State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1062

State of Minnesota,
Respondent,

vs.

Bradley Stephen Rierson,
Appellant.

Filed April 17, 2017
Affirmed
Johnson, Judge

Itasca County District Court
File No. 31-CR-14-2643

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

John J. Muhar, Itasca County Attorney, David S. Schmit, Assistant County Attorney,
Grand Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant
County Attorney, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Johnson, Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Bradley Stephen Rierson pleaded guilty to five counts of felony communication
with a minor describing sexual conduct . On direct appeal, h e argues that his guilty pleas
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are invalid on the ground that the statute underlying his convictions is unconstitutional.
We conclude that the statute is not unconstitutional and, therefore, affirm.
FACTS
In December 2012, a woman reported to law enforcement that her 14 -year-old
daughter was receiving sexually oriented messages via Facebook. An investigation
revealed that Rierson, who then was 40 years old, had exchanged hundreds of messages
with the girl from September to December of that year.
In September 2014, the state charged Rierson with nine counts of felon y
communication with a minor describing sexual conduct, in violation of Minn. Stat.
§ 609.352, subd. 2a(2) (2014). The case went to trial in January 2016. Before the case
was submitted to the jury, Rierson and the state entered into a plea agreement. Ri erson
pleaded guilty to five counts, and the state dismiss ed the remaining four counts. The
district court accepted the guilty pleas. On April 5, 2016, the district court imposed
concurrent sentences of 15, 20, 25, 30, and 36 months of imprisonment. Rierson appeals.
D E C I S I O N
Rierson argues that his guilty pleas are invalid because the statute on which the
convictions are based, Minnesota Statutes section 609.352, subdivision 2a(2) (2014) , is
unconstitutional.
A.

Before considering the merits of Rierson’s argument, we consider whether Rierson
has waived his right to challenge his convictions on the ground that the statute is
unconstitutional.
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In general , “a guilty plea by a counseled defendant operates as a waiver of all
nonjurisdictional defects.” State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980); see
also McLaughlin v. State , 291 Minn. 277, 280-82, 190 N.W.2d 867 , 870 -71 (1971).
According to the general rule, if a defendant “solemnly admit[s] in open court that he is in
fact guilty of the offense with which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred prior to the entry of
the guilty plea.” Lothenbach, 296 N.W.2d at 857 (quoting Tollett v. Henderson, 411 U.S.
258, 267, 93 S. Ct. 1602, 1608 (1973) ). But Rierson does not complain of a procedural
defect in his case occurring before his plea; rather, he contends that the entire prosecution
is invalid because the statute on which it is based is unconstitutional.
We are unaware of any Minnesota caselaw concerning whether such an argument is
waived by a guilty plea. Because Rierson’s argument is based on his rights under the
United States Constitution, see Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709,
1712 (1969), it is appropriate to refer to federal caselaw. The United States Court of
Appeals for the Eighth Circuit has considered the issue and synthesized the caselaw by
stating,
a person may, despite a valid guilty plea, pursue a certain type
of claim that has been variously defined as a claim that attacks
“the State’s power to bring any indictment at all,” United States
v. Broce, 488 U.S. 563, 575, 109 S. Ct. 757, 765 (1 989), that
protects a defendant ’s “righ t not to be haled into court,”
Blackledge v. Perry , 417 U.S. 21, 30, 94 S. Ct. 2098, 2104
(1974), and that “the charge is one which the State may not
constitutionally prosecute,” Menna v. New York, 423 U.S. 61,
62 n.2, 96 S. Ct. 241, 242 n.2 (1975) (per curiam).

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Weisberg v. Minnesota, 29 F.3d 1271, 1279 (8th Cir. 1994). The Eighth Circuit applied
this rule of law in United States v. Seay, 620 F.3d 919 (8th Cir. 2010), a case in which the
defendant pleaded guilty to an offense based on a statute that , he a sserted, was
unconstitutional. Id. at 922. The court concluded that Seay’s argument raised the question
whether the state could “‘constitutionally prosecute’ him,” id. at 923 (quoting Menna, 423
U.S. at 62 n.2, 96 S. Ct. at 242 n.2 ), or whether “he shoul d never have been ‘haled into
court’ at all,” id. (quoting Blackledge, 417 U.S. at 30, 94 S. Ct. at 2104). Accordingly, the
court determined that Seay, by pleading guilty, had not waived his argument that the statute
underlying his conviction was unconstitutional. Id. The Eighth Circuit’s decision in Seay
is consistent with its prior opinions on the issue. See United States v. Morgan, 230 F.3d
1067, 1071 (8th Cir. 2000); Country v. Parratt , 684 F.2d 588, 589 n.1 (8th Cir. 1982);
Sodders v. Parratt, 693 F.2d 811, 812 (8th Cir. 1982) (per curiam).
In this case, Rierson argues that the statute setting forth the offenses to which he
pleaded guilty is unconstitutional. His ar gument, like the argument in Seay, raises the
question whether the state may constitutionally prosecute him for the offenses charged.
See Seay, 620 F.3d at 923. Thus, Rierson’s argument was not waived by his guilty plea.
B.
We now turn to the merits of Rierson’s argument. Rierson was convicted of
violating a statute that provides, in relevant part:
A person 18 years of age or older who uses the Internet,
a computer, computer program, computer network, computer
system, an electronic com munication system, . . . to commit
any of the following acts, with the intent to arouse the sexual
desire of any person, is guilty of a felony . . . :
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. . . .
(2) engaging in communication with a child or
someone the person reasonably believes is a child , relating to
or describing sexual conduct . . . .
Minn. Stat. § 609.352, subd. 2a(2).
On June 20, 2016, this court issued an opinion in which we concluded that section
609.352, subdivision 2a(2), is overbroad in violation of the First Amendment to the United
States Constitution and article I, section 3 , of the Minnesota Constitution and, thus, is
facially unconstitutional. State v. Muccio , 881 N.W.2d 149, 157-61 (Minn. App. 2016).
On July 1, 2016, Rierson filed a notice of appeal in this case. On August 23, 2016, the
supreme court granted the state’s petition for further review in Muccio. State v. Muccio,
No. A15-1951 (Minn. Aug. 23, 2016) (order). The supreme court issued its opinion in
Muccio last month, concluding that section 609.352, subdivision 2a(2), is not substantially
overbroad and, thus, not unconstitutional. State v. Muccio , 890 N.W.2d 914, 919 -29
(Minn. 2017). Because Rierson’s sole argument is identical to the defendant’s argumen t
in Muccio, the supreme court’s opinion in Muccio is dispositive.
Thus, Rierson’s guilty pleas are not invalid on the ground that the statute underlying
his convictions is unconstitutional.
Affirmed.