                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A13-2014

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                               Samuel Wayne Behrens, Jr.,
                                      Appellant.

                               Filed September 15, 2014
                                       Affirmed
                                     Willis, Judge

                              Benton County District Court
                                File No. 05-CR-13-594


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

Philip K. Miller, Benton County Attorney, Foley, Minnesota; and Scott A. Hersey,
Special Assistant County Attorney, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Willis,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

WILLIS, Judge

       Appellant Samuel Wayne Behrens, Jr. challenges the district court’s denial of his

motion to withdraw his plea of guilty to a charge of second-degree criminal sexual

conduct, arguing that his plea was not accurate, voluntary, or intelligent. We affirm.

                                         FACTS

       On April 8, 2013, respondent State of Minnesota charged Behrens with first- and

second-degree criminal sexual conduct after R.M.D., a four-year-old child, reported to

authorities that Behrens had sexually abused her.

       On May 30, Behrens entered an Alford plea to second-degree criminal sexual

conduct in exchange for dismissal of the charge of first-degree criminal sexual conduct

and a sentence of 36 months, stayed, with supervised probation for 25 years. Behrens

also was required to register as a sex offender.         Behrens signed a plea petition

acknowledging that he was represented by counsel, that he had sufficient time to discuss

the case and any possible defenses to the charges with his attorney, and that he was

satisfied that his attorney had represented his interests and fully advised him. Behrens

also waived his trial rights.

       At the plea hearing, defense counsel questioned Behrens about his understanding

of the plea petition, and Behrens agreed that they had thoroughly reviewed the petition.

When defense counsel noted that Behrens had stated in the plea petition that he had a

history of mental-health issues and asked Behrens what those issues were, Behrens

replied that he had attention-deficit disorder (ADD). Behrens stated that it did not affect


                                             2
his ability to understand or to participate in the hearing and that his mind was “free and

clear.” Behrens also testified that he was not then taking any medications.

       Defense counsel also questioned Behrens about his understanding of the charge

and the evidence against him.       Behrens stated that he had read the complaint and

understood the charge that he was pleading guilty to, and he admitted that he had had

contact with R.M.D. Defense counsel also asked Behrens:

              [Q:] And having read through the police reports and the
              statements and also having discussed those matters with me,
              is it fair to say and true that you believe that there is a
              substantial likelihood that if you did proceed to trial on both
              counts in the [c]omplaint that the jury could and probably
              would find you guilty based on the evidence assuming
              [R.M.D.] did testify consistently with her statements?
              [A:] Correct.
              [Q:] And based upon that is it your desire then to plead guilty
              and take advantage of the [p]lea [a]greement in this case?
              [A:] Yes.

The state requested that the district court admit a narrative police report to support the

Alford plea, and Behrens did not object. The district court accepted the police report,

took judicial notice of the allegations in the complaint, and found that there was an

adequate factual basis to accept Behrens’s Alford plea.

       Before sentencing, Behrens moved to withdraw his guilty plea on the ground that

his plea was not voluntary because he accepted the plea agreement only to get medical

treatment for his ADD and anxiety. At the sentencing hearing, the district court denied

Behrens’s motion and noted on the record that Behrens displayed the same demeanor at

the sentencing hearing that he had at the plea hearing. The district court also stated that it




                                              3
doubted Behrens’s credibility because the examiners who conducted the psychosexual

assessment and presentence investigation found him to be untruthful in his responses.

       In accordance with Behrens’s plea agreement, the district court stayed imposition

of a 36-month sentence, placed him under supervised probation for 25 years, and ordered

him to register as a sex offender. This appeal follows.

                                     DECISION

I.     It Is Not Necessary to Allow Behrens to Withdraw His Guilty Plea to Correct
       a Manifest Injustice.

       The validity of a guilty plea is a question of law, which this court reviews de novo.

State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). Minn. R. Crim. P. 15.01, subd. 1,

states in relevant part that “[t]he court must allow a defendant to withdraw a plea of

guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is

necessary to correct a manifest injustice.” A guilty plea is invalid and manifestly unjust

if it is not accurate, voluntary, and intelligent. Raleigh, 778 N.W.2d at 93-94.

       For a guilty plea to be accurate, a proper factual basis must be established. State v.

Ecker, 524 N.W.2d 712, 716 (Minn. 1994). A defendant who enters an Alford plea

maintains his innocence but pleads guilty because the record establishes, and the

defendant reasonably believes, that the state has sufficient evidence to obtain a

conviction. Id. (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, 761 (Minn. 1977) (recognizing

Alford pleas in Minnesota). Behrens challenges only the accuracy of his guilty plea. The

accuracy requirement protects the “defendant from pleading guilty to a more serious



                                             4
offense than he could be convicted of were he to insist on his right to trial.” State v.

Trott, 338 N.W.2d 248, 251 (Minn. 1983). “[C]areful scrutiny of the factual basis for the

plea is necessary within the context of an Alford plea because of the inherent conflict in

pleading guilty while maintaining innocence.” State v. Theis, 742 N.W.2d 643, 648-49

(Minn. 2007).

       In Theis, the Minnesota Supreme Court held that the district court erred by

accepting the defendant’s Alford plea to a charge of fifth-degree criminal sexual conduct

because the defendant did “not address any of the facts regarding the underlying criminal

conduct” at the plea hearing and acknowledged only that “there was a mere ‘risk’ that he

would be found guilty of the crime to which he was pleading guilty.” Id. at 650. The

record also contained no other basis on which the district court could conclude that the

evidence supporting the allegations would lead a jury to convict the defendant for the

offense, in light of his claim of innocence. Id.

       The supreme court observed that an Alford plea satisfies constitutional

requirements when “the [s]tate demonstrate[s] a strong factual basis for the plea and the

defendant clearly expresse[s] his desire to enter the plea based on his belief that the

[s]tate’s evidence would be sufficient to convict him [beyond a reasonable doubt].” Id. at

647 (quotation omitted). The “better practice” for establishing an adequate factual basis

for an Alford plea is “based on evidence discussed with the defendant on the record at the

plea hearing.” Id. at 649. This discussion may occur through interrogations of the

defendant about the underlying conduct, introduction of witness statements or

abbreviated witness testimony, or a stipulation to the facts. Id.


                                              5
      Behrens argues that his Alford plea was not accurate because the district court did

not discuss with him at the plea hearing how the state’s evidence satisfied each statutory

element of the offense to which he offered the Alford plea. We disagree. Here, Behrens

not only acknowledged on the record that he had reviewed and discussed with his

attorney the state’s evidence that would be introduced at trial, but he failed to object to

the state’s submission of a narrative police report to the district court to support the

Alford plea. The plea process conformed to the “better practice” described in Theis

because Behrens stipulated on the record to facts in the police report regarding the

underlying conduct. See id. Moreover, an adequate factual basis is established by the

full record, which also includes the allegations of the complaint, of which the district

court took judicial notice. See Trott, 338 N.W.2d at 252.

      Both the complaint and police report recite facts that, if supported by evidence at

trial, satisfy the elements of second-degree criminal sexual conduct. A person commits

second-degree criminal sexual conduct by engaging in sexual contact with another person

when the victim is under 13 years of age and the actor is more than 36 months older than

the victim. Minn. Stat. § 609.343, subd. 1(a) (2012). The complaint alleges that R.M.D.

was four years old and Behrens was 22 years old when the offense occurred. The police

report summarizes witness statements that show there was sufficient evidence for a jury

to find that Behrens sexually abused R.M.D. The report describes detailed statements

that R.M.D. gave to a police officer and to her daycare provider, in which she reported

that Behrens removed her clothing, touched her breasts and vagina, put his fingers in her




                                            6
vagina, and put his penis in her mouth. These statements provide a sufficient factual

basis to support the Alford plea.

       Despite Behrens’s claim of innocence, he acknowledged that, based on the

allegations of the complaint and the statements in the police reports, there was a

substantial likelihood that evidence at trial would support a finding of guilty on both

counts. Coupling Behrens’s acknowledgement with the strong factual basis for his plea,

the district court was able to conclude independently that there was a strong probability

that Behrens would be found guilty of second-degree criminal sexual conduct, despite his

claim of innocence. See Theis, 742 N.W.2d at 649. Thus, the district court did not err in

concluding that Behrens’s plea was accurate.

II.    It Is Not Necessary to Allow Behrens to Withdraw His Guilty Plea Under the
       Fair-and-Just Standard.

       A district court may grant a defendant’s motion to withdraw a guilty plea before

sentencing “if it is fair and just to do so.” Minn. R. Crim. P. 15.05, subd. 2. “The ‘fair

and just’ standard requires district courts to give ‘due consideration’ to two factors:

(1) the reasons a defendant advances to support withdrawal and (2) prejudice granting the

motion would cause the [s]tate given reliance on the plea.” Raleigh, 778 N.W.2d at 97.

A defendant bears the burden of advancing reasons to support withdrawal. Kim v. State,

434 N.W.2d 263, 266 (Minn. 1989). Appellate courts review a district court’s decision to

deny a withdrawal motion for an abuse of discretion and reverse only in the “rare case.”

Id.




                                            7
      No defendant may plead guilty to a crime if he is incompetent to stand trial

because of mental illness. Minn. Stat. § 611.026 (2012). “[I]n addition to evidence of

irrational behavior, any prior medical opinion on competence and the defendant’s

demeanor also are relevant when a court determines whether there is a reason to doubt a

defendant’s competence.” Bonga v. State, 797 N.W.2d 712, 720 (Minn. 2011).

      Behrens argues that his Alford plea was involuntary because he pleaded guilty

only to get medical treatment for his ADD and anxiety.           Behrens claims that his

depression and anxiety worsened while he was in custody and that the jail staff believed

that he was suicidal, but they offered no mental-health medication or counseling. In

support of his claims, Behrens points out that the psychosexual assessment concluded

that he suffered from a personality disorder, his ability to process information was

significantly below average, and his mental health was precarious.

      We conclude that Behrens failed to provide a valid reason why withdrawal of his

plea would be “fair and just.” See Raleigh, 778 N.W.2d at 97. Behrens’s claims are

contradicted by the fact that he asserted at the plea hearing that his ADD diagnosis did

not affect his ability to understand or participate in the hearing, that his mind was “free

and clear,” and that he was not then taking any medications. See State v. Lopez, 379

N.W.2d 633, 638 (Minn. App. 1986) (affirming denial of a motion to withdraw a plea

based in part on the district court’s credibility determination that the defendant was

adequately informed of his rights, despite the defendant’s contradictory statements made

at the plea hearing and the plea-withdrawal hearing), review denied (Minn. Feb. 14,

1986). The fact that neither party requested that Behrens undergo a rule 20 examination


                                            8
also supports the district court’s finding that he was mentally competent at the plea

hearing. See Bonga, 797 N.W.2d at 718. Because the district court concluded that

Behrens failed to advance a credible reason to support withdrawal of his plea, it was not

required to consider whether the state would be prejudiced. See Raleigh, 778 N.W.2d at

98.

      This court will not consider Behrens’s claim that his lack of experience with

Minnesota courts rendered his plea to be unintelligent and therefore invalid because he

failed to raise this claim before the district court. See Roby v. State, 547 N.W.2d 354,

357 (Minn. 1996) (holding that generally an appellate court will not consider matters not

argued to and considered by the district court). We conclude that the district court did

not abuse its discretion by denying Behrens’s motion to withdraw his Alford plea.

      Affirmed.




                                           9
