                         This opinion will be unpublished and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
                                    A15-0443

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                Stanley Allen Brown, Jr.,
                                       Appellant.

                                 Filed January 11, 2016
                            Affirmed in part and remanded
                                   Rodenberg, Judge

                              Steele County District Court
                                File No. 74-CR-13-2200

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

Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

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

      Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and

Rodenberg, Judge.

                        UNPUBLISHED OPINION

RODENBERG, Judge

      On appeal from his conviction of second-degree criminal sexual conduct,

appellant Stanley Allen Brown, Jr. argues that the district court abused its discretion by

denying his motion to withdraw his Norgaard plea of guilty, and that it improperly
imposed consecutive sentences based on an incorrect criminal history score. We affirm

the district court’s denial of appellant’s motion to withdraw his guilty plea. But because

the district court erred in using an incorrect criminal history score in consecutively

sentencing appellant, we remand for resentencing.

                                         FACTS

       On November 13, 2013, appellant was charged with one count of first-degree

criminal sexual conduct against a six-year old child. The victim told her mother and an

advocate from the Midwest Children’s Resource Center that appellant “was drunk and he

just got on top of me and pulled his pants down,” and that he said “shhh! shhh! shhh!”

in response to her screaming. The victim identified a penis as a “bat wing,” stated that

appellant had inserted his “bat wing” into her “one time.”

       At his November 13 arraignment hearing, and after being advised of his right to

remain silent, appellant attempted to plead guilty as follows:

              APPELLANT: Your Honor, I want to—I want to just go
              ahead and plead guilty because I—
              DISTRICT COURT: Okay, Sir. I’m going to stop you
              there—
              APPELLANT: I—
              DISTRICT COURT: I want you to talk to an attorney and
              then we can get you back into court—
              APPELLANT: No. I just—
              DISTRICT COURT: —very quickly.
              APPELLANT: —let’s just get this started because I can’t—
              it’s not good. This is not a good thing I did.

The district court redirected appellant and appointed counsel for him.

       Defense counsel later negotiated a plea agreement with the prosecutor, and a plea

hearing was held on July 7, 2014. After questioning appellant concerning the waiver of


                                             2
his trial rights and the elements of the offense, the district court questioned him about the

offense. Appellant admitted that he had a significant relationship with the six-year-old

victim. When appellant claimed that he did not know what he did on the date of the

offense, the district court asked defense counsel to inquire. Appellant testified as follows

under questioning by defense counsel and the prosecutor:

                      By defense counsel:
              Q: [Appellant], you would agree that you were intoxicated
              that day; is that right?
              A: Yes.
              Q: And you would also agree that you were left alone with
              this child; is that correct?
              A: Yes.
              Q: And you and I have had many conversations about what
              happened and what you did—what happened after this child
              made a complaint against you; is that correct?
              A: Yes.
              Q: And you would agree that we have gone through certain
              evidence that the State would introduce against you; is that
              right?
              A: Yes.
              Q: And one of those things is the evidence of the statement
              that the child made to the police there after this happened,
              right?
              A: Yes.
              Q: And she indicated that you—she identified your penis as
              what she called a bat wing; is that correct?
              A: Yes. . . .
              Q: And there—you would agree that there would be evidence
              that would be admitted at trial that would talk about bleeding
              that she suffered; is that correct?
              A: Yeah.
              Q: And, also, that she indicated that it hurt when she went to
              pee, initially; is that correct?
              A: Yeah.
              Q: And we also went through a DNA profile that the State
              did after the Court issued a warrant for a sample of your
              DNA; is that right?
              A: Yes.


                                             3
Q: And I went through that with you and the DNA person in
our office whose name is Ms. Maxwell; do you remember
that?
A: Yes.
Q: And Ms. Maxwell indicated to you that all of the—nearly
all of the DNA there was a match; is that right?
A: Yes.
Q: And you had no idea of how your DNA would have
gotten in that particular area on that little girl; is that correct?
A: Yes.
Q: And you would agree that that is not DNA that would
ordinarily be in her vaginal area; is that correct?
A: Yes. . . .
Q: And [appellant], you feel that you have had enough time
to talk to me; is that correct?
A: Yes.
Q: And you feel like we’ve had an opportunity to go through
all of the evidence together; is that right?
A: Yes.
Q: And you would agree that while you may not remember
everything, you have no reason to doubt what the child says
happened, is that right?
A: Yes.
Q: And you believe that, in fact, you did the things to her that
she said that you did to her?
A: Yes.
Q: And that’s not because you were so intoxicated you didn’t
know what you were doing, you eventually realized what you
were doing and that she was a child; is that correct?
A: Yeah. . . .
Q: . . . [O]ne of the things that we talked about in our
discussions about the child’s statement was is that you—you
used some force and that was that she was screaming when
you were doing this, or at least that’s what she said; is that
correct?
A: Yes.
Q: And she told the investigator and told the interviewer that
you were saying, sh-sh-sh-sh, which meant, be quiet, when
this was occurring; is that right?
A: Yeah.
        By the prosecutor:
Q: And you understand that . . . you’re waiving any defense
regarding intoxication, correct?


                                 4
              A: Yes.
              Q: And you’re accepting the plea proposal today because the
              State is willing to recommend less time in prison than you
              might have been with the first-degree charge?
              A: Yes.
              Q: And you believe that if you went to trial that there is a
              high likelihood that you would be convicted of at least a
              second degree, if not the first-degree charge?
              A: Yes.

After appellant so testified, the prosecutor identified appellant’s plea as “really a

Norgaard plea.” The prosecutor indicated his belief that the parties were willing to

stipulate to the complaint “as forming a factual basis and with the other waiver that’s

been given it would be a Norgaard [p]lea.” Appellant did not object. The district court

determined that there was a sufficient factual basis to find appellant guilty of second-

degree criminal sexual conduct.

       Appellant moved to withdraw his guilty plea before sentencing, arguing that he

should be permitted to withdraw his plea because (1) he was not given an opportunity to

discuss the Norgaard plea with defense counsel and did not understand was it was, (2) he

did not discuss the defense of voluntary intoxication with defense counsel, (3) he did not

have a complete understanding of the DNA evidence to be used against him, (4) he was

not provided with updated medical records and a CD with pictures of the victim prior to

his plea, (5) his plea was entered based on leading questions, (6) the district court did not

advise or ask him if he understood what a Norgaard plea was, and (7) an agreement that

he would be able to visit with his mother at the jail was not followed. Appellant offered

no affidavits, evidence, or testimony in support of his arguments. The state argued that

appellant had validly waived his rights and entered a valid Norgaard plea of guilty. In


                                             5
support of its argument that it would be prejudiced if appellant was allowed to withdraw

his plea, the state submitted an affidavit from the victim’s therapist stating that the victim

would be re-traumatized if appellant was allowed to withdraw his plea. The state also

noted that the jail visit between appellant and his mother was not part of the plea

agreement and that it could be still arranged.        The district court denied the plea-

withdrawal motion.

       The district court later sentenced appellant to the parties’ agreed-upon term of 252

months in prison, with a 10-year conditional-release period, the sentence to run

consecutive to sentences from earlier convictions. The district court used a criminal

history score of five. This appeal followed.

                                      DECISION

I.     Plea Withdrawal

       “A defendant has no absolute right to withdraw a guilty plea after entering it.”

State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). The rules of criminal procedure

provide two bases upon which the district court may allow a plea of guilty to be

withdrawn. Minn. R. Crim. P. 15.05. The first requires that the defendant present “proof

to the satisfaction of the court that withdrawal is necessary to correct a manifest

injustice.” Id., subd. 1. A manifest injustice occurs if a defendant’s plea is not accurate,

or is involuntary, or is not intelligently entered. State v. Jumping Eagle, 620 N.W.2d 42,

43 (Minn. 2000). Such a plea is not valid, and it would be a manifest injustice to allow

an invalid plea to stand. See id. (citing Minn. R. Crim. P. 15.05, subd. 1). The second

basis for plea withdrawal is the district court’s determination, upon considering the


                                               6
reasons for the motion and any prejudice to the prosecution, that “it is fair and just” to

allow the withdrawal. Minn. R. Crim P. 15.05, subd. 2. A motion on this second basis

must be made before sentencing. Id.

       On appeal, appellant does not argue that plea withdrawal is necessary to correct a

manifest injustice. We address only those issues raised and argued to us and that are

shown by the record to have been presented to and considered by the district court.

Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Appellant argues only that allowing

him to withdraw his plea would be fair and just.

       The fair-and-just standard requires that the moving party show sufficient reasons

to support plea withdrawal. Raleigh, 778 N.W.2d at 97. If that burden is met, the state

has the burden of showing prejudice. Id. Although the fair and just standard “is less

demanding than the manifest injustice standard, it does not allow a defendant to withdraw

a guilty plea for simply any reason.” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007)

(quotation omitted). We review a district court’s decision to deny a plea-withdrawal

motion under the fair-and-just standard for an abuse of discretion, “reversing only in the

rare case.” Raleigh, 778 N.W.2d at 97 (quotation omitted).

       A.    Reasons to Support Plea Withdrawal

       Appellant argues multiple bases for his plea-withdrawal request. We address each

in turn.

             1.     Failure to Understand the Norgaard Plea

       Appellant argues that he should be permitted to withdraw his plea because he did

not understand the Norgaard plea. “A plea constitutes a Norgaard plea if the defendant


                                            7
asserts an absence of memory on the essential elements of the offense but pleads guilty

because the record establishes, and the defendant reasonably believes, that the state has

sufficient evidence to obtain a conviction.” Williams v. State, 760 N.W.2d 8, 12 (Minn.

App. 2009), review denied (Minn. Apr. 21, 2009); see State ex rel. Norgaard v. Tahash,

261 Minn. 106, 110 N.W.2d 867 (1961). The Minnesota Supreme Court has urged

district courts to accept Norgaard pleas “with caution,” making certain that the defendant

understands his rights, as such a plea is not supported by the defendant’s unequivocal

admission of guilt. State v. Ecker, 524 N.W.2d 712, 716-17 (Minn. 1994).

          Appellant claims that his plea was unintelligent because neither the district court

nor his defense counsel explained the legal implications of a Norgaard plea. We note

that a claim that a plea was not intelligently entered ordinarily falls under the manifest-

injustice standard. Jumping Eagle, 620 N.W.2d at 43. “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.” State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).

          The record suggests that the parties did not initially contemplate a Norgaard plea.

The district court unsuccessfully attempted to secure appellant’s admission to facts

constituting second-degree criminal sexual conduct.          Taking over from the court,

appellant’s counsel elicited what the prosecutor characterized as a Norgaard plea based

on appellant’s claimed inability to remember the details of the offense. The district court

accepted this unchallenged statement and indicated it would issue a written order to this

effect.


                                               8
       In Ecker, the Minnesota Supreme Court stated, “we believe it is important for

either counsel or the trial court to indicate explicitly on the record that the defendant is

entering an Alford-type [including Norgaard] guilty plea. The defendant should be

questioned directly regarding whether he or she understands the legal implications of

such a plea.” 524 N.W.2d at 717. However, the Ecker court upheld the Norgaard plea

despite the lack of questioning regarding that defendant’s understanding of the legal

implications of a Norgaard plea. Id.

       We are not persuaded that appellant’s plea was unintelligent or that the district

court erred in concluding that the fair-and-just standard requires plea withdrawal.

Appellant waived his trial rights both in the plea petition and on the record.           He

apparently understood the rights that he was waiving. Appellant responded affirmatively

to defense counsel’s statement that “you would agree that while you may not remember

everything, you have no reason to doubt what the child says happened, is that right?”

Appellant’s signed plea petition indicated that he was pleading guilty to an amended

charge of second-degree criminal sexual conduct, and that he understood the agreed-upon

sentence of 252 months. Appellant had discussed with counsel the possibility of entering

a similar Alford plea, and the legal implications of such a plea. Importantly, appellant

submitted no affidavit or other evidence explaining why he would have proceeded

differently with a full understanding of the legal implications and consequences of a

Norgaard plea. The district court neither legally erred nor abused its discretion in

denying appellant’s motion to withdraw his plea based on the claimed failure to

understand the Norgaard plea.


                                             9
              2.      Intoxication Defense

       Appellant argues that plea withdrawal should be allowed because his defense

counsel did not explain the defenses of voluntary and involuntary intoxication.1

Appellant’s trial counsel admitted that he did not specifically discuss intoxication

defenses with appellant before his plea because he did not believe such a defense to be

viable. First, appellant fails to distinguish State v. Lindahl, 309 N.W.2d 763, 766-67

(Minn. 1981) (holding that voluntary intoxication is not a defense to general-intent sex

crimes). Moreover, and during the plea colloquy, appellant agreed that he was “not so

intoxicated that [he] didn’t know what [he] was doing.” Similarly, appellant checked the

box on the written plea petition indicating that he was not claiming that he “was so drunk

or so under the influence of drugs or medicine that [he] did not know what [he] was

doing at the time of the crime,” and acknowledged that he was “waiving any defense

regarding intoxication” by pleading guilty. And appellant offered no evidence that an

explanation of the intoxication defense would have caused him to reconsider his guilty

plea. The district court acted within its discretion in denying his motion to withdraw his

plea on this basis.

              3.      Disclosure of Additional Evidence

       Appellant argues that he should be allowed to withdraw his guilty plea because, at

the time of his plea, the state had not disclosed certain evidence, including a page of the



1
  Although appellant argues that his trial counsel erred in failing to explain both types of
intoxication defenses, there is nothing in the record supporting an involuntary-
intoxication defense.

                                             10
victim’s medical report, the video recording of the victim’s interview, and a CD

containing photographs.

       In a felony criminal case, the state must disclose any evidence within its

possession or control that “tends to negate or reduce the defendant’s guilt.” Minn. R.

Crim. P. 9.01, subd. 1(6). A defendant may withdraw a guilty plea or obtain a new trial

based upon newly discovered evidence if he proves:

              (1) that the evidence was not known to the defendant or
              his/her counsel at the time of the trial; (2) that the evidence
              could not have been discovered through due diligence before
              trial; (3) that the evidence is not cumulative, impeaching or
              doubtful; and (4) that the evidence would probably produce
              an acquittal or a more favorable result.

Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).

       Here, appellant does not allege that the evidence was unknown to him or his

counsel at the time of his plea, nor does the record support that it could not have been

discovered through diligent efforts. And importantly, appellant does not claim that any

exculpatory evidence has been discovered since his plea. The district court acted within

its discretion in denying his motion to withdraw his plea on this basis.

              4.     Leading Questions

       Appellant argues that his guilty plea was improper because the factual basis was

established through leading questions. The use of leading questions in Norgaard pleas is

discouraged. See Ecker, 534 N.W.2d at 717 (“[W]e again discourage the use of leading

questions to establish a factual basis. . . . The defendant should be encouraged to state in

his or her own words why he or she is willing to plead guilty notwithstanding . . . a



                                             11
claimed loss of memory”).        But the failure to “elicit proper responses” does not

automatically require plea withdrawal if the record “contains sufficient evidence to

support the conviction.” Raleigh, 778 N.W.2d at 94. To determine whether the record

contains sufficient evidence to support the conviction, we may consider the plea petition,

the plea colloquy, and any other evidence in the record. Lussier v. State, 821 N.W.2d

581, 588-89 (Minn. 2012).

        Appellant does not argue that there was an inadequate factual basis for his plea,

and the record would support no such claim. He admitted that he had a significant

relationship with the six-year-old victim, and he admitted that he had no reason to doubt

the veracity of the victim’s factual claims. In fact, he agreed under oath that he believed

he did the things she said and admitted that his DNA was found in the victim’s vaginal

area.

        Tellingly, appellant was prepared to admit his guilt at his arraignment. And at the

plea hearing, he acknowledged that there was a “high likelihood” that the state would be

able to convict him of first-degree or second-degree criminal sexual conduct. Therefore,

and while the use of leading questions is discouraged, the record establishes a sufficient

factual basis to support appellant’s guilty plea.

              5.     DNA Evidence

        Appellant argues that he should be permitted to withdraw his guilty plea because

he did not adequately understand the DNA evidence in his case. The record belies

appellant’s assertion.




                                              12
       Appellant testified during the plea colloquy the he had discussed the DNA

evidence with his attorney and the “DNA person,” who indicated that “nearly all” of the

DNA found in the victim’s vaginal area was a match to appellant. At the November 20

motion hearing, defense counsel stated that he and the “DNA person” had explained to

appellant the probabilities regarding the DNA evidence, the likely impact of the DNA

report at trial, and that “the discussion that was had with him is while this is a sperm cell,

it’s not going to be easy to explain how this got where it was.” Counsel at the motion

hearing indicated that appellant had difficulty understanding that the DNA evidence

found was “trace” evidence of his sperm. However, appellant does not explain on appeal

how a more thorough understanding of “trace” evidence would have caused him to

reconsider his plea, particularly in light of the factual basis established for his plea and

his acknowledgement that the trace DNA evidence was of a sperm cell found in a six-

year-old child’s vaginal area. The district court acted within its discretion in denying

appellant’s motion to withdraw his guilty plea based on the claimed failure to understand

DNA evidence.

              6.     Visit with Mother2

       Appellant argues that his guilty plea was partially based on an agreement that he

would be able to visit with his mother in jail. “[W]hen a plea rests in any significant

degree on a promise or agreement of the prosecutor, so that it can be said to be part of the

inducement or consideration, such promise must be fulfilled.” State v. Brown, 606


2
 This argument was presented to the district court at the November 20 motion hearing,
but the district court did not address the issue in its written order.

                                             13
N.W.2d 670, 674 (Minn. 2000) (quoting Santobello v. New York, 404 U.S. 257, 262, 92

S. Ct. 495 (1971)).     “When a guilty plea is induced by unfulfilled or unfulfillable

promises, the voluntariness of the plea is drawn into question.” State v. Wukawitz, 662

N.W.2d 517, 526 (Minn. 2003). An agreement that a prosecutor will make “good-faith

efforts” to “facilitate” family visits that is not a part of the plea does not constitute a

promise rendering a guilty plea involuntary. Butala v. State, 664 N.W.2d 333, 339

(Minn. 2003).

       Here, the plea agreement is silent regarding such a visit, and appellant

acknowledged in his plea that he had not been promised anything other than the

agreement described to the district court. While the state agreed that there had been some

discussions about a visit, it maintains that this was not a part of the plea agreement. At

the plea-withdrawal hearing, the state indicated that it had “made the contacts” to

facilitate such a visit, but that the idea of a visit had been deferred pending appellant’s

motion. Because the visit was not part of the plea agreement and appellant provides no

evidence that an agreed-upon visit was actually denied, the district court acted within its

discretion in denying appellant’s motion to withdraw his guilty plea despite appellant not

having had a jail visit with his mother.

       B.     Prejudice to the State

       Appellant challenges the district court’s conclusion that withdrawal of his guilty

plea would prejudice the state. A district court must consider “any prejudice” to the state

if it were to grant a defendant’s motion to withdraw a guilty plea. Minn. R. Crim. P.

15.05, subd. 2. However, if the defendant fails to advance valid reasons why withdrawal


                                            14
is fair and just, a district court may deny plea withdrawal even if the state is not

prejudiced. See Raleigh, 778 N.W.2d at 97-98 (Minn. 2010) (holding that a district court

did not abuse its discretion in denying plea withdrawal under the fair-and-just standard

when “the prejudice to the [s]tate was overstated” but the defendant “failed to provide

any valid reason why withdrawal would be ‘fair and just’”).

       Here, the district court concluded that the state demonstrated substantial prejudice

based on an affidavit of the victim’s therapist stating that the victim had suffered

“significant trauma and stress due to the crime” and would be “re-traumatized if

[appellant] were allowed to withdraw his guilty plea as at this point [she] believes the

case is over.” Caselaw permits “interests of the victim” to be considered in weighing

prejudice. Kim v. State, 434 N.W.2d 263, 267 (Minn. 1989). The district court acted

within its discretion in considering prejudice to the state as a factor in denying the plea-

withdrawal motion.

       In sum, and considering the entire context of appellant’s guilty plea and the strong

factual basis supporting that plea, appellant fails to demonstrate that the district court

abused its discretion in denying his motion to withdraw his Norgaard plea of guilty.

II.    Sentencing

       Appellant argues that the district court erred by using a criminal history score of

five to sentence him to 252 months in prison for the second-degree criminal sexual

conduct charge, to run consecutive to 15-month and 17-month consecutive sentences for




                                            15
two prior convictions for felony fourth-degree assault.3 He argues that the district court

was required to use a criminal history of zero in sentencing him consecutively, and that a

90-month sentence should be imposed.

       The state agrees that the district court erred by using a criminal history score of

five to impose the consecutive 252-month sentence. But the state argues that we should

remand for resentencing because the sentencing error does not necessitate correction to a

90-month sentence.4

       We may review a “sentence imposed or stayed to determine whether the sentence

is inconsistent with statutory requirements, unreasonable, inappropriate, excessive,

unjustifiably disparate, or not warranted by the findings of fact issued by the district

court.” Minn. Stat. § 244.11, subd. 2(b) (2014). A district court’s decision to depart

from the sentencing guidelines’ presumptive sentence is reviewed for an abuse of

discretion. State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000). “Statutory construction

and interpretation of the sentencing guidelines are subject to de novo review.” State v.

Johnson, 770 N.W.2d 564, 565 (Minn. App. 2009).

       Consecutive sentences are permissive when sentencing felony convictions for

first-degree criminal sexual conduct and fourth-degree assault. Minn. Sent. Guidelines

2.F.2.a.1.i.a (2013).   The sentencing guidelines provide that, for any permissive

consecutive sentence, “the zero criminal history column, or the mandatory minimum,


3
 Appellant does not challenge those earlier consecutive sentences.
4
  Appellant does not challenge the imposition of a 48-month concurrent sentence for a
separate prior conviction, and we therefore do not address that portion of the district
court’s order.

                                           16
whichever is longer,” shall be used in determining the presumptive duration. “The

purpose of this procedure is to count an offender’s criminal history score only one time in

the computation of consecutive sentence durations.”          Id. cmt. 2.F.202.    In making

appellant’s sentence consecutive to earlier sentences, the district court erred in not using a

criminal-history score of zero.

       The district court’s error in using the incorrect criminal-history score requires a

remand for resentencing.      It remains for the district court to determine the proper

sentence on remand. See State v. Nunn, 411 N.W.2d 214, 216 (Minn. App. 1987) (stating

that, on remand, the district court was “free to resentence . . . so long as the newly

imposed sentences were authorized by law and did not exceed the original . . . sentence”).

       Affirmed in part and remanded.




                                             17
