                          This opinion will be unpublished and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
                                     A13-1974

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Moses Gum Benjamin,
                                      Appellant.

                                Filed December 22, 2014
                                Reversed and remanded
                                    Schellhas, Judge

                             Olmsted County District Court
                               File No. 55-CR-12-6676

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica Surges Shacka,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

SCHELLHAS, Judge

         Because appellant did not acknowledge on the record that the evidence is

sufficient for a jury, applying a reasonable-doubt standard, to find him guilty, and
because the record does not reflect that the district court independently concluded that a

strong probability exists that appellant would be found guilty of the charge of second-

degree assault with a dangerous weapon, we reverse appellant’s conviction and remand

for further proceedings.

                                          FACTS

       In response to a dispatched report of assault, police arrived at F.A.A.’s residence

where F.A.A. told them that appellant Moses Gum Benjamin entered her residence

without her consent, argued with her, and refused to leave without his children. Benjamin

did not reside with F.A.A. but is the father of her children. F.A.A. reported that Benjamin

picked up a large kitchen knife and stated, “I can finish this right now. I’m serious. I will

finish this right now.” F.A.A. also reported that Benjamin walked toward her until his

chest was touching her chest and his hand in which he held the knife was touching her.

When a ringing telephone distracted Benjamin, F.A.A. ran out of the house with the

children. Respondent State of Minnesota charged Benjamin with three counts of first-

degree burglary, one count of second-degree assault with a dangerous weapon, one count

of terroristic threats, and one count of domestic assault.

       At a plea hearing, Benjamin waived his right to a trial and entered an Alford plea

to the charge of second-degree assault with a dangerous weapon in exchange for

dismissal of the other charges. Benjamin affirmed that he was entering his plea freely and

voluntarily, that he was given enough time to talk with his attorney, and that he

understood that his plea could result in immigration consequences. While maintaining his

innocence, Benjamin affirmed that he was accepting the state’s plea offer because it


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would result in a better outcome for him than was likely if the case was taken to trial. The

prosecutor questioned Benjamin about the factual basis for the Alford plea as follows:

              THE PROSECUTOR: Mr. Benjamin, you understand that the
              police reports include information that [F.A.A.] reported to
              the police?
              BENJAMIN: I understand. But there’s a lot of them are not
              correct.
              THE PROSECUTOR: That you disagree with that?
              BENJAMIN: Yeah, right.
              THE PROSECUTOR: But among the things she told the
              police is that you did not have her consent to come over to the
              house?
              BENJAMIN: Right.
              THE PROSECUTOR: And you understand that entering
              without consent and committing the assault that you’re
              alleged to have committed would constitute burglary in the
              first degree?
              BENJAMIN: Right.
              THE PROSECUTOR: And if [F.A.A.] testified at trial
              consistent with the report that she gave to the police, there’s a
              substantial likelihood a jury would find you guilty of first
              degree burglary?
              BENJAMIN: Right.
              THE PROSECUTOR: And you also—you mentioned a
              couple times that she had also reported that there was a knife
              involved?
              BENJAMIN: There was no knife. That was made out, sir.
              THE PROSECUTOR: You understand that’s what she
              reported to the police?
              BENJAMIN: Right.
              THE PROSECUTOR: And that it would be enough evidence
              that a jury could convict you of what you’re pleading guilty
              to, which is a second degree assault?
              BENJAMIN: Right.

(Emphasis added.)

       The district court accepted Benjamin’s plea to second-degree assault and

dismissed the other charges. A few days after the plea hearing, the prosecutor submitted



                                             3
copies of the police reports to the district court, stating that they were being sent “to

support the factual basis for this plea.” Before sentencing, Benjamin moved to withdraw

his plea, claiming that he had changed his mind about pleading and expressing

dissatisfaction with his attorney’s representation. He professed his innocence and argued

that allowing his plea withdrawal would be fair and just. The district court denied the

motion and sentenced Benjamin. This appeal follows.

                                    DECISION

      On appeal, Benjamin challenges the accuracy of his Alford plea. He did not argue

this ground for withdrawal in district court when he moved for permission to withdraw

his plea. “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 requirements of a valid plea. Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989). We

review the validity of a plea de novo. See Lussier v. State, 821 N.W.2d 581, 588 (Minn.

2012) (“Whether a plea is valid is a question of law which we review de novo.”).

      A Proper Factual Basis

      A valid plea is one that is accurate, voluntary, and intelligent. State v. Trott, 338

N.W.2d 248, 251 (Minn. 1983). “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.” Id. To be accurate, a plea must be

supported by a “proper factual basis,” and the district court has the responsibility to

ensure that a proper factual basis is established. State v. Ecker, 524 N.W.2d 712, 716

(Minn. 1994). A proper factual basis exists when “sufficient facts on the record . . .


                                            4
support a conclusion that [the] 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) (quotation

omitted).

       Here, Benjamin entered an Alford plea. See North Carolina v. Alford, 400 U.S. 25,

37–38, 91 S. Ct. 160, 167−68 (1970) (holding constitutional court’s acceptance of

defendant’s guilty plea, even though defendant maintained his innocence, where state

demonstrated strong factual basis for plea and defendant clearly expressed his desire to

enter plea based on overwhelming evidence against him); see also State v. Goulette, 258

N.W.2d 758, 760 (Minn. 1977) (permitting the acceptance of Alford pleas “if the court,

on the basis of its interrogation of the accused and its analysis of the factual basis offered

in support of the plea, reasonably concludes that there is evidence which would support a

jury verdict of guilty and that the plea is voluntarily, knowingly, and understandingly

entered”).

       “[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). An Alford plea

“requires a strong factual basis.” Id. at 649 (emphasis added). “[T]he defendant’s

acknowledgment that the State’s evidence is sufficient to convict is critical to the court’s

ability to serve the protective purpose of the accuracy requirement.” Id. In Theis, the

supreme court enunciated a “best practice” for ensuring a defendant this protection:

              The 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


                                              5
              for a jury, applying a reasonable doubt standard, to find the
              defendant guilty of the offense to which he is pleading guilty,
              as was done in both Goulette and Ecker.

                     The 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,
              notwithstanding his claims of innocence. In such a
              circumstance, the court can ensure that an Alford plea meets
              the accuracy prong.

Id. (citation omitted).

       In this case, Benjamin offered an Alford plea to second-degree assault with a

dangerous weapon. See Minn. Stat. § 609.222, subd. 1 (2012) (stating that a person is

guilty of second-degree assault if he or she “assaults another with a dangerous weapon”).

“Assault” is defined as “an act done with intent to cause fear in another of immediate

bodily harm or death” or “the intentional infliction of or attempt to inflict bodily harm

upon another.” Minn. Stat. § 609.02, subd. 10 (2012). “Dangerous weapon” is defined to

include a “device or instrumentality that, in the manner it is used or intended to be used,

is calculated or likely to produce death or great bodily harm.” Id., subd. 6 (2012).

       Although Benjamin agreed, when questioned by the prosecutor, that “if [F.A.A.]

testified at trial consistent with the report that she gave to the police, there’s a substantial

likelihood a jury would find [him] guilty of first degree burglary,” he did not offer an

Alford plea to first-degree burglary—he offered an Alford plea to second-degree assault

with a dangerous weapon. No one asked Benjamin, and he never specifically

acknowledged on the record at the plea hearing, “that the evidence the State would likely



                                               6
offer against him is sufficient for a jury, applying a reasonable doubt standard, to find

[him] guilty of the offense to which he [wa]s pleading guilty.” See Theis, 742 N.W.2d at

649. During his plea colloquy, Benjamin merely agreed with the prosecutor that “it would

be enough evidence that a jury could convict [him] of what [he was] pleading guilty to,

which [was] a second degree assault.” (Emphasis added.) Cf. id. at 650 (concluding that

Alford plea was invalid when defendant “acknowledged that there was a mere ‘risk’ that

he would be found guilty of the crime to which he was pleading guilty” and did nothing

“to affirm that the evidence supporting the[] allegations would lead a jury to find him

guilty”). We conclude that the facts contained in Benjamin’s plea colloquy are

insufficient to establish a strong factual basis for the Alford plea to second-degree assault

with a dangerous weapon and that Benjamin’s plea is invalid because the facts are

insufficient to fulfill the accuracy requirement. See id. at 649 (“An Alford plea is not

supported by the defendant’s admission of guilt, and is actually contradicted by his claim

of innocence; precedent therefore requires a strong factual basis for an Alford plea.”).

       The state contends that a proper factual basis is established through the complaint

and the police reports. A court may consider the facts alleged in a criminal complaint in

determining whether a plea contains an adequate factual basis. See Trott, 338 N.W.2d at

252 (stating that record contained a copy of the complaint and “defendant, by his plea of

guilty, in effect judicially admitted the allegations contained in the complaint”). But, in

Trott, in concluding that a sufficient factual basis supported Trott’s plea, the supreme

court stated that “[t]he record also contains pictures of the victim’s injuries taken at the

hospital following the beating. Moreover, the trial judge carefully interrogated the


                                             7
defendant about the acts, and the defendant freely admitted that he had beaten the boy for

up to 10 minutes.” Id. In this case, the record contains no indication that Benjamin agreed

that the district court could rely on the probable-cause section of the complaint to

determine the sufficiency of the factual basis for Benjamin’s plea or that the court in fact

relied on the complaint. And the prosecutor did not submit the police reports to the

district court until a few days after the plea hearing.

       A factual basis must be established before a court accepts a plea. See Minn. R.

Crim. P. 15.01, subd. 1(8); Kochevar v. State, 281 N.W.2d 680, 686 (Minn. 1979).

Because the record does not reflect an agreement of the parties that the district court

could rely on the complaint or the police reports, none of which was introduced or

offered to the court at the plea hearing, we will not consider them now to supplement the

facts contained in the record of the plea hearing.

       Independent Analysis of Factual Basis by District Court

       To ensure that an Alford plea meets the accuracy requirement of a valid plea, the

district court must analyze the factual basis offered for the plea and reasonably and

“independently conclude that there is a strong probability that the defendant would be

found guilty of the charge to which he pleaded guilty, notwithstanding his claims of

innocence.” Theis, 742 N.W.2d at 647, 649 (citing Goulette, 258 N.W.2d at 758, 760). In

this case, the record does not reflect that the district court conducted an independent

analysis of the factual basis or concluded that, based on the factual basis offered, a strong

probability exists that Benjamin would be found guilty of the charge of second-degree




                                               8
assault with a dangerous weapon, notwithstanding his claims of innocence. The district

court merely stated that it accepted Benjamin’s plea.

       Because the factual basis established at the plea hearing is insufficient to support

Benjamin’s Alford plea to second-degree assault with a dangerous weapon, and because

the record does not reflect that the district court conducted an independent analysis of the

factual basis or concluded that, based on the factual basis offered, a strong probability

exists that Benjamin would be found guilty of the charge of second-degree assault with a

dangerous weapon, we conclude that Benjamin’s plea is not accurate and therefore is

invalid.

       Reversed and remanded.




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