Nicholas Patrick Pankuch, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A21-0668

Nicholas Patrick Pankuch, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 4, 2022
Affirmed
Johnson, Judge

Dakota County District Court
File No. 19AV-VB-17-5899

Andrew C. Wilson, Wilson & Clas, Minneapolis, Minnesota (for appellant)

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

Christine J. Cassellius, Ryan J. Bies, Greyson M. St. Martin, Dougherty, Molenda, Solfest,
Hills & Bauer, P.A., Apple Valley, Minnesota (for respondent)

Considered and decided by Johnson, Presiding Judge; Reyes, Judge; and Cochran,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
In 2017, Nicholas Patrick Pankuch was cited for three offenses: the misdemeanor
offense of driving a motor vehicle after susp ension of a driver’s license and two petty-
misdemeanor offenses. He did not appear in court or otherwise respond to the citation.
2
More than 60 days later, the di strict court entered guilty pl eas on all three offenses and
imposed a fine for each offense that is less than the maximum fine for a petty-misdemeanor
offense. Four years later, Pankuch moved to withdraw his guilty pleas. The post-
conviction court denied the motion. We conclude that the post-conviction court did not err
by concluding that Pankuch did not establish that withdrawal of his guilty plea is necessary
to correct a manifest injustice. Therefore, we affirm.
FACTS
Shortly after 10:00 p.m. on March 20, 2 017, an Apple Valley police officer saw a
parked vehicle in a city park that had clos ed at 10:00 p.m. The officer approached the
vehicle to speak with its occupants, which allowed him to smell the odor of marijuana. The
officer searched the vehicle and found approximately 15 grams of marijuana, a marijuana
pipe, and a marijuana grinder. The officer learned that Pankuch’s driver’s license had been
suspended. Both Pankuch and his companion told the officer that Pankuch had driven the
vehicle before it was parked.
The officer gave Pankuch a citation alle ging three offenses: (1) driving a motor
vehicle after suspension of a driver’s license , a misdemeanor, in violation of Minn. Stat.
§ 171.24, subd. 1 (2016); (2) possession of a small amount of marijuana, a petty
misdemeanor, in violation of Minn. Stat. § 152.027, subd. 4(a) (2016); and (3) possession
of drug paraphernalia, a petty misdemeanor, in violation of Minn. Stat. § 152.092(a)
(2016).
The citation informed Pankuch that he was required to pay fines or schedule a court
appearance within 30 days and provided a telephone number that could be called for more
3
information or to ask questions. The citation also informed Pankuch that if he paid a fine,
he would be entering a plea of guilty. The citation further in formed Pankuch that, if he
failed to appear in court or otherwise respond to the citation, a warrant could be issued for
his arrest. In addition, the citation stated , “For petty misdemea nors and misdemeanors
certified as petty misdemeanors, failure to appe ar or respond as required is considered a
waiver of the right to trial, and a guilty plea and conviction will be entered on the charge(s),
unless the failure to appear is due to circumstances beyond your control.”
Pankuch did not appear in c ourt or otherwise respond to the citation. The district
court’s register of actions indicates that, on May 30, 2017, a plea of guilty was entered for
each of the three offenses, and each was entered as a petty mi sdemeanor. The register of
actions also indicates that fi nes of $200, $50, and $50, as well as a fee of $80, were
imposed. The fines and fee were referred to “collections” on August 20, 2017, and were
paid in full by a collection agency on December 5, 2018.
In March 2021, Pankuch filed a motion to withdraw his guilty pleas on the ground
that withdrawal is necessary to correct a manifest injustice. See Minn. R. Crim. P. 15.05,
subd. 1. He filed an accompanying affidavit in which he stated that, after he received the
citation, he expected to receive notice of a court hearing but did not receive any such notice.
He further stated that he later received a letter stating that he had unpaid fines and that he
paid the amount due.
The post-conviction court conducted a hearing on the motion in May 2021. Pankuch
argued that withdrawal is necessary on the gr ound that there was “no valid factual basis”
for the plea, no waiver of his right to a trial, no finding of guilt, and “no discussion of the
4
future potential enhanceability of drug-related convictions.” The state opposed the motion.
The post-conviction court denied the motion on the record for the following reasons:
I’m looking at the actual citation. It does indicate the
timeframe in which to respond. It also indicates very clearly
in a box that’s entitled Penaltie s for Failure to Appear or
Respond.

I am looking at MNCIS. I am showing that notices were
sent to Mr. Pankuch to address these issues and to appear to
address this matter. I’m also noticing the notices that were sent
to Mr. Pankuch were not sent ba ck, so it is deemed that he
received them.

As such, I’m going to deny the motion. I don’t see
anything to support or correct a manifestation of injustice,
counsel. I do not.

Later that same day, Pankuch filed a written motion for reconsideration, which was denied.
Pankuch filed a notice of appeal. This court questioned whether Pankuch had timely
appealed from an appealable order and aske d the parties to submit informal memoranda
concerning the legal and factual bases of the appeal. After the parties filed memoranda, a
special-term panel ruled that this court does not have appellate jurisdiction with respect to
the second and third offenses , which are petty-misdemeanor offenses and, thus, may not
be challenged in a post-conviction action. See Freeman v. State, 804 N.W.2d 144, 145-48
(Minn. App. 2011). But the special- term panel ruled that this court does have appellate
jurisdiction with respect to Pa nkuch’s first offense, driving af ter suspension of a driver’s
license, which is classified by statute as a misdemeanor offense and, thus, may be
challenged in a post-conviction action, even though Pankuch’s offe nse was certified as a
petty misdemeanor because of the sentence imposed.
5
DECISION
Pankuch argues that the post-conviction court erred by denying his motion to
withdraw his guilty plea to the charge of driving a moto r vehicle after suspension of a
driver’s license.
A.
Pankuch’s guilty plea was ente red pursuant to a statute a nd a rule of court. The
applicable statute provides, “If a person fails to appear in cour t on a charge that is a petty
misdemeanor, the failure to appear is considered a plea of guilty and waiver of the right to
trial, unless the person appears in court within ten days and shows that the person’s failure
to appear was due to circumstances beyond the person’s control.” Minn. Stat. § 609.491,
subd. 1 (2016).
Similarly, a rule of criminal procedure provides,
If a defendant charged with a petty misdemeanor, or a
misdemeanor on the Statewide Payables List that is certified as
a petty misdemeanor, fails to appear or respond as directed on
the citation, complaint, or by the court, a guilty plea and
conviction may be entered, the payable fine amount no greater
than the maximum fine for a petty misdemeanor, and any
applicable fees and surcharges, may be imposed, and the matter
referred to collections.

Minn. R. Crim. P. 23.05, subd. 4.
The statute and the rule apply to the circ umstances of this ca se. Pankuch did not
appear in court within 30 days and did not appear within ten days thereafter to explain his
earlier failure to appear. The offense of dr iving a motor vehicle after suspension of a
driver’s license, which is classified by statute as a misdemeanor, was included in the 2017
6
Statewide Payables List. Minn. Judicial Branch, 2017 State Payables List, Traffic &
Criminal 20, https://www.mncourts.gov/mncourtsgov/media/scao_library/Statewide %20
Payables/2017-Traffic-Criminal-Payables-Lists.pdf (last visited Mar. 18, 2022).
Pankuch’s offense was certified as a petty misdemeanor because of the sentence imposed,
a fine of $200. A conviction of an offense that ordinarily is a misdemeanor may be certified
as a petty misdemeanor at the time of sentenci ng “if the sentence imposed is within petty
misdemeanor limits.” Minn. R. Crim. P. 23.02; see also Minn. R. Crim. P. 23 cmt. 7; cf.
Minn. Stat. § 609.131, subd. 2 (2016). The maximum punishment for a petty misdemeanor
is a fine of $300. Minn. Stat. § 609.02, subd. 4a (2016); Minn. R. Crim. P. 23.01.
Thus, the district court complied with the applicable statute and rule when it entered
a petty-misdemeanor guilty plea and imposed a $200 fine for Pankuch’s offense of driving
a motor vehicle after suspension of a driver’s license after Pankuch failed to appear in court
or otherwise respond to the citation.
B.
Despite his failure to appear, Pankuch is not foreclosed from challenging his guilty
plea. A person who has pleaded guilty to a petty misdemeanor by failing to appear or
otherwise respond “may move under Rule 15.05 to withdraw the guilty plea and vacate the
conviction.” Minn. R. Crim. P. 23.05, subd. 5. Under rule 15.05, a person must be
permitted to withdraw a guilty plea after sent encing if the person has submitted “proof to
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the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.”
Minn. R. Crim. P. 15.05, subd. 1.1
One type of manifest injustice under rule 15.05 is the situation in which a guilty plea
is invalid because it is not accurate , not voluntary, or not intelligent. See, e.g., State v.
Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). This th ree-part standard has been the law in
Minnesota since no later than 1983. See State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).
To satisfy the accuracy requirement, a guilty plea “must be established on a proper factual
basis.” Raleigh, 778 N.W.2d at 94. A proper factual basis exists if there are “‘sufficient
facts on the record to support a conclusion that defendant’s conduct falls within the charge
to which he desires to plead guilty.’” State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003)
(quoting Kelsey v. State , 214 N.W.2d 236, 237 (Minn. 1974)). Stated somewhat
differently, a proper factual basis exists if “‘ the record contains a showing that there is
credible evidence available which would support a jury verdict that defendant is guilty of
at least as great a crime as that to which he pled guilty.’” Nelson v. State, 880 N.W.2d 852,
859 (Minn. 2016) (quoting State v. Genereux , 272 N.W.2d 33, 34 (Minn. 1978)). “The
factual basis of a plea is inadequate when th e defendant makes statements that negate an
essential element of the charged crime because such statements are inconsistent with a plea
of guilty.” Iverson, 664 N.W.2d at 350.

1 A motion to withdraw pursuant to rule 15.05, subdivision 1, must be asserted in a
post-conviction action. James v. State , 699 N.W.2d 723, 727 (Minn. 2005). A post-
conviction petition generally must be filed within two years af ter the entry of judgment.
Minn. Stat. § 590.01, subd. 4 (2016). In this case, the state does not argue that Pankuch’s
post-conviction action is untimely.
8
Pankuch asserts that his guilty plea is invalid under th is body of caselaw. He
contends that his guilty plea is inaccurate because no factual basis for the plea was
presented to the district court. Pankuch elaborates by asserting that the guilty plea “never
occurred” and that his failure to appear in court “is not enough to establish that he is guilty
. . . because a failure to appear has nothing to do with the essential elements” of the charged
offense. Pankuch insists that he is not ch allenging the validity of either section 609.491,
subdivision 1, or rule 23.05, su bdivision 4. Nonetheless, he contends that he must be
allowed to withdraw his guilty plea because there was no plea proceeding in which a record
was made of the facts on which his guilty plea is based. In effect, Pankuch contends that
a guilty plea to a petty misdemeanor entered after a failure to appear may be withdrawn as
a matter of right.
Pankuch has not cited a ny authority for the proposition that the three-part Trott test
applies to a guilty plea to a petty misdemeanor that was entered after a defendant’s failure
to appear, and we are unaware of any such auth ority. As far as our research reveals, the
three-part Trott test applies only to a guilty plea that was entered during a plea hearing in
which a defendant makes a personal appearance, orally states his or her intention to plead
guilty, and orally admits to facts that constitute an offense. A defendant is required to make
a personal appearance when pleading guilty to a felony offense. Minn. R. Crim. P. 15.01,
subd. 1. A defendant also is required to make a personal appearance when pleading guilty
to a gross misdemeanor or mi sdemeanor offense, unless a de fendant files a written plea
petition. Minn. R. Crim. P. 15.02, subd. 1, 15.03, subd. 2. In that event, the plea petition
must reflect “the understanding and knowledge required of defendants personally entering
9
a guilty plea [to a gross misdemeanor or misdemeanor] unde r Rule 15.02.” Id. If a
defendant pleads guilty by way of a plea petition, the three-part Trott test may apply. See,
e.g., State v. Lyle, 409 N.W.2d 549, 552-53 (Minn. App. 1987). But there is no requirement
in the applicable statute or rule that an oral or written factual record must be made if a
defendant fails to appear on a petty-misdemeanor charge. See Minn. Stat. § 609.491,
subd. 1; Minn. R. Crim. P. 23 .05, subd. 4. Because there is no factual record upon a
defendant’s failure to a ppear, there is nothing to which the three-part Trott test may be
applied.
Thus, Pankuch is not entitled to withdraw his guilty plea on the ground that there is
no factual basis for the plea.
C.
Rule 15.05, subdivision 1, is not necessarily limited to the three-part Trott test. The
supreme court has held that a manifest injusti ce may exist in a variety of circumstances.
For example, a manifest injustice may exist if a district court “lacked jurisdiction over the
subject matter” or if a defendant “was not adequately afforded th e advice of competent
counsel.” Chapman v. State, 162 N.W.2d 698, 702 (Minn. 1968) (citing State v. Minton,
149 N.W.2d 384, 387 (Minn. 1967) and State v. Waldron, 139 N.W.2d 785, 792 (Minn.
1966)).
In this case, the post-conviction court denied Pankuch’s motion to withdraw his
guilty plea on the record at th e hearing on his motion. After receiving oral arguments by
counsel, the post-conviction court noted that Pankuch’s citation “indicate[d] the timeframe
in which to respond” and informed him of the penalties that would be imposed if he failed
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to appear. There is no dispute that Pankuch failed to appear, as required by the citation.
Pankuch admitted as much in the affidavit that he filed with his motion. The post-
conviction court also noted that Pankuch received a notice from the court after he had failed
to appear within the required 30-day period but did not take any action at that time. The
district court waited more than 30 additional days before entering Pa nkuch’s guilty plea.
Based on the record before it, as well as the applicable law concerning a defendant’s failure
to appear for a petty misdemeanor, the post-conviction court appropriately concluded that
Pankuch did not establish the existence of a manifest injustice. See Minn. Stat. § 609.491,
subd. 1; Minn. R. Crim. P. 23.05, subd. 4.
D.
Before concluding, we note that the state has made an alterna tive argument: that
Pankuch pleaded guilty by paying the $200 fine that was imposed. In his reply brief,
Pankuch argues that he did not voluntarily pay the fine but, rather, did so involuntarily after
the district court referred the matter to a co llections agency. Because we have concluded
that the district court properly entered a gu ilty plea based on Pankuc h’s failure to appear
or otherwise respond within 30 days, we need not determine whether the guilty plea also
is justified by a payment of the fine.
In sum, the post-conviction court did not err by denying Pankuch’s motion to
withdraw his guilty plea to the charge of driving a moto r vehicle after suspension of a
driver’s license.
Affirmed.