This opinion will be unpublished and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
A14-1727
State of Minnesota,
Respondent,
vs.
Dale Allen Jones,
Appellant.
Filed July 6, 2015
Affirmed
Hooten, Judge
Dakota County District Court
File No. 19HA-CR-13-2286
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, Haig Huynh, Assistant County Attorney,
Melissa Rasmussen, Certified Student Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Hooten, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Appellant asks this court to reverse the district court’s refusal to allow him to
withdraw his Alford plea, arguing that his plea lacked a proper factual basis and that the
district court erred by denying his pre-sentencing motion to withdraw his plea. We
affirm.
FACTS
On July 18, 2013, the Dakota County Sheriff’s Office began investigating the theft
of iron railroad tie plates from a site owned by a railroad construction company. Because
the company had suffered recurring thefts of tie plates at the site, it had installed a camera
to surveil one of the piles of tie plates to combat future theft. The resulting recording
from July 17 showed two individuals taking tie plates from the site and placing them in a
vehicle registered to appellant Dale Allen Jones. Police officers obtained a search
warrant for appellant’s residence, which was near the site of the thefts. Upon executing
the warrant, the police discovered several receipts from a scrap metal recycling facility.
The officers spoke with appellant’s mother at the residence, who identified her son and
co-defendant Justin Ohde as the two individuals in the surveillance recording and said
that she had seen them loading “railroad items” in a van the night before. Ohde arrived at
the residence while the warrant was being executed and identified appellant and himself
as the individuals in the surveillance recording. That same day, police visited the scrap
metal recycling facility and recovered numerous tie plates that Ohde had sold earlier that
morning.
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Appellant was charged with aiding and abetting the theft of property valued over
$1,000. On March 25, appellant entered an Alford plea to the charged theft offense. He
signed a plea petition in which he agreed to enter a guilty plea to the theft charge and
indicated that he would be seeking a downward departure at sentencing. At the plea
hearing, appellant acknowledged on the record that he had read and signed the plea
petition and that he was voluntarily choosing to waive all of his trial rights in order to
plead guilty and seek a sentencing departure.
Both defense counsel and the prosecutor questioned appellant on the factual basis
for his plea. When questioned by defense counsel, appellant acknowledged that he had
read the complaint, and that he had seen the police report and photographs regarding his
case. He admitted that on or around July 18, he and Ohde made multiple trips to a
driveway near the railroad tracks to pick up loads of tie plates. Appellant elaborated on
why he did so:
DEFENSE COUNSEL: Okay. And you did it because he told
you—
APPELLANT: [Ohde] told me he had permission.
DEFENSE COUNSEL: Okay. That’s what he told you?
APPELLANT: Yes.
DEFENSE COUNSEL: Okay. And that’s why you did it?
APPELLANT: Yes.
DEFENSE COUNSEL: And you intended to take those metal
[sic] and sell it for money, correct?
APPELLANT: Yeah. I mean, we usually take 25 percent of
the money and we give it back to the person who gives us
permission.
DEFENSE COUNSEL: Okay. And that’s what he told you
too?
APPELLANT: Yeah.
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Appellant then acknowledged that the state would likely be calling employees of the
railroad company, police officers, Ohde, and his mother to testify against him. Defense
counsel finished by asking:
DEFENSE COUNSEL: Okay. And now that if we look at all
the evidence against you and if the prosecutor presents that to
a jury, do you agree that there’s a substantial likelihood that a
reasonable jury will convict you . . . based on the allegations
and the evidence against you in this case?
APPELLANT: Yes.
DEFENSE COUNSEL: Okay. And that’s why you’re
pleading guilty today, is that correct?
APPELLANT: Yes.
Appellant agreed that he was pleading guilty because he wanted to ask for a sentencing
departure. When asked by defense counsel if this factual basis was sufficient, the district
court took judicial notice of the complaint “to support the Alford plea.”
The prosecutor also went over the evidence in the case with appellant. Appellant
equivocated when asked whether he was familiar with the police reports and if he had
had sufficient time to review them. The district court then directly questioned appellant
on the issue, and appellant acknowledged that he had “already looked at” the police
reports but had “no idea” whether he needed more time; eventually, appellant agreed that
he was still ready to go forward with the plea. The prosecutor then had appellant again
acknowledge the various pieces of evidence the state would be producing at trial.
Appellant stated that he understood each piece of evidence and again agreed that there
was a “substantial likelihood” that a jury would find him guilty of aiding and abetting
Ohde of theft based on this evidence. The district court then accepted appellant’s plea,
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and Jones acknowledged the district court’s admonition that it was “not going to let [him]
withdraw it later.”
At sentencing, appellant moved to withdraw his plea under Minn. R. Crim. P.
15.05, subd. 2. The basis for the motion was an affidavit from Ohde that had been
recently obtained by appellant’s counsel, in which Ohde stated that he lied to appellant by
telling him that they had permission to pick up the tie plates. Appellant’s counsel told the
district court that he had been unable to meet with Ohde until recently because Ohde’s
counsel had prevented their meeting while Ohde was also being prosecuted for the theft.
Appellant’s counsel argued that if he had seen this statement from Ohde earlier, his
advice to appellant would have been “a little bit different than it was before” because “his
chance at trial might be better” with this evidence. In response, the prosecutor argued
that the plea was voluntary, intelligent, and accurate, and that the Ohde affidavit was
“nothing new,” as appellant had already stated at the plea hearing that he was told by
Ohde that they had permission to take the tie plates.
The district court denied appellant’s motion to withdraw his plea. The district
court summarized what had happened at the plea hearing, emphasizing that appellant had
already placed on the record his allegation that Ohde represented that they had
permission to take the tie plates, and further stressed that it had warned appellant that he
would not be able to later withdraw. The district court then sentenced appellant to 18
months in prison, denying his request for a durational and dispositional downward
departure. This appeal followed.
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DECISION
I.
Appellant first challenges the accuracy of his Alford plea. While appellant did not
raise this issue as a ground for withdrawal in his motion before the district court, “[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.” Brown v. State, 449
N.W.2d 180, 182 (Minn. 1989). If the record demonstrates that a plea is invalid, the
defendant must be allowed to withdraw his or her plea under the manifest injustice
standard of Minn. R. Crim. P. 15.05, subd. 1. See State v. Theis, 742 N.W.2d 643, 646
(Minn. 2007). A defendant challenging a guilty plea has the burden of showing that the
plea was invalid. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). “Assessing the
validity of a plea presents a question of law that we review de novo.” Id.
A valid plea must be accurate, voluntary, and intelligent. Id. The requirement of
accuracy “protects a defendant from pleading guilty to a more serious offense than that
for which he could be convicted if he insisted on his right to trial.” Id. “A proper factual
basis must be established for a guilty plea to be accurate,” and the district court has the
responsibility to ensure that such proper factual basis is produced. Theis, 742 N.W.2d at
647, 648 (quotation omitted). A proper factual basis has been established when there are
“sufficient facts on the record to 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). A plea will be set aside if a proper factual basis is
lacking. State v. Warren, 419 N.W.2d 795, 798 (Minn. 1988).
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Here, appellant entered an Alford plea to the theft charge. A defendant who pleads
guilty through an Alford plea maintains his or her innocence, but concedes that there is
sufficient evidence to support a verdict of guilty. 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, 760 (Minn.
1977) (adopting the Alford plea procedure in Minnesota). Alford pleas allow district
courts to “accept a plea of guilty by an accused even though the accused claims he is
innocent 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.” Goulette, 258 N.W.2d at 760.
Thus, when a defendant enters an Alford plea, a “strong factual basis” must
support the plea due to “the inherent conflict in pleading guilty while maintaining
innocence.” Theis, 742 N.W.2d at 648–49. For Alford pleas, the “better practice” is to
have the factual basis supported with evidence discussed with the defendant at the plea
hearing, be it through interrogation of the defendant as to his or her conduct and the
evidence that would likely be presented at trial, introduction of documentary evidence or
witness testimony at the plea hearing, or a stipulation by the parties to a fact statement in
documents submitted to the court at the plea hearing. Id. at 649. In addition to a strong
factual basis, “the court must be able to determine that the defendant, despite maintaining
his innocence, agrees that [the] evidence the [s]tate is likely to offer at trial is sufficient to
convict.” Id. The “best practice” for ensuring this “critical” protection is to have the
defendant, on the record at the plea hearing, specifically admit that the state’s evidence
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“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.
Appellant argues that the factual basis adduced at the plea hearing was
insufficient to establish the requisite intent element of the crime with which he was
charged. Appellant was charged with aiding and abetting theft of items valued between
$1,000 and $5,000, under Minn. Stat. §§ 609.52, subd. 2(a)(1) and .05, subd. 1 (2012).
Under the aiding and abetting statute, the state was required to prove that appellant
“knew that his alleged accomplice[] [was] going to commit a crime and that [the
defendant] intended his presence or actions to further the commission of that crime.”
State v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007); see Minn. Stat. § 609.05, subd. 1
(imposing criminal liability for defendant who “intentionally aid[ed] . . . the other to
commit the crime”). Further, the theft statute required the state to prove that appellant
aided Ohde in “intentionally and without claim of right tak[ing] . . . possession of
movable property of another without the other’s consent and with intent to deprive the
owner permanently of possession of the property.” Minn. Stat. § 609.52, subd. 2(a)(1).
Appellant claims that “the [s]tate did not summarize evidence, such as what Ohde
would testify to at trial or some other statement Ohde had given, to establish that
appellant intentionally aided Ohde in the felony theft.” However, such direct evidence is
not the only way with which the state could prove appellant’s intent. As a state of mind,
intent “generally is proved circumstantially, by inference from words and acts of the actor
both before and after the incident.” State v. Johnson, 616 N.W.2d 720, 726 (Minn.
2000). For aiding and abetting liability, “[a] jury may infer the requisite state of mind
8
from a variety of facts, including presence at the scene of the crime, a close association
with the principal offender before and after the crime, a lack of objection or surprise
under the circumstances, and flight from the scene of the crime with the principal
offender.” State v. Bahtuoh, 840 N.W.2d 804, 810 (Minn. 2013).
The record of the plea hearing1 shows that appellant’s Alford plea is supported by
a sufficient factual basis. At the plea hearing, defense counsel and the prosecutor both
discussed with appellant the evidence that would be presented against him by the state at
trial, and the district court further took judicial notice of the facts in the complaint to
support the Alford plea. Appellant admitted that he and Ohde repeatedly drove his
vehicle to private property and loaded the tie plates into his vehicle, and that he knew the
metal would be recycled for monetary gain. Appellant acknowledged that the state would
present receipts showing that the stolen tie plates had been sold to the recycling center.
Appellant further acknowledged that the state would call railroad personnel to testify that
they had not given appellant or Ohde permission to take the tie plates, and had in fact set
up a surveillance system to combat theft of this property.
1
In its brief, the state describes, in some detail, the content of photographs depicting the
site of the alleged theft. But these photographs, as well the accompanying police reports,
were not entered as exhibits at the plea hearing and therefore cannot be considered by this
court on appeal in determining whether Jones’s plea had sufficient factual support at the
plea hearing. See Minn. R. Crim. P. 28.02, subd. 8 (“The record on appeal consists of the
papers filed in the district court, the offered exhibits, and the transcript of the
proceedings, if any.”). We remind parties and district courts that the “better practice” for
supporting Alford pleas is to admit this type of evidence into the record, to ensure that
such pleas are not “cavalierly accept[ed]” by district courts and to give this court a more
complete record to review on appeal. Goulette, 258 N.W.2d at 761.
9
This factual basis was sufficient for the district court to conclude that there was a
“strong probability” that appellant would be convicted, notwithstanding appellant’s
claims of innocence. Theis, 742 N.W.2d at 649. Even if appellant and Ohde testified at
trial as to appellant’s belief that the tie plates were being taken with the permission of the
railroad, this would not negate the state’s circumstantial evidence of intent, as a jury
would necessarily have to “determine[] the credibility and weight given to the testimony
of individual witnesses” and decide whether appellant truly believed that he and Ohde
had permission to take the tie plates. State v. Olhausen, 681 N.W.2d 21, 26 (Minn.
2004). Because it is highly probable that the evidence acknowledged by appellant at the
plea hearing would lead a jury to conclude that appellant knew that he and Ohde were
taking the tie plates without the consent of the railroad, the factual basis adduced at the
plea hearing sufficiently established the intent element of appellant’s aiding and abetting
offense. Because an adequate factual basis was established in the record to support
appellant’s Alford plea, we conclude that his plea was accurate and thus valid.
II.
Appellant next argues that the district court abused its discretion by failing to
allow him to withdraw his plea based upon the affidavit he obtained from Ohde. Because
appellant made his plea withdrawal motion at the sentencing hearing, the district court
could have, “[i]n its discretion,” allowed plea withdrawal “if it [was] fair and just to do
so.” Minn. R. Crim. P. 15.05, subd. 2. A defendant does not have an absolute right to
withdraw a plea before sentencing because such an absolute right “would undermine the
integrity of the plea-taking process.” Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).
10
In considering whether it is fair and just to allow a defendant to withdraw a plea, the
district court is required to consider 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. The defendant bears the burden of
advancing reasons to support withdrawal, while the state bears the burden of showing
resulting prejudice. Id. We review the district court’s denial of a plea withdrawal motion
under the fair-and-just standard for an abuse of discretion, reversing “only in the rare
case.” Kim, 434 N.W.2d at 266.
Appellant argues that he supplied the district court with a fair and just reason for
withdrawing his plea: that the affidavit appellant’s counsel was able to obtain from Ohde
sufficiently buttressed appellant’s claim that he thought the two had permission to take
the tie plates from the railroad so as to raise “a factual question as to whether appellant
actually committed the crimes.” Essentially, appellant appears to be arguing that the
affidavit from Ohde, which his lawyer was only able to obtain after the plea hearing,
sufficiently bolsters his defense such that he would have chosen to proceed to trial rather
than enter the Alford plea if he had had the statement earlier.
Appellant’s argument is unavailing. While he contends that this newly-obtained
evidence “establish[es] a fair and just reason” to allow for withdrawal of his plea, he does
not show how the district court abused its discretion in concluding otherwise. The record
shows that appellant’s counsel was aware of appellant’s claim that he had permission to
take the tie plates, as he elicited this information from appellant at the plea hearing.
Although the Ohde affidavit corroborates appellant’s version of events, it does not alter
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appellant’s version. The state had placed Ohde on its witness list and appellant
acknowledged at the plea hearing that the state would likely call him. Further, in his
Alford plea, appellant acknowledged that he understood all of the state’s evidence and
agreed that there was a substantial likelihood that a reasonable jury would convict him
based on the allegation and evidence, and that that was why he was pleading guilty.
Appellant agreed that conviction was likely, even though he maintained that he lacked the
necessary criminal intent because Ohde had indicated that they had permission to take the
tie plates. In entering his Alford plea, appellant gave up his right to litigate the intent
issue, and the district court did not abuse its discretion by concluding that the affidavit
was insufficient to allow him to withdraw his plea and proceed to trial.
Appellant also argues that the state’s failure to show prejudice resulting from the
plea withdrawal is further proof that the district court abused its discretion. Contrary to
his assertion, the state was not required to prove prejudice for the district court to deny
the plea withdrawal request here. “Even when there is no prejudice to the state, a district
court may deny plea withdrawal under rule 15.05, subdivision 2, if the defendant fails to
advance valid reasons why withdrawal is fair and just.” State v. Cubas, 838 N.W.2d 220,
224 (Minn. App. 2013), review denied (Minn. Dec. 31, 2013). The state’s failure to
assert prejudice did not preclude the district court from exercising its discretion to deny
appellant’s plea withdrawal motion given his lack of a valid reason for withdrawal.
This is not the “rare case” in which the district court abuses its discretion by
denying plea withdrawal under Minn. R. Crim. P. 15.05, subd. 2. Kim, 434 N.W.2d at
12
266. Based on this record, we conclude that the district court did not abuse its discretion
in denying appellant’s motion to withdraw his Alford plea.
Affirmed.
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