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This opinion will be unpublished and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
A16-1298

State of Minnesota,
Respondent,

vs.

Edward Keith Dembry,
Appellant.

Filed June 19, 2017
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-15-5801

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica M. Surges, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Pr esiding Judge; Peterson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Edward Keith Dembry challenges his conviction of first-degree criminal
sexual conduct. Dembry argues that the dist rict court erred by denying his presentence

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motion to withdraw his guilty plea because it was not supp orted by a sufficient factual
basis. He further argues that, even if his pl ea was accurate, the district court abused its
discretion by denying his mo tion because he establishe d reasons warranting plea
withdrawal under the fair-and-just standard. We reject Dembry’s arguments and affirm.
FACTS
In May 2015, respondent State of Minneso ta charged Dembry with first-degree
criminal sexual conduct, third-degree criminal sexual conduct, and second-degree assault.
The state alleged that, on March 3, 2015, police officers arrived at North Memorial Hospital
to investigate a sexual and phys ical assault. The officers spoke with L.R., who reported
that the previous night, Dembry, her boyfrie nd, had threatened her, repeatedly struck her
with his fists and a mop handle, and sexually assaulted her. The officers observed that L.R.
had a number of injuries, including lacerati ons and bruising. Po lice later located and
arrested Dembry.
On the day trial was set to begin, the par ties informed the district court that Dembry
had agreed to plead guilty to first-degree criminal sexual conduct in exchange for dismissal
of the remaining charges. Dembry executed a corresponding plea petition, which indicated
that he was not pleading guilty just to discharge the criminal matter and that he was in fact
guilty. However, during the process of estab lishing a factual basis for his guilty plea,
Dembry stated that he was not ready to proceed with the plea because L.R.’s version of the
incident in question was incorrect. The di strict court stopped the plea hearing, and
Dembry’s jury trial began that afternoon.

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The next day, during jury selection, De mbry’s counsel informed the district court
that Dembry was prepared to accept the plea agreement and ad mit the factual basis. The
district court then accepted Dembry’s plea petition, and Dembry and his defense counsel
engaged in the following exchange:
Q. Mr. Dembry, we’ve gone over the parts of the petition that
explain . . . that the Court won’t accept a plea from anyone who
claims to be innocent. And you signed a petition saying that
you don’t make any claim that you are innocent; is that correct?
A. Yes.
Q. In particular, the allegations in the case with respect to
Count 1 of the complaint, is that on . . . March 2nd of 2015 you
were in Hennepin County; is that true?
A. Yes.
Q. And that you engaged in sexual penetration with [L.R.]; is
that true?
A. Yes.
Q. That immediately prior to engaging in that sexual
penetration, you had committed an assault upon her, correct?
A. Yes.
Q. That assault involved significan t personal [injury] to her.
She was cut in a number of pl aces and bleeding quite a bit,
correct?
A. Yes.
Q. And there were pictures of that, correct?
A. Yes.
Q. And that as a result of that incident, you would agree that
when you engaged in the sexual penetration, it was without her
consent, correct?
A. Yes.
Q. And that the fact that you had so close in time committed an
assault upon her, would constitute coercion. Meaning she felt
forced into having sex, correct?
A. Yes.

Dembry also responded affirmatively to the state’s follow-up question, “Ultimately, sir, do
you agree that [L.R.], at that time, did not want to have sexual penetration with you and
that she was afraid of you and that is why she submitted to the sexual penetration?”

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After defense counsel and the state completed questioning Dembry, the district court
stated, “I do find that you made a knowing, in telligent, and voluntary waiver of your trial
rights. You’ve given me a sufficient factual basis to find you guilty.”
In the following weeks, Dembry filed a le tter with the district court requesting to
withdraw his plea, and his counsel filed a motion for a presentence plea withdrawal under
Minn. R. Crim. P. 15.05, subds. 1, 2. The district court held a hearing to address Dembry’s
plea-withdrawal motion and, in the event that the motion was denied, to sentence him.
After the parties presented their respective ar guments, the district court orally denied
Dembry’s plea-withdrawal motion, refere ncing only the standa rd from rule 15.05,
subdivision 1, and proceeded to sentencing. The district court later filed its written findings
of fact, conclusions of law, and order, denying Dembry’s plea-withdrawal motion under
both subdivisions 1 and 2 of rule 15.05.
Dembry appeals.
D E C I S I O N
I. The district court did not err by deny ing Dembry’s motion to withdraw his
plea under the manifest-injustice standard.

Dembry argues that the district court e rred by denying his motion to withdraw his
guilty plea because the factual basis was established through conclusory, leading questions.
Dembry further argues that his plea was inacc urate because the factual basis established
did not meet the elements of first-degree criminal sexual conduct.
“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). But the district court must permit a defendant

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to withdraw a plea at any time if such wit hdrawal is necessary to correct a manifest
injustice. Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice exists if a guilty plea is
not valid. Raleigh, 778 N.W.2d at 94. We review the validity of a guilty plea de novo. Id.
Minnesota law recognizes three requisites for a valid guilty pl ea: it must be
accurate, voluntary, and intelligent. State v. Theis , 742 N.W.2d 643, 646 (Minn. 2007).
Dembry’s arguments challenge only the accuracy of his plea . For a guilty plea to be
accurate, it must be established by a proper factual basis. Id. at 647. Requiring that a plea
be accurate protects the defendant from pleading guilty to a more serious charge than he or
she could be convicted of at trial. State v. Wukawitz , 662 N.W.2d 517, 521-22 (Minn.
2003). To satisfy this requirement, “there must be sufficient facts on the record to support
a conclusion” that the defendant is guilty of the crime charged. State v. Iverson , 664
N.W.2d 346, 349 (Minn. 2003) (quotation omitted).
To convict Dembry of first-degree crimin al sexual conduct, the state was required
to prove that he “use[d] force or coercion to accomplish sexua l penetration” with another
person and caused that person personal injury. Minn. Stat. § 609.342, subd. 1(e)(i) (2014).
Dembry argues that he did not admit to any elements of first-degree criminal sexual
conduct in responding to his counsel’s questioning; instead, he maintains that his answers
merely admitted that there were allegations of such a crime. We are not persuaded. While
defense counsel began the collo quy with Dembry by referenc ing the allegations in the
complaint, counsel then identified specific allegations and asked whethe r each allegation
was true or correct. By answering “yes,” Dembry did not merely acknowledge the
existence of each allegation—he admitted the facts alleged. Specifically, Dembry admitted

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that he assaulted L.R., which caused L.R. to fear him and constituted coercion, immediately
prior to engaging in sexual penetration with her. He further admitte d that his assault on
L.R. inflicted injuries, which were documented through photographs.
Dembry is correct in asserting that hi s testimony regarding the factual basis was
composed of responses to leading questions . Although Minnesota caselaw discourages
district courts from using leading questions and encourages “district courts to take an active
role in asking direct questions of defendants during plea he arings,” a guilty plea is not
rendered invalid by this “disfavored format” so long as the factual basis elicited is sufficient
to support an accurate plea. Raleigh, 778 N.W.2d at 95-96. Here, Dembry’s answers met
the statutory elements of first-degree crimin al sexual conduct. Accordingly, Dembry’s
guilty plea was accurate, and the district court did not err by denying his motion under rule
15.05, subdivision 1.
II. The district court did not abuse its dis cretion by denying Dembry’s motion to
withdraw his plea under the fair-and-just standard.

Dembry argues that the district court did not apply the fair-and-just standard in
denying his motion to withdraw his guilty pl ea under rule 15.05, subdivision 2. Dembry
further argues that the district court abused its discretion by denying his motion under the
fair-and-just standard when he claimed that he was unhappy with his prior counsel and felt
coerced into pleading guilty.
Before a sentence is entered, the district court may allow a defendant to withdraw a
plea “if it is fair and just to do so.” Minn. R. Crim. P. 15.05, subd. 2. The fair-and-just
standard is less demanding than the manife st-injustice standard, but it does not allow a

7
defendant to withdraw a plea for simply any reason. Theis, 742 N.W.2d at 646 (quotation
omitted). Under this standard, the district c ourt must consider (1) the reasons to support
withdrawal and (2) the prejudice granting the motion would cause to the state based on its
reliance on the plea. Raleigh, 778 N.W.2d at 97. The defe ndant bears the burden on the
first factor, and the state on the second. Id. “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). We review the district
court’s decision to deny a plea-withdrawal motion under rule 15.05, subdivision 2, for an
abuse of discretion, reversing only in the rare case. Raleigh, 778 N.W.2d at 97.
We first address Dembry’s argument that th e district court failed to apply the fair-
and-just standard and, instead, considered only the more demand ing manifest-injustice
standard in denying his plea-withdrawal motio n. In support of this argument, Dembry
points to the district court’s oral denial of his motion, where the district court referenced
only the standard from rule 15.05, subdivision 1. However, as Dembry acknowledges, the
district court later filed its written findings of fact, conclusions of law, and order, in which
the district court stated that Dembry so ught to withdraw his plea under rule 15.05,
subdivisions 1 and 2. In its order, the dist rict court applied the correct standards for
Dembry’s motion under each respective subdivision. The district court thus did not limit
its analysis to the manifest-injustice standard.
In addition, Dembry argues that the distri ct court abused its discretion by denying
his motion because his complaints about hi s prior counsel and coercion warranted

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withdrawal of the plea. The district court rejected Dembry’s argument regarding his prior
counsel as irrelevant, noting that such comp laints involved an at torney who had ceased
representing Dembry a number of months befo re his guilty plea. And, contrary to
Dembry’s assertion that he felt coerced into pleading guilty, the dist rict court found that
Dembry was not coerced, noting that Dembry “acknowledged that no one had coerced or
forced him to plead guilty,” and that “[n]othing in the record indicates [that Dembry] was
coerced.” Based on these fi ndings, the district court c oncluded that Dembry had not
sustained his burden of establishing a fair-and-just reason for plea withdrawal.
The district court’s rejection of Dembry’s prior-counsel argument was sound. The
record establishes that Dembry’s prior counsel was discharged several months before the
plea, and there was no assertion that his replacement counsel provided inadequate
representation. Instead, Dembry merely cl aimed that his prior counsel’s advice was
inconsistent with the advice he received from his replacement counsel. The record also
supports the district court’s rejection of De mbry’s coercion argument. The district court
respected Dembry’s request to stop the initial plea hearing and proceed to a jury trial. Then,
during jury selection, Dembry expressed his desire to stop the trial and accept the plea
agreement. Dembry also denied any coercion several times and stated that he wanted to
enter the plea. Accordingly, because the reco rd supports the district court’s findings and
conclusion, we conclude that the district court did not abuse its discretion by denying
Dembry’s motion under the fair-and-just standard.
Affirmed.