                          This opinion will be unpublished and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
                                     A15-0472

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                   Tuquan Lee Smith,
                                      Appellant.

                                 Filed February 8, 2016
                                        Affirmed
                                     Peterson, Judge

                              Mower County District Court
                               File No. 50-CR-13-2543

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

Kristen Nelsen, Mower County Attorney, Jeremy Clinefelter, Assistant County Attorney,
Austin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant State
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Worke,

Judge.
                         UNPUBLISHED OPINION

PETERSON, Judge

       In this appeal from a conviction of first-degree aggravated robbery, appellant argues

that his Alford plea was invalid because the factual basis for the plea was insufficient to

establish that he believed that he would be convicted by a jury. We affirm.

                                         FACTS

       Three men robbed the Freeborn Coop gas station in Lyle. Police began surveillance

in the area and saw a Chevrolet Impala with a driver and passengers who fit the description

of the robbers. When police stopped the car, appellant Tuquan Lee Smith was driving, and

Vonzell Whitehead, Elgin Green, and Keion Clay were passengers. Police searched the

car and discovered clothing used in the robbery, cash, and checks made out to the gas

station.   The police also recovered clothing along the road that matched witness

descriptions of the robbers.

       On a surveillance video, police were able to identify Whitehead and Green as active

participants in the robbery. A third man appeared in the video, but his face was covered.

That man was wearing light or gray shoes; Smith was wearing gray shoes when he was

arrested. A witness reported seeing a Chevrolet Impala parked near the gas station with

four men in it. This car moved to various locations in the parking lot before the robbery.

       All four men were charged with first-degree aggravated robbery, and they all denied

involvement. The district court ordered that all four trials be joined. Clay, Green, and

Whitehead pleaded guilty, and, during their plea hearings, all three men implicated Smith




                                             2
in the robbery. Smith observed at least two of the pleas. On the scheduled date of his trial,

Smith entered an Alford1 plea to the charge of first-degree aggravated robbery.

       During the plea colloquy, Smith admitted that (1) he reviewed the police reports and

knew that his co-defendants had pleaded guilty; (2) he was aware that there was a handgun

and a long gun in the car; (3) he was driving the car and made a statement to the others

about how many customers were still in the gas station; (4) he heard Whitehead say “go

get ‘em” indicating that all the customers had left the gas station; (5) Whitehead would

testify that he gave Smith some money and the gun used by Green during the robbery, and

Smith wiped the gun clean and put it between the seats of the car; (6) both Green and Clay

testified in their plea proceedings that Smith was a party to the robbery and discussed it

with them; (7) he was “not truthful” when he told police that he had not stopped after

leaving Iowa and entering Minnesota, and he did not know that anything was going on or

that there was evidence of a robbery in the car; (8) police found a gun, cash, and checks

from the gas station in the car and clothing along the road; (9) he took evasive action by

taking back roads in an attempt to avoid detection; and (10) “in reviewing all of the

evidence that would be tendered against [him], it is clear . . . that a reasonable group of




1
  The United States Supreme Court held that a defendant who maintains that he is innocent
may nevertheless plead guilty to a charge in order to take advantage of a plea agreement
by acknowledging that the evidence is strong enough to enable a jury to find him guilty
beyond a reasonable doubt. North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167
(1970). Here, the state agreed not to seek an aggravated sentence based on the factor that
three or more people acted together to commit the crime. Minnesota adopted the reasoning
of Alford in State v. Goulette, 258 N.W.2d 758, 761-62 (Minn. 1977).

                                             3
jurors, based upon this evidence, could certainly conclude that [he] aided and abetted the

actions in this robbery.”

       The district court found that Smith made his plea intelligently and voluntarily and

that there was a factual basis for the plea. The district court imposed the presumptive 78-

month sentence, based on Smith’s criminal-history score of three. Smith now seeks to

withdraw his guilty plea, arguing that withdrawal is necessary to correct a manifest

injustice because his plea was not accurate.

                                       DECISION

              A manifest injustice exists if a guilty plea is not valid. To be
              constitutionally valid, a guilty plea must be accurate,
              voluntary, and intelligent. A defendant bears the burden of
              showing his plea was invalid. Assessing the validity of a plea
              presents a question of law that we review de novo.

State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010) (citations omitted). Smith challenges

only the accuracy of his plea, which protects a defendant from pleading guilty to a more

serious charge than he could be convicted of at trial. Id.

       A plea is accurate if it is supported by sufficient facts on the record to demonstrate

that the defendant’s conduct falls within the charge to which he is pleading guilty. Lussier

v. State, 821 N.W.2d 581, 588-89 (Minn. 2012). This is particularly important in the case

of an Alford plea. See State v. Theis, 742 N.W.2d 643, 649 (Minn. 2007) (stating that

“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”). Because

a defendant entering an Alford plea is maintaining his innocence, his admission to the facts

alleged in the complaint is insufficient, standing alone, to provide a basis for the plea. State


                                               4
v. Johnson, 867 N.W.2d 210, 215 (Minn. App. 2015), review denied (Minn. Sept. 29,

2015). In addition to the factual admissions, a defendant must acknowledge that the

“evidence the State is likely to offer at trial is sufficient to convict.” Id. (quotation omitted).

And the district court must “independently conclude that there is a strong probability that

the defendant would be found guilty of the charge to which he pleaded guilty.” Id.

(quotation omitted). In Theis, the supreme court concluded that there must be a “strong

factual basis” before an Alford plea is valid. 742 N.W.2d at 649.

       Smith was charged with aggravated robbery, in violation of Minn. Stat. § 609.245,

subd. 1 (2012) (committing a robbery while armed with a dangerous weapon). Smith

signed a plea petition acknowledging that he had been advised of his rights and had

sufficient time to talk to his attorney. He also acknowledged that he “had an opportunity

to review all of the police reports and the statements and sit in on some of the pleas that

were given by other individuals that were present or involved in this incident.” As a factual

basis for the charge, Smith agreed that he (1) knew that the other men were armed and that

they were going to enter the gas station in order to rob it; (2) received money and a handgun

from Green after the robbery, wiped the handgun clean, and put it between the seats;

(3) understood that the other defendants implicated him in the robbery; (4) lied to the police

and acknowledged that they found the gun and proceeds of the robbery in the car he was

driving; and (5) took “evasive actions” in driving by leaving the main road and taking back

roads in order to avoid police. Smith acknowledged that “in reviewing all of the evidence

that would be tendered against [him], it is clear . . . that a reasonable group of jurors, based

upon this evidence, could certainly conclude” that he aided and abetted the armed robbery.


                                                5
The prosecutor explained the range of sentences that Smith would be subject to based on

his criminal-history score, the possibility that he could receive an aggravated sentence

because more than three people were involved in the crime, and that he would not be

subject to an aggravated sentence if he pleaded guilty. This provides a strong factual basis

for the guilty plea. And Smith agreed that a jury “could certainly conclude” that he was

guilty.

          After Smith was questioned, the district court stated, “Mr. Smith, I will accept your

plea of guilty and find that there is a factual basis for it. I also find that you have made a

voluntary and intelligent waiver of your right to trial.” In addition, the court stated: “For

purposes of the Alford Plea, also, I . . . will find that based on . . . your answers to those

questions, that there would be a probability of your conviction; and in that regard, your

plea here today was made voluntarily and intelligently and rationally.”

          Smith argues that the district court’s statements were inadequate because the court

did not find that there was a “strong probability” that he “would” be convicted. But the

district court’s obligation is to “ensure that an adequate factual basis has been established

in the record.” State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). There is no requirement

that the district court use certain words to discharge this obligation.

          Citing Theis, Smith argues that his acknowledgement that he “could” be found

guilty is nothing more than Theis’s acknowledgement that there was a “risk” that he would

be found guilty, which the supreme court held was insufficient for an Alford plea. 742

N.W.2d at 649-50. But in Theis, no one inquired into the factual basis for the plea. Id. at

645. Theis reviewed the plea petition, stated that he understood his rights and the charges


                                                6
against him, and agreed that he had non-consensual sexual contact with his stepdaughter,

but no factual details were placed on the record. Id. The supreme court concluded that

when a defendant enters an Alford plea, there must be “a strong factual basis” that is “based

on evidence discussed with the defendant on the record at the plea hearing.” Id. at 649.

Unlike Theis, the record here includes a specific strong factual basis for Smith’s plea and

Smith agreed that he also had reviewed the police reports and knew that the co-defendant’s

testimony would implicate him.

       In Theis, the supreme court also cautioned that “the court must be able to determine

that the defendant, despite maintaining his innocence, agrees that evidence the State is

likely to offer at trial is sufficient to convict.” Id. To achieve this, the defendant should

“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. Smith agreed

that it was “clear” that a “reasonable group of jurors, based on this evidence, could certainly

conclude” he was guilty. In contrast, Theis agreed that there was a “risk” that he would be

found guilty. Id. at 650. Finally, in Theis, the district court stated that “it was satisfied

with the basis for the plea and would accept it” without commenting on the factual basis

for the plea. Id. at 645 (quotations omitted). Here, the district court found that there was

a sufficient factual basis for the Alford plea, that Smith had entered the plea voluntarily and

intelligently, and that “there would be a probability of your conviction.”




                                              7
       This court stated in Johnson that “[t]here is no suggestion in the caselaw that a

district court, as a routine matter when accepting a Norgaard2 plea, must make an express

finding that there is a strong probability that the defendant would be found guilty of the

charge to which he pleaded guilty.” 867 N.W.2d at 216 (quotation omitted). This court

continued, “[W]e decline to impose a requirement that, in every Norgaard guilty plea, the

district court must make an express finding on the record that there is a strong probability

that the defendant would be found guilty of the crime to which he is pleading guilty.” Id.

at 217. Thus, when the record clearly demonstrates that the accuracy requirement is

satisfied, there are no prescribed words that must be said before an Alford plea is valid.

Smith agreed to a specific factual basis and admitted that, based on the evidence, a jury

could “certainly conclude” that he was guilty of aggravated robbery.             The record

demonstrates that Smith was not pleading guilty to a more serious charge than he could

have been convicted of at trial. See Raleigh, 778 N.W.2d at 94. And the district court

expressly stated that it had considered the factual basis provided at the plea and that it was

sufficient to establish a probability of conviction.

       Affirmed.




2
  “The means of ensuring the factual basis of an Alford/Goulette plea are essentially the
same as the means of ensuring the factual basis of a Norgaard plea.” Johnson, 867 N.W.2d
at 215. A Norgaard plea is made when a defendant claims a loss of memory through
amnesia or intoxication. Id.

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