633, 638 (Minn. App.
1986) (noting that a presumption arises that the defendant has been adequately informed
of the charges and consequences of the plea when the record shows he discussed the plea
with his attorney).
Appellant also asserts his plea was involuntary, claiming it was induced by improper
pressures and coercion stemming from his antipsychotic medication, general mental health,
and a billing dispute with his attorney. A plea is voluntary if it is secured without improper
pressure or coercion. Raleigh, 778 N.W.2d at 96. There is nothing in the record to indicate
that appellant’s plea was anything but voluntary. In both his sworn testimony and his plea
petition, appellant confirmed that he was pleading guilty on a voluntary basis and that no
threats or promises were made to induce his plea. See State v. Ecker, 524 N.W.2d 712, 719

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(Minn. 1994) (observing that a record showing a voluntary guilty plea may preclude a claim
that the plea was involuntary). He agreed that he was satisfied with his attorney, who had
fully represented his interests. Further, in arguing for reduced bail, appellant’s attorney
stated that “[Seroquel] has significantly improved [appellant’s] mental health.” Thus,
appellant’s assertion that his antipsychotic medication affected his ability to think clearly
is not only contradicted by the record, but also by his own previous argument to the district
court.
Because the record establishes that his guilty plea was intelligent and voluntary,
appellant has failed to demonstrate a manifest injustice.
B. Fair and just
A defendant is entitled to withdraw his guilty plea prior to sentencing if it would be
“fair and just to do so.” Minn. R. Crim. P. 15.05, subd. 2. Under the less-burdensome fair-
and-just standard, the defendant bears the burden of providing reasons supporting
withdrawal, while the state bears the burden of showing it would be prejudiced by
withdrawal. Raleigh, 778 N.W.2d at 97. This court reviews a district court’s decision to
deny a motion to withdraw before sentencing for an abuse of discretion, giving defere nce
to the district court’s credibility determinations. State v. Aviles-Alvarez, 561 N.W.2d 523,
525 (Minn. App. 1997). Appellant argues that the district court abused its discretion by
refusing to permit withdrawal of his guilty plea because he provided reasons supporting
the withdrawal, the motion was timely, and withdrawal would not prejudice the state.
Appellant advances the same arguments for withdrawal und er the fair -and-just
standard—that he was coerced into pleading guilty because his attorney was not prepared

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to go to trial without additional funds and that he was “not thinking clearly” because of his
medication. Appellant failed to make any claim about the Seroquel until after he talked to
the psychosexual evaluator and then claimed it affected his judgment without providing
any factual support for his allegations. These delayed and unsubstantiated claims do not
negate the sworn statements appellant made while pleading guilty. See Andersen v. State,
830 N.W.2d 1, 1 1 (Minn. 2013) (“Solemn declar ations in open court carry a strong
presumption of verity and subsequent presentation of conclusory allegations unsupported
by specifics is subject to summary dismissal.”).
“The tender of a guilty plea, once accepted by a court, is and must be a most solemn
commitment.” State v. Wukawitz, 662 N.W.2d 517, 526 (Minn. 2003). Appellant carries
the burden of advancing reasons for withdrawal, other than merely a change of heart .
Appellant has not met that burden. The district court did not abuse its discretion by denying
appellant’s motion to withdraw.
II. Ineffective assistance of counsel
A defendant has the right to reasonably effective assistance of counsel under the
Sixth Amendment to the United States Constit ution. State v. Rhodes , 657 N.W.2d 823,
842 (Minn. 2003). Ineffective-assistance-of-counsel claims involve mixed questions of
law and fact that this court reviews de novo. Id. Appellant claims that his counsel was
ineffective at his sentencing hearing because of the attorney’s personal conflict of interest,
thus entitling appellant to a new plea-withdrawal hearing.
Minnesota courts apply a modified two-prong test for cases involving an allegation
of ineffective assistance of counsel due to a conflict of interest, depending on whether and

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to what extent the defendant brought the alleged conflict to the district court’s attention .
State v. Paige, 765 N.W.2d 134, 140 (Minn. App. 2009); see Cooper v. State, 565 N.W.2d
27, 32 (Minn. App. 1997), review denied (Minn. Aug. 1997). Where the court is aware of
a probable risk of conflict and fails to take adequate steps to determine whether an
impermissible conflict exists, “the defendant’s conviction must be reversed without inquiry
into prejudice resulting from the alleged conflict.” Id. (citing Holloway v. Arkansas, 434
U.S. 475 (1978)). But if a defendant does not object at trial, he must demonstrate that an
actual conflict existed that adversely affected counsel’s performance. Paige, 765 N.W.2d
at 140.
Appellant asserts that the district court had notice of a probable conflict based on
his pro se letter and his attorney’s failure to argue the plea -withdrawal motion. However,
rather than clearly telling the district court that a significant conflict of intere st existed,
appellant’s letter merely requested the district court permit him to withdraw his guilty plea.
Further, at the beginning of his sentencing hearing, appellant confirmed that he was still
represented by his defense attorney. Therefore, the dist rict court did not have notice of a
probable risk of conflict.
A conflict of interest exists if “there is a significant risk that the representation of
one or more clients will be materially limited by . . . a personal interest of the lawyer.”
Minn. R. P rof. Conduct 1.7. Appellant asserts that a conflict of interest exists because
defense counsel increased his fee and stated he would not prepare for trial without
additional funds.

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Appellant fails to cite binding authority to support his assertion that these allegations
amount to a conflict of interest. While appellant’s attorney did not file a motion to
withdraw the plea prior to the hearing, he requested that appellant be permitted to move for
plea withdrawal at the sentencing hearing and then deferred to appellant to make his
argument. Because appellant’s attorney did not actively argue against appellant’s interest
in withdrawing his guilty plea and because a fee dispute is not an actual conflict of interest,
no conflict exists here.
In Butala v. State , 6 64 N.W.2d 333, 337 (Minn. 2003) , the Minnesota Supreme
Court acknowledged that when a defendant seeks to withdraw his guilty plea on grounds
that involve counsel’s representation, the better practice is to appoint substitute counsel.
However, in that case, the court ultimately affirmed the district court’s denial of plea
withdrawal because the district court gave the defendant’s motion serious consideration.
Id. Here, as in Butala, appellant was permitted to fully argue his motion to the district
court. The district court confirmed that it reviewed appellant’s letter. Then, even though
appellant did not follow the proper procedure to move to withdraw his plea, the district
court still allowed him to make his argument. Based on its review of appellant’s petition
and argument, the district court denied appellant’s motion. The district court did not abuse
its discretion in denying appellant’s motion to withdraw his guilty plea.
III. Sentencing in absentia
Generally, the Confrontation Clause of the Sixth Amendment guarantees a criminal
defendant the right to be present at all stages of his or her trial. U.S. Const. amend. VI;
State v. Gillam, 629 N.W.2d 440, 450-51 (Minn. 2001). Likewise, the Minnesota Rules of

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Criminal Procedure state that a criminal defendant “must be present for every stage of
trial,” including sentencing. See Minn. R. Crim. P. 26.03, subd. 1(1)(h).
After appellant struck his attorney, the district court concluded that he “voluntarily
terminated his counsel’s representation” and granted the state’s motion to sentence
appellant in absentia pursuant to Minn. R. Crim. P. 26.03. Appellant argues that the district
court’s ruling was erroneous because it is unlawful in Minnesota to sentence a person to
prison in absentia, regardless of a defendant’s wrongful conduct. This is a question of law
that we review de novo. See State v. Kuhlmann, 806 N.W.2d 844, 848-49 (Minn. 2011)
(stating that denial of jury trial right s raises a constitutional question that is reviewed de
novo).
The Minnesota Supreme Court first addressed the question of whether a defendant
is required to be present for sentencing in a felony case in State ex rel. Shetsky v. Utecht,
36 N.W.2d 126 (Minn. 1949). The court determined that a criminal defendant may wa ive
the right to be present for trial “up to and including the rendition of the verdict,” but “the
imposition of a sentence of imprisonment, even in his voluntary absence, [is] illegal and a
lack of due process. ” Id. at 131. Consistent with Utecht’s holding, the Minnesota Rules
of Criminal Procedure require a felony defendant to be present at the original sentencing
hearing. Minn. R. Crim. P. 27.03, subd. 2 (A); 26.03, subd. 1(3) (in felony matters “[t]he
court may excuse the defendant from attendance at any proceeding except at . . .
sentencing.”). Thus, in Minnesota, while the rules explicitly allow a defendant to waive
his presence at trial through absenc e without justification or unruly behavior , no such

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express exceptions currently exist for the waiver of his presence at his original sentencing
hearing.
The state compares this case to State v. Lehman , 749 N.W.2d 76, 79 (Minn. App.
2008). In Lehman, the defendant “attacked and beat his attorney in open court . . . after the
district court denied his requests to discharge his public defender and declare a mistrial.”
Id. at 79. In affirming the forfeiture of the defendant’s right to court -appointed counsel,
this court stated:
No court can carry on its business in an atmosphere of violence,
fear, and intimidation. . . . Violence in the courtroom cannot
be tolerated and when that violence is a part of a manipulation
of the right to appointed counsel it is appropriate to deprive the
defendant of that right. We are aware that forfeiting a
defendant’s right to court -appointed counsel is an extreme
sanction. But the outrageous and manipulative conduct of
appellant in this instance justified the district court’s decision.
Moreover, the district court’s action is the most effective
means of deterring repetition of such conduct by appellant and
others similarly situated.

Id. at 82.
Here, after appellant physically assaulted his attorney, the district court immediately
excluded him from the courtroom and proceeded to sentencing. The state argues that
determining appellant’s violent and disruptive attack on his attorney does not amount to
forfeiture or waiver of his right to be present at sentencing only rewards his repugnant
behavior, and that the principles expressed in Lehman should also apply here.
The rule in Minnesota, although a minority view, requires a defendant to be present
at sentencing and, by its explicit language, does not permit waiver. But because appellant
was sentenced to the agreed -upon 94-month sentence, we determine that any error was

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harmless beyond a reasonable doubt. See id. at 85 (stating that even if a defendant is
wrongfully denied the right to be present at a critical stage of a trial, the error can
nevertheless be harmless beyond a reasonable doubt if it surely did not affect the outcome
of the hearing).
Affirmed.