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No plea change for Brooks

A last ditch effort to avoid a prison term by Jeffrey Allan Brooks, who pleaded guilty to the second degree murder of Diane Fortenberry, 52, Osakis, was quashed by the court.

According to a decision filed by Judge Jay D. Carlson in Todd County District Court April 20, Brooks' request was denied as he failed to reach any of the burdens set forth by the law.

Brooks would have been able to withdraw his plea if the court had found that his request had been "fair and just" to do so with due consideration to two factors. First, the reasons he gave to support the withdrawal and secondly, the prejudice granting the motion would cause the state given the reliance on the plea.

Carlson also noted that the burden was Brooks' to prove that a fair, just reason existed and that the state's prosecution had the burden of showing any prejudice that allowing it would cause.

The arguments Brooks brought forth included:

-The plea was conditional and accepted by the court at the plea hearing.

-That it was troubling that the guilty plea was taken during an ITV plea hearing.

-That he did not make a valid plea as venue was not addressed and that the plea was not intelligent, voluntary and accurate.

Carlson, in the opinion filed, noted, "Whether or not the defendant is directly challenging the use of ITV for the plea hearing, the use of ITV does not give a "Fair and Just" reason to allow the defendant to withdraw his guilty plea."

"Venue was in fact found in the defendant's plea and the factual basis and this is not a "Fair and Just" reason."

As to the arguments that the plea was not intelligent, voluntary and accurate, Carlson noted that he found that numerous opportunities were made to explain the plea process to Brooks. Brooks also asserted that he felt bullied by the prosecution into entering a plea by the state threatening to convene a grand jury.

"The state's attorney simply did his job in setting a grand jury and moving the case forward and making plea offers to the defendant and his attorneys," Carlson wrote.

"Additionally, the defendant's attorney's advice and assistance fell within the range of reasonable professional assistance."

"Importantly, the defense attorney never made any threats to the defendant, never told him he had to plead guilty and never acted against the instructions of the defendant."

"The defendant received effective assistance and counseling."

On the matter of the plea not being accurate, Carlson also noted that Brooks' own testimony on the event provided enough to make the plea accurate.

"It is clear to the court that the defendant intended to kill Mrs. Fortenberry in order to get out of the house," Carlson noted.

"Mrs. Fortenberry fell to the ground after the defendant's initial strike. Instead of leaving immediately, he kicked her at least twice in the head after she fell to the ground. Instead of checking on her condition he grabbed her purse and ran out of the house. The defendant got in his car and drove away without informing anyone that Mrs. Fortenberry might be injured or needed medical attention.

"These facts and circumstances give the court sufficient and credible evidence to infer that the defendant intended to kill Diane Fortenberry on May 20, 2011."

"At the very least, there is credible evidence, based on facts stated above that would support a jury verdict that the defendant is guilty of second degree intentional murder."

A sentencing hearing for Brooks had not been scheduled at the time of this printing.

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