State of Minnesota v. Kevin Trent Johnson , 2015 Minn. App. LEXIS 51 ( 2015 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1605
State of Minnesota,
Respondent,
vs.
Kevin Trent Johnson,
Appellant.
Filed June 29, 2015
Affirmed
Johnson, Judge
St. Louis County District Court
File No. 69DU-CR-13-3102
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, F. Richard Gallo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Johnson,
Judge.
SYLLABUS
When accepting a Norgaard guilty plea, a district court should assure itself that
there is a strong probability that the defendant would be found guilty of the crime to
which he is pleading guilty but need not make an express finding on the record to that
effect.
OPINION
JOHNSON, Judge
Kevin Trent Johnson pleaded guilty to felony domestic assault by strangulation.
At the plea hearing, he said that he could not remember the incident for which he was
charged. But he agreed, based on his review of the police reports, that the state’s
evidence likely would persuade a jury to find him guilty. On direct appeal, Johnson
argues that the district court erred by not making an express finding of fact on the record
that there is a strong probability that he would be found guilty of the crime to which he
pleaded guilty. We conclude that the district court did not have a duty to make such an
express finding on the record and, therefore, affirm.
FACTS
On the evening of July 25, 2013, Johnson and his former girlfriend, T.L., were at
his apartment in Duluth. Johnson questioned T.L. about an incident involving a mutual
acquaintance, which caused Johnson to become upset. When T.L. went to the bathroom,
Johnson followed her, grabbed her by the throat with one hand, and squeezed. After he
let go, he apologized and asked her to stay at the apartment.
T.L. contacted police and accused Johnson of attacking and strangling her. Three
officers went to the apartment to investigate. According to the police report, T.L. told the
officers that she attempted to scream but could not do so because she was losing her
breath. She also said that her vision was affected in that she began to see white dots or
“fuzzies.” In addition, she said that she felt that she would die that night. An officer took
photographs of a red mark on T.L.’s neck. Officers attempted to interview Johnson, but
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he experienced a medical emergency related to heart problems and diabetes and was
taken to a hospital.
The state charged Johnson with felony domestic assault by strangulation, in
violation of Minn. Stat. § 609.2247, subd. 2 (2012), and misdemeanor domestic assault,
in violation of Minn. Stat. § 609.2242, subd. 1(2) (2012). In March 2014, Johnson
pleaded guilty to the first charge. At the plea hearing, Johnson’s counsel questioned him
about the incident, to the extent possible. Johnson said that he did not remember much
about the incident because of his medical emergency. The remainder of the plea colloquy
is as follows:
Q. [Y]ou have had the opportunity to look at all of
the reports; is that correct?
A. Yes.
Q. And you know that [T.L.] is saying that you had
strangled her, correct; that’s what she is saying?
A. Correct.
....
Q. You would be willing to allow the Judge to rely
on these reports for the rest of the factual basis; is that
correct?
A. Yes.
DEFENSE COUNSEL: I have no further questions.
THE COURT: Would you agree that if the fact finder,
whether that was me or a jury, if we were in a trial and the
prosecution called witnesses who would testify to what is in
those police reports about what happened that night at your
residence, that applying the presumption of innocence and
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burden of proof beyond a reasonable doubt, if all that
information came out, that you would be convicted of that
Domestic Assault By Strangulation?
THE DEFENDANT: Yes.
....
THE COURT: I will accept your plea of guilty, then,
on Count I, [and] dismiss Count II.
In May 2014, the district court imposed a sentence of 21 months of imprisonment, stayed
the sentence, and placed Johnson on probation for three years. Johnson appeals.
ISSUE
Did the district court err by accepting Johnson’s Norgaard guilty plea without
making an express finding on the record that there is a strong probability that he would be
found guilty of the crime to which he pleaded guilty?
ANALYSIS
Johnson argues that the district court erred by accepting his guilty plea without
making a finding concerning the adequacy of the factual basis for the plea. Johnson did
not present this argument to the district court before entry of judgment. Nonetheless, the
caselaw permits him to make the argument for the first time on direct appeal from his
conviction and sentence. The supreme court has stated that, “by pleading guilty, a
defendant does not waive the argument that the factual basis of his guilt was not
established.” State v. Iverson, 664 N.W.2d 346, 350 (Minn. 2003). Accordingly, “a
defendant is free to simply appeal directly from a judgment of conviction and contend
that the record made at the time the plea was entered is inadequate” to establish the
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requirements of a valid guilty plea. Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).
Thus, we consider Johnson’s argument even though he did not present it to the district
court.
A guilty plea is valid if it is “accurate, voluntary and intelligent.” State v. Ecker,
524 N.W.2d 712, 716 (Minn. 1994) (citing State v. Trott, 338 N.W.2d 248, 251 (Minn.
1983)). As the supreme court has explained,
The main purpose of the accuracy requirement is to protect a
defendant from pleading guilty to a more serious offense than
he could be convicted of were he to insist on his right to
trial. . . . The purpose of the voluntariness requirement is to
insure that the defendant is not pleading guilty because of
improper pressures. The purpose of the requirement that the
plea be intelligent is to insure that the defendant understands
the charges, understands the rights he is waiving by pleading
guilty, and understands the consequences of his plea.
Trott, 338 N.W.2d at 251. If a guilty plea fails to meet any of these three requirements,
the plea is invalid. State v. Theis, 742 N.W.2d 643, 650 (Minn. 2007). This court applies
a de novo standard of review when determining the validity of a guilty plea. State v.
Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).
Johnson’s argument implicates the accuracy requirement. A guilty plea is
inaccurate if it is not supported by a proper factual basis. Ecker, 524 N.W.2d at 716. A
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.’” Iverson,
664 N.W.2d at 349 (quoting Kelsey v. State, 298 Minn. 531, 532, 214 N.W.2d 236, 237
(1974)). The adequacy of the factual basis usually is established by questioning the
defendant to prompt him to explain the “circumstances surrounding the crime.” Williams
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v. State, 760 N.W.2d 8, 12 (Minn. App. 2009) (quoting Ecker, 524 N.W.2d at 716),
review denied (Minn. Apr. 21, 2009). In two circumstances, however, “a factual basis
must be established by other means: when a defendant enters an Alford/Goulette plea and
when a defendant enters a Norgaard plea.” Id. A defendant enters an Alford/Goulette
plea if he maintains his innocence but “reasonably believes, and the record establishes,
the state has sufficient evidence to obtain a conviction.” Ecker, 524 N.W.2d at 716
(citing North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)); see also
State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977). A defendant enters a Norgaard
plea if he “claims a loss of memory, through amnesia or intoxication, regarding the
circumstances of the offense” but the record establishes that “the defendant is guilty or
likely to be convicted of the crime charged.” Ecker, 524 N.W.2d at 716; see also State ex
rel. Norgaard v. Tahash, 261 Minn. 106, 112-14, 110 N.W.2d 867, 871-72 (1961).
In either an Alford/Goulette plea or a Norgaard plea, the factual basis of the plea is
not established by the defendant’s admissions to the facts alleged in the complaint. In
fact, an Alford/Goulette plea “is actually contradicted by his claim of innocence.” Theis,
742 N.W.2d at 649; see also Williams, 760 N.W.2d at 12. Rather, in an Alford/Goulette
plea, an adequate factual basis exists if the defendant “agrees that evidence the State is
likely to offer at trial is sufficient to convict.” Theis, 742 N.W.2d at 649. In establishing
that factual basis, a district court should “have the defendant specifically acknowledge on
the record at the plea hearing that the evidence the State would likely offer against him is
sufficient for a jury, applying a reasonable doubt standard, to find the defendant guilty.”
Id. The defendant’s statements allow the district court to “independently conclude that
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there is a strong probability that the defendant would be found guilty of the charge to
which he pleaded guilty.” Id. (emphasis omitted). The means of ensuring the factual
basis of an Alford/Goulette plea are essentially the same as the means of ensuring the
factual basis of a Norgaard plea. See Williams, 760 N.W.2d at 12-13 (noting that
supreme court in Theis relied on Norgaard precedent to clarify Alford/Goulette accuracy
standard).1
Johnson contends that the district court erred on the ground that it did not “give
scrutiny to the factual basis” of his plea and “never determined . . . [whether he] would
likely be convicted if the matter went to trial.” Johnson relies on Theis, which stated that
a “strong factual basis and the defendant’s agreement that the evidence is sufficient to
support his conviction provide the court with a basis to independently conclude that there
is a strong probability that the defendant would be found guilty of the charge to which he
pleaded guilty.” 742 N.W.2d at 649 (emphasis omitted). Johnson’s contention implies
that a district court has a duty, when accepting a Norgaard plea, to make an express
finding, on the record, that “there is a strong probability that the defendant would be
found guilty of the charge to which he pleaded guilty.” See id.
Johnson does not cite any authority for the proposition that a district court has a
duty to make an express finding on that issue, and we are unaware of any such authority.
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Johnson refers to the plea that he entered as an Alford/Goulette plea. The state
asserts that he entered a Norgaard plea. Because Johnson’s inability to admit the
allegations in the complaint is due to his lack of recollection, his plea is properly deemed
a Norgaard plea. See Norgaard, 261 Minn. at 112-114, 110 N.W.2d at 871-72. In any
event, the caselaw indicates that the same standard applies to either type of guilty plea.
See Williams, 760 N.W.2d at 12-13.
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A district court’s obligation is to “ensure that an adequate factual basis has been
established in the record.” Ecker, 524 N.W.2d at 716; see also Theis, 742 N.W.2d at 647;
Trott, 338 N.W.2d at 251-52; Williams, 760 N.W.2d at 12-13. If the factual basis of a
guilty plea is challenged on direct appeal, this court conducts a de novo review by
reviewing the record of the plea hearing, which should reveal the factual basis. See
Raleigh, 778 N.W.2d at 94; Brown, 449 N.W.2d at 182. The statement in Theis
concerning what a district court must “independently conclude” indicates merely that a
district court must assure itself that the accuracy standard is satisfied. See Theis, 742
N.W.2d at 649; State v. Russell, 306 Minn. 274, 274, 236 N.W.2d 612, 613 (1975)
(stating that district court may not accept guilty plea “unless it is first satisfied that,
among other things, the plea is supported by an adequate factual basis”). There is no
suggestion in the caselaw that a district court, as a routine matter when accepting a
Norgaard plea, must make an express finding that “there is a strong probability that the
defendant would be found guilty of the charge to which he pleaded guilty.” See Theis,
742 N.W.2d at 649.
Likewise, there is no suggestion in the rules of criminal procedure that a district
court must make an express finding on the record concerning the adequacy of the factual
basis of every Norgaard plea. The applicable rule describes in detail the procedures that
a district court must follow when accepting a guilty plea in a felony case. See Minn. R.
Crim. P. 15.01, subd. 1. The rule provides, “The defendant must state the factual basis
for the plea.” Minn. R. Crim. P. 15.01, subd. 1(8). But the rule does not provide that the
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district court must make an express finding concerning the adequacy of the factual basis
of the plea. See Minn. R. Crim. P. 15.01, subd. 1.
We note that a person who has pleaded guilty has an opportunity to ask the district
court to make an express finding concerning the accuracy of his guilty plea. A person
may do so by filing a motion to withdraw the plea, either before or after sentencing. See
Minn. R. Crim. P. 15.05, subds. 1 & 2. A person could seek such relief in a post-
conviction petition, so long as the petition is filed within the two-year limitations period.
See Minn. Stat. § 590.01, subd. 4(a) (2014); Lussier v. State, 821 N.W.2d 581, 586 & n.2
(Minn. 2012). After the filing of such a motion or petition, a district court would be
obligated to make an express finding concerning the accuracy of the plea, if the accuracy
issue were raised. See, e.g., Butala v. State, 664 N.W.2d 333, 340-41 (Minn. 2003).
Johnson contends that the district court erred by not making a finding that never was
requested. The opportunity to request an express finding concerning the validity of a
guilty plea tends to explain why such a finding is not required in every case. In the
absence of a specific requirement in the rules of criminal procedure or in the caselaw, we
decline to impose a requirement that, in every Norgaard guilty plea, the district court
must make an express finding on the record that there is a strong probability that the
defendant would be found guilty of the crime to which he is pleading guilty.
DECISION
The district court did not err when it accepted Johnson’s Norgaard guilty plea.
Affirmed.
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