                           This opinion will be unpublished and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
                                      A14-2147

                             Robert William Silker, petitioner,
                                        Appellant,

                                             vs.

                                    State of Minnesota,
                                       Respondent.

                                    Filed July 27, 2015
                                         Affirmed
                                    Rodenberg, Judge

                               Olmsted County District Court
                                 File No. 55-CR-09-5821

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

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

         Considered and decided by Kirk, Presiding Judge; Rodenberg, Judge; and Chutich,
Judge.

                          UNPUBLISHED OPINION

RODENBERG, Judge

         Appellant challenges the validity of his Alford plea of guilty, arguing that there

was not a strong factual basis to support the plea. We affirm.
                                             FACTS

       On July 28, 2009, appellant Robert William Silker was charged with five counts of

first-degree criminal sexual conduct, one count of soliciting a child to engage in criminal

sexual conduct, and one count of possession of a pistol by a user of a controlled

substance.   The charges were based on allegations made by 14-year-old L.K, and

evidence seized pursuant to a search warrant.

       Appellant has consistently denied L.K.’s factual claims. Over three years after

appellant was charged, the state offered to allow him to plead guilty to criminal sexual

conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(b) (2006)

pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970) and State v.

Goulette, 258 N.W.2d 758 (Minn. 1977), with all other charges being dismissed.

Appellant accepted this offer.

       At the plea hearing, appellant answered his attorney’s questions concerning his

plea of guilty to the third-degree charge:

              [DEFENSE COUNSEL]: But you are—you’re not—what
              you’re telling the Court basically is that you’re not guilty, that
              you never touched this girl or never—you know—in a sexual
              or inappropriate manner. But—And we’ll get into this a little
              further during the plea. But because you think ultimately
              that—that you believe that you’re going to be convicted of
              this you’re going to enter a guilty plea to take advantage of
              the State’s offer, correct?
              [DEFENDANT]:                Correct.

                     ....

              [DEFENSE COUNSEL]: Okay. And you have reviewed
              the evidence with all of the attorneys . . . But you have
              reviewed every bit of evidence that’s come in on this case,
              correct?

                                               2
              [DEFENDANT]:                  That’s correct.
              [DEFENSE COUNSEL]: Okay. You are aware of all of the
              statements and—and pictures and other things that are going
              to be presented at trial, correct?
              [DEFENDANT]:                  That’s correct.
              [DEFENSE COUNSEL]: You understand that if a jury
              believes [L.K.]’s statements and the statements of other
              witnesses against you that it is highly likely you will be
              convicted of one or more of the original charges, correct?
              [DEFENDANT]:                  That’s correct.

After a clarification of appellant’s own age and the age of L.K. at the time of the alleged

offenses, the district court concluded, “I will accept the plea as voluntarily, intelligently

and accurately made.”

       Before sentencing, appellant moved the district court to withdraw the guilty plea.

His motion was denied.

       At the sentencing hearing, defense counsel brought to the district court’s attention

“a housekeeping matter,” to wit: that, upon reviewing the transcript counsel could not

find a statement by the court “that on review of the evidence the State—the evidence that

the State would have presented at trial would be sufficient to convict of a third degree

crim sex, [because] it was an Alford, and we’d ask that the Court make that finding.” The

district court responded:

              I have reviewed this evidence a number of times on various
              motions and there is sufficient evidence in the police reports
              and the other evidence that’s been presented to the Court over
              the course of several years that would support a—if believed
              by the jury, a conviction for the crime as charged and as pled
              to and there is—so that there is a sufficient factual basis with
              that and the other admissions the defendant has made or
              things he stated during the plea hearing to support the Alford
              plea, which I think I already accepted and in fact have already
              decided against a motion for withdrawal of it.


                                             3
       The district court sentenced appellant for the conviction of third-degree criminal

sexual conduct. The district court later denied appellant’s petition for postconviction

relief, filed after appellant had violated conditions of his probation, and again requesting

plea withdrawal. This appeal followed.

                                     DECISION

       Appellant contends that his Alford plea of guilty was inaccurate and therefore

invalid. Once a defendant pleads guilty, he “does not have an absolute right to withdraw

a valid guilty plea.” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). A defendant

may withdraw a guilty plea if “withdrawal is necessary to correct a manifest injustice.”

Minn. R. Crim. P. 15.05, subd. 1; see also Theis, 742 N.W.2d at 646. A “manifest

injustice exists where a guilty plea is invalid.” Theis, 742 N.W.2d at 646. In order for a

plea to be valid, “it must be accurate, voluntary, and intelligent.” State v. Ecker, 524

N.W.2d 712, 716 (Minn. 1994). We review the validity of a guilty plea de novo. State v.

Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). If a guilty plea is invalid, the case must be

remanded to provide an opportunity to withdraw the plea. Theis, 742 N.W.2d at 651.

       Typically, a defendant pleads guilty by admitting to a crime and explaining, in his

own words, the circumstances that led to the crime.          Ecker, 524 N.W.2d at 716.

However, a defendant may plead guilty while maintaining his innocence pursuant to the

United States Supreme Court’s decision in Alford, as adopted in Minnesota in Goulette.

Such guilty pleas are often referred to as Alford pleas. See Theis, 742 N.W.2d at 647.

       “When a defendant pleads guilty but at the same time denies that he is in fact

guilty, the rationality of the defendant’s decision is immediately called into question.”


                                             4
Goullette, 258 N.W.2d at 761. Therefore, in order for an Alford plea to be valid, a

“strong factual basis” must be established on the record. Alford, 400 U.S. at 38, 91 S. Ct.

at 168; see also Theis, 742 N.W.2d at 649; Ecker, 524 N.W.2d at 716 (stating that an

“adequate factual basis” is necessary to ensure that the plea was voluntary). A strong

factual basis ensures that the defendant does not plead “guilty to a more serious offense

than he could be convicted of were he to insist on his right to trial.” Theis, 742 N.W.2d

at 649; see also Raleigh, 778 N.W.2d at 95 (“Ultimately, the accuracy requirement

ensures that a defendant does not plead guilty to a crime more serious than that of which

he could be convicted if he elected to go to trial.”).

       “The cases reflect that careful 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.” Theis, 742 N.W.2d at 648-49. Both the defendant and the

court must be satisfied that the state’s evidence would be sufficient to convict and, in

fact, that a jury is likely to return a guilty verdict. See Theis, 742 N.W.2d at 650

(concluding that the defendant’s acknowledgment that there was a “mere ‘risk’” of a

guilty verdict was an “inadequate acknowledgement” for the purposes of establishing a

strong factual basis); Ecker, 524 N.W.2d at 716 (requiring that the district court

interrogate the defendant if the district court believes the state has not adequately

established that the defendant believes he or she would be found guilty if the state’s

evidence was submitted to a jury). “[T]he [district] court should not cavalierly accept [an

Alford] plea but should assume its responsibility to determine whether . . . there is a

sufficient factual basis to support it.” Goullette, 258 N.W.2d at 761.


                                               5
       Appellant’s Alford plea of guilty to third-degree criminal sexual conduct in

violation of Minn. Stat. § 609.344, subd. 1(b) required proof that the appellant “engage[d]

in sexual penetration with another person [when] the complainant is at least 13 but less

than 16 years of age and the actor is more than 24 months older than the complainant.”

Sexual penetration includes digital and oral penetration of the vagina.        Minn. Stat.

§ 609.341, subd. 12(1)-(2) (2006).

       Appellant argues that the district court did not establish a strong factual basis

before accepting his guilty plea, and that the district court erred by accepting his guilty

plea when the state did not establish the elements of third-degree criminal sexual conduct

either by reciting the elements of that offense or by presenting evidence tending to prove

those elements. Appellant argues that, without so establishing the elements of third-

degree criminal sexual conduct, the district court could not have ensured that appellant

was pleading guilty to a less serious offense than that with which he was originally

charged.

       While neither the state nor the district court recited the elements of third-degree

criminal sexual conduct at the plea-hearing, it is clear from our careful review of the

record that the district court and appellant had in mind that third-degree criminal sexual

conduct was a less serious offense than other offenses with which appellant was charged.

He was questioned about his age and that of L.K. at the time of the offense. The case had

been ongoing for approximately three years after the initial charges were brought against

appellant and appellant was keenly aware that L.K. alleged sexual penetration. By the

time appellant pleaded guilty, both the district court and appellant were very familiar with


                                             6
the evidence in the state’s possession and what that evidence would have been able to

prove. Appellant acknowledged during the plea hearing that he had reviewed “every bit

of evidence that’s come in on this case.” Appellant acknowledged the strength of the

state’s evidence when he responded affirmatively to the following question:

              [W]hat you’re telling the Court basically is that you’re not
              guilty . . . [b]ut because you think ultimately that—that you
              believe that you’re going to be convicted of this you’re going
              to enter a guilty plea to take advantage of the State’s offer,
              correct?

Appellant clearly understood that the result of his plea was a conviction of an offense less

serious than those he originally faced.1

       We have held that if the district court has “assure[d] itself that the accuracy

standard is satisfied” the district court need not make an explicit finding to that effect on

the record “as a routine matter.” State v. Johnson, ___ N.W.2d ___, ___, 2015 WL

4379808, at *4 (Minn. App. June 29, 2015). While the district court did not explicitly

find that the charge to which appellant was pleading guilty was less serious than those of

which he could have been convicted had he gone to trial, it is clear from the record that

the district court was assured that the accuracy requirement had been met at the plea

hearing.

       Appellant also argues that the only question posed to him concerning whether the

state had sufficient evidence to convict him of the pleaded-to offense was too ambiguous

to establish a strong factual basis for the plea. In its order denying appellant’s petition for

1
  The district court stated, “I’m not usually a big fan of Alford Pleas but I think it’s
appropriate in this case.” This statement further evidences the district court’s familiarity
with the evidence against appellant and the circumstances surrounding appellant’s guilty
plea.

                                              7
post-conviction relief, the district court acknowledged that “the questioning of [appellant]

on [whether the crime to which he was pleading guilty was more serious than that of

which the state could have convicted him] could have been more thorough.” And indeed,

it could have been. The only question concerning whether a jury was likely to convict

appellant on the evidence in the state’s possession elicited an ambiguous answer: “You

understand that if a jury believes [L.K.’s] statements and the statements of other

witnesses against you that it is highly likely you will be convicted of one or more of the

original charges, correct?” (Emphasis added.) Appellant responded affirmatively. But

appellant was charged not only with five counts of first-degree criminal sexual conduct;

he was also charged with soliciting a child to engage in sexual conduct and with being a

user of controlled substances in possession of a pistol, the latter two crimes being less

serious than third-degree criminal sexual conduct, the offense to which appellant pleaded

guilty.

          Despite this ambiguity, we are convinced from our review of the record that

appellant knew that the state had evidence tending to prove the first-degree criminal

sexual conduct charges and was acknowledging that, had that evidence been presented to

the jury, he was “highly likely” to be convicted of first-degree criminal sexual conduct.

Again, appellant had reviewed all of the evidence in the state’s possession and this case

has been pending for years. As the district court rightly observed concerning the question

of ambiguity, “it would not be logical to assume that [appellant] was referring to one of

the lesser charges when he agreed that it was ‘highly likely’ that he would be convicted.”

A common-sense reading of the plea transcript demonstrates that, while the noted


                                             8
ambiguity exists, appellant was pleading guilty to the third-degree offense to avoid one or

more first-degree convictions.

       The requirement of establishing a strong factual basis in an Alford plea flows from

the requirement that a guilty plea be accurate to be valid, which ensures that appellant

was not pleading guilty to a “more serious offense than he could be convicted of were he

to insist on his right to trial.” Theis, 742 N.W.2d at 649. Because it is clear from the

record before us that, as the district court found before sentencing, it was highly likely

that appellant would have been convicted of first-degree criminal sexual conduct had a

jury been presented with the evidence in the state’s possession, and because it is clear that

appellant knew this, the Alford plea, while imperfect, had a strong factual basis and was

therefore valid.

       Affirmed.




                                             9
