                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0878
                                     A15-1086

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                 Paul Michael Baumchen,
                                       Appellant.

                                    Filed May 9, 2016
                                        Affirmed
                                     Connolly, Judge

                             St. Louis County District Court
               File Nos. 69HI-CR-14-590; 69HI-FA-321; 69VI-CR-14-1460


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

Mark Rubin, St. Louis County Attorney, Brian D. Simonson, Assistant County Attorney,
Hibbing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, Lauren Schoeberl (certified student attorney), St. Paul, Minnesota (for appellant)


         Considered and decided by Stauber, Presiding Judge; Connolly, Judge; and Kirk,

Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       Appellant challenges the denial of his motion to withdraw his Alford pleas. Because

the district court did not abuse its discretion in denying appellant’s motion to withdraw, we

affirm.1

                                          FACTS

       In 2014, appellant Paul Baumchen was charged with felony violation of an Order

for Protection (OFP) and with gross misdemeanor violation of a Domestic Abuse No

Contact Order (DANCO) in Virginia, MN (the Virginia charges), and with felony domestic

assault, felony terroristic threats, and gross misdemeanor interference with an emergency

call in Hibbing, MN (the Hibbing charges).

       At the plea hearing, appellant entered an Alford plea on the Virginia charges to the

gross misdemeanor violation of a DANCO, with dismissal of the felony violation of the

OFP charge; on the Hibbing charges, he entered an Alford plea to misdemeanor assault in

the fifth degree (a lesser-included offense of the felony domestic assault charge) and to

gross misdemeanor interference with an emergency call, with dismissal of the felony

terroristic threats charge. Thus, as a result of the plea agreement, appellant was sentenced

on two gross misdemeanors and a misdemeanor, rather than on the three felonies and two

gross misdemeanors with which he had been charged.



1
  Although this appeal was consolidated with an appeal from an order revoking appellant’s
probation that was filed two months later, neither party addressed the probation-revocation
issue.

                                             2
       Between the plea hearing and the sentencing hearing, appellant moved to withdraw

his Alford pleas. At the start of the sentencing hearing, his motion was argued and denied.

He challenges that denial, arguing that the district court abused its discretion in denying

his motions to withdraw because his pleas were not accurate.

                                      DECISION

       Appellant moved to withdraw his guilty pleas before he was sentenced. In that

situation, the district court must consider both the reasons for withdrawal and any prejudice

that withdrawal could cause the State. State v. Raleigh, 778 N.W.2d 90, 97 (Minn. 2010).

This court “review[s] a district court’s decision to deny a withdrawal motion for abuse of

discretion, reversing only in the ‘rare case.’” Id. (quoting Kim v. State, 434 N.W.2d 263,

266 (Minn. 1989). A valid guilty plea must be accurate, voluntary, and intelligent. State

v. Theis, 742 N.W.2d 643, 646 (Minn. 2007).

       There are two specific requirements for an Alford plea: first, “a strong factual basis,”

and second, “the defendant’s acknowledgment that the State’s evidence is sufficient to

convict.” Id. at 649. As to the first requirement,

              the better practice is for the factual basis to be based on
              evidence discussed with the defendant on the record at the plea
              hearing . . . . This discussion may occur through [1] an
              interrogation of the defendant about the underlying conduct
              and the evidence that would likely be presented at trial; [2] the
              introduction at the plea hearing of witness statements or other
              documents, or the presentation of abbreviated testimony from
              witnesses likely to testify at trial; or [3] a stipulation by both
              parties to a factual statement in one or more documents
              submitted to the court at the plea hearing.

Id. (citations omitted). As to the second requirement,



                                              3
              [t]he best practice . . . is to 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 of the offense to which he is pleading guilty . . . .

Id. A thorough examination of the transcript here indicates that, although the district court

did not abuse its discretion in finding that the two requirements of an Alford plea had been

substantially complied with, the best practices were not followed.

       In regard to the Hibbing charges, the factual basis and appellant’s acknowledgment

that the state’s evidence could lead to a guilty verdict were established simultaneously by

the district court’s questioning of appellant. The district court questioned appellant not

about what he had done but about what a jury could find.

              Q.     Is it fair to say that a jury could find here, based on the
                     evidence that is here, that you . . . actually assaulted [the
                     victim]? There is evidence here that you grabbed him
                     by the neck and so forth. In one place it says that you
                     bit his ear.
                              I am not asking you to agree that that’s true but I
                     am asking you to agree that a jury could find you
                     actually guilty of a Felony Domestic Assault and you
                     don’t want to take that risk, so you agree that a jury
                     could at least find you guilty of what could be
                     considered a lesser included Misdemeanor Fifth Degree
                     Assault.
              A.     Yeah, . . . allegedly there is some similar altercation[.]
                     I’m just gonna like plead . . .
              Q.     [You] physically contacted him in a way that could meet
                     the legal definition of intentional infliction of bodily
                     harm upon him?
              A.     . . . [Y]eah, I am pleading guilty.
              Q.      [A] jury could believe that. . . . [And s]omebody . . .
                     attempted to . . . call the police and the complaint
                     indicates that you interfered with that call? . . .
                     Would you agree that a jury could find that you
                     interfered with [the victim’s] attempt to call 911?


                                              4
             A.     I am going to plead guilty to that[, S]ir. Something
                    happened to the phone.
             Q.     Yeah. So you agree with what I just said.
             A.     Yeah ---
             Q.     A jury could find you guilty of that?
             A.     Yeah, they could possibly –yes, yes.
             Q.     . . . [I]t is not just taking somebody’s phone away – it is
                    . . . where they had a good reason to call, an emergency,
                    and . . . you disrupted or interfered with that. A jury
                    could find you guilty of that and you don’t want to take
                    that risk?
             A.     I would hate to take the chance. I would rather just
                    plead guilty . . . .

Thus, as to the Hibbing charges, the factual basis for them was established and appellant

agreed that, based on the evidence, a jury could find him guilty. The district court then

questioned appellant about the Virginia charges.

             Q.     . . . [I]n Virginia . . . [on] October 7th, . . . you got
                    charged with violation of a Domestic Abuse No Contact
                    order[,] a gross misdemeanor. Do you understand that
                    charge?
             A.     Yeah.
             Q.      How do you plead?
             A.     Um – guilty.
             ....
             Q.     Right, so there was a DANCO in place on October 7th?
             A.     Yes.
             Q.     And [the victim] called the police and said that you
                    violated that order by contacting her . . . .
                    [Y]ou made contact and violated the order. Do you
                    agree with that?
             A.     Apparently but I would just rather plead guilty, so I
                    don’t have . . .
             Q.     You could be found guilty and ---
             A.     Yes.
             Q.     [Y]ou want to get the benefit of this whole plea
                    agreement. You agree there was a No Contact Order
                    and also there was a prior domestic violence conviction
                    that you had in 2007. And so, under the circumstances



                                             5
                     here this was a gross misdemeanor crime that you are
                     pleading guilty here to today, right?
              A.     I understand that, yes.

       Again, the transcript indicates that appellant both admitted the factual basis and

acknowledged the risk that a jury could find him guilty. However, acknowledging the risk

is not enough. Theis, 742 N.W.2d at 650 (“In the context of an Alford plea, where a

defendant maintains his innocence, the defendant’s acknowledgment that there is a risk

that he could be convicted does not meet [our] standard for accuracy . . . .”). Moreover,

“[t]he best practice for ensuring [an accurate plea] is to 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. at 649 (emphasis added). This practice was never followed: the

phrase “reasonable doubt” does not appear in the transcript.

       Appellant’s attorney did not specify whether he was referring to the Virginia

charges or the Hibbing charges or both when he questioned appellant.

              Q.     Now you are denying that in fact you did some of this
                     stuff or at least you are not in agreement with some of
                     the facts alleged in the police reports and the complaint,
                     correct?
              A.     Yes.
              Q.     But you agree that if the matter went to a jury trial and
                     if the state called the witnesses that they intend to call
                     and if they testified consistent with the police report that
                     a jury could in fact believe the state’s version of events
                     and there would be significant evidence compelling
                     enough to find you guilty? I am not saying that that is
                     the way it is going to go but it is [a] possible outcome,
                     correct?
              A.     Yeah that’s right.



                                              6
              Q.     And . . . as a result of this [plea,] you are getting the
                     benefit of the agreement. Namely, you are getting three
                     felony charges dismissed, correct?
              A.     Yes that is true.
              Q.     One of them, if not both of them, would call for a
                     presumptive commit to prison, correct?
              A.     Right.
              Q.     . . . [B]y going forward in this fashion here today . . .
                     you are getting the benefit of the agreement and this is
                     in your best interest, . . . correct?
              A.     Yeah. I would rather not take chances on my life and
                     ---
              Q.     Right. . . . [Y]ou don’t want [to] risk going back to
                     prison here. And this not only keeps you out of prison
                     but gets rid of . . . potential[ly] three felony convictions,
                     correct?
              A.     Correct.
              Q.     And so you are acknowledging to the court that the court
                     can utilize the police reports for additional findings of
                     fact to support the plea of guilty here today?
              A.     Right.

(Emphasis added.) Again, there was no reference to the jury finding appellant guilty using

a reasonable-doubt standard. Nor did the prosecutor refer to the reasonable-doubt standard

when he questioned appellant: he asked appellant (1) if he understood that, if he were tried

on the charges, the victims and some officers would testify and (2) if he agreed that the

plea agreement was in his best interest and wanted the court to accept it. Appellant

answered that he understood and agreed.

       Taken with the police report for the Hibbing charges and the complaint for the

Virginia charges, the transcript reflects that the requirements Theis sets out for Alford pleas

were met, but just barely: the factual support for both sets of charges were established, and

appellant agreed that, based on this evidence, a jury would convict him. But a reviewing

court should not have to jump around the transcript of an Alford plea hearing and other


                                              7
documents to determine whether the Alford plea requirements have been met: if the best

practices set out in Theis are followed, a reviewing court will be able to find readily the

defendant’s version of the factual basis for each charge and the defendant’s

acknowledgment that the state’s evidence on each charge is sufficient for a jury, using the

reasonable-doubt standard, to convict. In the future, that is what we expect to see.

       Affirmed.




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