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This opinion will be unpublished and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
A16-1771

State of Minnesota,
Respondent,

vs.

Mark Alan Peterson,
Appellant.

Filed October 16, 2017
Affirmed
Kirk, Judge

Polk County District Court
File No. 60-CR-14-731

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

Greg Widseth, Polk County Attorney, Crookston, Minnesota (for respondent)

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

Considered and decided by Cleary, Chief Judge; Kirk, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant asks the court to vacate his Alford plea to fourth-degree controlled -
substance crime, arguing that (1) the district court erred in accepting his plea because it

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was inaccurate and invalid; and (2) the district court abused its discretion in denying his
presentence motions to withdraw his plea. We affirm.
FACTS
On April 22, 2014 , law enforcement officers responded to reports of drug dealing
in a truck in the Crookston Public Library parking lot. Officers located the suspect truck
in the parking lot with three individuals inside. The driver was appellant Mark Alan
Peterson, and the passengers were appellant’s cousin D.S. and appellant’s now -girlfriend
V.Y. Appellant went inside the library, and officers made contact with D.S. and V.Y.
Appellant, D.S., and V.Y. came from a friend’s house and had also been at a bar
earlier that day. In speaking with law enforcement, V.Y. initially denied any drug dealing.
But then she said that appellant had crushed and snorted pills earlier that day and that while
they were sitting in the truck appellant gave D.S. a little white pill from a pill bottle in his
pocket. V.Y. explained that D.S. took the pill, crushed it and snorted it, but did not pay
appellant. V.Y. said that appellant did not give her any pills. In a later November 2015
statement, V.Y. said she could not remember what happened.
D.S. left the scene by bike but gave a recorded statement to law enforcement the
next day. D.S. admitted that appellant gave him a white pill and that he ingested it. D.S.
refused to give a urine sample to confirm controlled-substance use.
Appellant also spoke with law enforcement at the scene and provided inconsistent
statements about what happened. Appellant initially denied drug dealing. Appellant said
that he was o n probation and that he had not consumed alcohol or taken controlled

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substances. Appellant informed the officer that he had a prescription pill bottle with him ,
which was for ten 325 milligram (mg) hydrocodone-acetaminophen pills and said that he
takes his pills as prescribed. There were nine full pills and four half-pills in the pill bottle,
which was the equivalent of twelve 325 mg hydrocodone-acetaminophen pills. Appellant
explained that he has many prescriptions and often combines leftover pills into one bottle.
Appellant said that he may have given D.S. one of his pills because D.S. was complaining
about back pain , but also said that he could not remember. When the officer asked
appellant if he gave D.S. a pill for his back pain, appellant acknowledged that he had done
so. But then, appellant again denied giving or selling D.S. a pill and said that D.S. may
have taken a pill himself. He also said that the pill bottle was in the ashtray of his truck all
day, and D.S. could have taken a pill without him knowing.
In another statement given at the scene, appellant said that D.S. took a pill from the
bottle in appellant’s ashtray for his back pain and swallowed it before appellant could stop
him or try to stop him. Appellant reiterated that he was on probation and that it was illegal
to give someone else his pills , but also said again that he could not remember what
happened. When the officer pressed appellant to be honest and asked him if he had helped
D.S. with his pain by giving him a pill, appellant agreed that was “pretty much” what had
happened.
At the April 2016 plea hearing, the parties proposed an Alford-plea agreement.
North Carolina v. Alford , 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970) (holding that a
defendant may plead guilty, while maintaining his innocence, to take advantage of a plea

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bargain if the defendant agrees that there is sufficient evidence for a jury to find him guilty
at trial). The parties agreed that sentencing would be decided by the court at a later date,
after hearing arguments from both parties. Based on appellant’s criminal-history score and
custody status, if convicted of a fourth-degree controlled -substance crime, he faced a
presumptive prison commitment of 33 months and possible career -offender status.1 The
plea agreement provided that the state would not seek an aggravated sentence based on
career-offender status, would not seek more than a 30 -month prison sentence to run
concurrent with appellant’s parole, and that if the court ordered probation, the state would
recommend five years instead of ten. Appellant’s probation agent also agreed not to pursue
a parole violation if appellant pleaded guilty. The agreement also provided that both parties
could be heard at sentencing regarding a possible downward dispositional or durational
departure, but that ultimately the court would decide whether appellant received probation,
or went to jail or prison, and for how long.
The court accepted appellant’s Alford plea, finding it to be knowing, intelligent, and
voluntary. Following appellant’s plea, but prior to sentencing, appellant twice moved the
court to withdraw his plea, and the court twice denied his request. The court sentenced
appellant to 29 months in prison in August 2016. This appeal follows.

1 If he had been sentenced as a career offender, appellant could have faced an aggravated
durational departure from the presumptive sentence up to the statutory maximum. Minn.
Stat. § 609.1095, subd. 4 (2012); Minn. Sent. Guidelines II.D.3.b.(9) (2013). But the
prosecutor indicated at the plea hearing that if the court concluded that he was a career
offender, it could sentence him up to double the presumptive sentence, which here would
have been 66 months. Instead, the state agreed not to seek career-offender status as part of
the agreement.

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D E C I S I O N
I. The district court did not err in finding that appellant’s Alford plea was
accurate and valid.
Appellant asks this court to vacate his conviction and allow him to stand trial
because his Alford plea was inaccurate and invalid. Appellant does not claim that his plea
was involuntary or unintelligent. Appellant argues that the district court erred in accepting
his Alford plea because appellant did not clearly agree that there was a strong probability
that he would be convicted at trial based on the state’s expected evidence. Appellant also
contends that he never agreed that V.Y. and D.S. would testify in accordance with their
prior statements and that he only reluctantly agreed that a jury could find him guilty if they
believed the evidence against him.
Whether a plea is valid presents a question of law that this court reviews de novo.
State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). At any time, “the court must allow a
defendant to withdraw a guilty plea upon a timely motio n and proof to the satisfaction of
the court that withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P.
15.05, subd. 1. “Manifest injustice occurs if a guilty plea is not accurate, voluntary, and
intelligent, and thus the plea may b e withdrawn.” Perkins v. State, 559 N.W.2d 678, 688
(Minn. 1997). To be accurate, a plea must be established on a proper factual basis. State
v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).
“[C]areful 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.” State v. Theis, 742 N.W.2d 643, 648-49 (Minn. 2007). “[T]he court must be

6
able to determine that the defendant, despite maintaining his innocence, agrees that
evidence the [s]tate is likely to offer at trial is sufficient to convict.” Id. at 649. The
preferred practice is to discuss the factual basis with the defendant on the record and for
the defendant to acknowledge “that the evidence the [s]tate 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. An Alford plea may be accepted when
the state offers “a strong factual basis for the plea and the defendant clearly expresse[s] his
desire to enter the plea based on his belief that the [s]tate’s evidence would be sufficient to
convict him” at a trial. Id. at 647.
Based on our thorough review of the record, in particular the April 2016 plea
hearing, we conclude that the district court did not err in finding that appellant’s Alford
plea was accurate and supported by a proper factual basis . Before accepting appellant’s
plea, the court and state explained the Alford-plea process, appellant’s rights, and the
proposed terms of the plea agreement, and appellant received additional time to discuss his
options with standby counsel. Appellant said that he had entered Alford pleas before, and
that he understood t hat if he wanted to proceed he would have to agree that the jury may
find him guilty on the evidence and that there was enough evidence to convict him.
In establishing a factual basis for appellant’s plea, the state said it would call the
reporting officers, as well as V.Y. and D.S., to testify at a trial. Appellant agreed that V.Y.
told law enforcement on the date of the offense that she saw appellant give D.S. a pill and
saw D.S. take it. Appellant made counterarguments but ultimately acknowledged that if

7
V.Y. testified consistently with her prior statement that the jury would receive that evidence
at trial. Appellant also agreed that if D.S. testified consistently with his prior statement,
that D.S. would testify that appellant gave him a white pill, and that D.S. took the pill ,
which was hydrocodone. Appellant initially said that a white pill did not necessarily mean
it was hydrocodone but then agreed that was what D.S. said. Thus, appellant acknowledged
the anticipated evidence of the state at a trial.
Appellant indicated that he read the complain t and reviewed all of the evidence
against him, including the police reports and the audio and video recordings . Appellant
admitted telling the officer that he gave the hydrocodone pill to D.S. Appellant also
conceded that he gave inconsistent statements to law enforcement and that the state would
point out the inconsistencies at trial. Appellant acknowledged that if a jury concluded that
there was sufficient evidence that he gave D.S. a hydrocodone pill, it would also conclude
that he did so illegally. The court also accepted discovery evidence to support the factual
basis for appellant’s plea.
Appellant did not initially respond when the state asked if he believed that there was
a substantial likelihood that the jury could conclude that he gave a hydrocodone pill to D.S.
based on the evidence against him. The state c larified that it was not asking if appellant
believed the evidence , but if he thought that a jury could conclude beyond a reasonable
doubt that he gave D.S. the pill. Appellant then responded: “Yeah, yeah, . . . I’d say that
some jurors might . . . find somebody guilty on that evidence.” Appellant said that there

8
was “a lot of gray” but that “if [the jurors] believed that evidence, I do believe they would
convict me.”
Throughout the plea hearing, appellant questioned his decision to take the plea
agreement and weighed his options. Ultimately, appellant acknowledged that it was a
“fair” and “pretty gracious . . . offer,” and noted that the case was putting a lot of strain on
him; and even though he thought he had “as good a chance of winning as losing ,” that his
counsel, girlfriend, and probation officer all thought he should proceed, and that it was
probably in his “best interests to take the plea.” When the court asked if appellant wanted
to proceed and take advantage of the plea agreement, he replied, “yup.”
The court accepted appellant’s Alford plea and found that there was sufficient
evidence for a guilty jury verdict based on the record facts and discovery evidence
submitted. The court also acknowledged that it was not an easy decision for appellant to
take the plea but that his plea was voluntary, knowing, and intelligent.
We conclude that the record shows that appellant’s Alford plea was accurate and
supported by sufficient evidence, as the district court determined. Appellant struggled with
the decision to plead guilty, but he also actively participated in the plea hearing, answered
and asked questions, explained the process and the terms of the plea agreement, and
acknowledged the sufficiency of the evidence that the state expected to present against him.
See Theis, 742 N.W.2d at 649. While appellant maintained his innocence and did not agree
with the evidence against him, he did acknowledge that the evidence the state would likely

9
offer at a trial, if believed, was substantial enough for a jury to find him guilty, as required
for a valid Alford plea.2
Thus, the record shows that the district court did not err in accepting appellant’s
Alford plea. We find no manifest injustice that would require this court to allow appellant
to withdraw his plea under Minn. R. Crim. P. 15.05, subd. 1.
II. The district court did not abuse its discretion in denying appellant’s
presentence motions to withdraw his Alford plea.
Appellant argues that the district court abused its discretion in denying his motions
to withdraw his guilty plea before sentencing. Prior to sentencing, the district court may
allow a defendant to withdraw a plea if the defendant proves that “it is fair and just to do
so.” Minn. R. Crim. P. 15.05, subd. 2; Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).
“Although this standard is less demanding than the manifest injustice standard, it does not
allow a defendant to withdraw a guilty plea ‘for simply any reason.’” Theis, 742 N.W.2d
at 646 (quoting State v. Farnsworth, 738 N.W.2d 364, 372 (Minn. 2007)). A district court’s
decision to allow plea withdrawal under the fair -and-just standard prior to sentencing is

2 In Alford, the significant benefit to defendant from taking the plea bargain, in addition to
the overwhelming evidence against him, bolstered the intelligence of his plea. 400 U.S. at
37-38, 91 S. Ct. at 167-68. The United States Supreme Court found that defendant had
“much to gain by pleading,” and “absolutely nothing to gain by a trial,” and that he “quite
reasonably” decided to plead guilty to a lesser offense and receive 30 years in prison instead
of going to trial and facing a possible death sentence. Here, the state proposed 30 months
in prison instead of the presumptive 33 months, no career -offender status, and an
opportunity to argue for a downward departure. As a career offender, the state would have
sought a sentence of 66 months. Although the district court was not required to consider
the extent of the benefit appellant would receive in determining the validity of his plea, we
would suggest caution in accepting Alford pleas where, as here, the plea is tortured and the
benefit of the plea bargain is less substantial than Alford contemplated.

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discretionary. Raleigh, 778 N.W.2d at 97. The district court must consider the defendant’s
reasons for withdrawal and any prejudice to the state. Minn. R. Crim. P. 15.05, subd . 2.
We review the district court’s decision for an abuse of discretion, reversing only in a rare
case. Raleigh, 778 N.W.2d at 97.
A. Appellant’s first presentence motion to withdraw his Alford plea
In appellant’s first motion to withdraw his guilty plea, appellant argued that he was
set up, that D.S. and V.Y. both initially told officers that there were no drugs, and that when
V.Y. gave her statement she was under the influence and was coached by law enforcement.
At the June 2016 hearing on the motion, a ppellant said that he did not know there was a
mandatory prison commitment and thought that he would receive a downward durational
departure or probation. Appellant also claimed that he was not taking his pain medication
at the time of the plea hearing, so he was not in “[his] right state of mind,” and that he was
forced to agree to the plea because he had no driver’s license and no transportation to get
to trial from out -of-state where he lives . Appellant also said that he was going to hire a
private attorney. The state countered that a changed mind did not justify the withdrawal of
a valid plea and said that appellant had known about the mandatory commitment since the
date of the complaint two years earlier. The state also noted that appellant chose to
represent himself with advisory counsel.
The court considered and rejected each of appellant’s reasons and concluded that he
had not sufficiently demonstrated a fair or just basis to withdraw his plea. The court said
that appellant’s request to hire counsel had been thoroughly addressed throughout the

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proceedings and appellant had changed his mind several times before deciding to represent
himself.3 The court flatly rejected appellant’s claim that he did not know about the
mandatory commitment. The court recalled appellant’s concern at the plea hearing about
returning to prison, but noted that appellant was clearly facing a prison commitment. The
court said that a ppellant understood that he would be able to argue for a downward
departure, but that there was no agreement on sentencing, and that ultimately the judge
would decide his sentence.
The court also refuted appellant’s argument that he did not have a clear mind at the
plea hearing and that he felt p ressure to take the plea due to his pain and a lack of
transportation. The court said that it had thoroughly questioned appellant about his
decision and his state of mind at the time of the plea , including whether he was taking all
of his medications as prescribed. The court said that it was confident that appellant knew
what he was doing, had a clear mind, and was able to make a good choice at the time. The

3 Appellant discharged the public defender’s office in late 2014, intending to represent
himself. The district court appointed advisory counsel for appellant based on concerns
about the fairness of the process in a January 2015 order. The district court clarified the
limited role of appellant’s advisory counsel in a July 2015 order. The court noted at that
time that appellant had the option to hire his own counsel, file a new application for a public
defender, or proceed pro se with advisory counsel. The court explained the differences in
these options to appellant at multiple hearings. Throughout the proceedin gs, appellant
indicated that he intended to hire private counsel but never did so. At a March 2016 motion
hearing, the court outlined appellant’s history of requesting time to hire counsel but then
failing to do so. The record shows that the court confirm ed multiple times during the
proceedings that appellant was choosing to represent himself. At his plea hearing,
appellant requested, and the court appointed, his advisory counsel as his attorney going
forward for the purposes of sentencing only. The attorney remained in an advisory capacity
for appellant’s motions to withdraw his guilty plea.

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court added that all of the reasons presented by appellant to withdraw his plea had been
previously addressed by the court at prior hearings or in prior written orders. The court
also found that the state would be prejudiced by holding a trial so many months later.
The record supports the district court’s determination that appellant understood the
plea agreement and the possible outcomes, and that he freely and voluntarily chose to plead
guilty via Alford. At the hearing on the motion to withdraw, the court weighed the reasons
presented by appellant before concluding that he had not met his burden to show that it was
fair and just to allow him to withdraw his plea. Because the district court concluded that
appellant did not advance a valid reason in his motion or at the hearing on the motion why
withdrawal was fair and just, the state was not required to show prejudice, and we need not
consider the district court’s finding of prejudice to the state. State v. Cubas, 838 N.W.2d
220, 224 (Minn. App. 2013), review denied (Minn. Dec. 31, 2013). The district court did
not abuse its discretion in denying appellant’s first motion to withdraw his plea prior to
sentencing.
B. Appellant’s second presentence motion to withdraw his Alford plea
Appellant filed a second motion to withdraw his guilty plea prior to sentencing, and
the district court heard this request at the August 2016 sentencing hearing. Appellant
argued that he was not guilty, that the state did not have enough evidence to convict him,
and that he was in pain at the plea hearing, which influenced his decision. The state argued
that appellant was repeating the same arguments that the cour t had previously considered
and rejected. The court agreed and denied appellant’s second motion to withdraw his plea.

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The court reminded appellant that allowing him to withdraw his plea was
discretionary and deferred to its analysis from the June 2016 hearing. The court summarily
rejected appellant’s concerns and reasons for withdrawal and found that appellant was
intentionally delaying the case . The court again noted that it had discussed appellant’s
well-being at the time of the plea hearing and that appellant said he was ready and able to
proceed. The court again acknowledged that appellant struggled with his choice but said
that appellant had a clear understanding of the plea agreement and the possible outcomes
before he accepted the plea agreement. The court again concluded that appellant had not
provided a sufficient basis to show that it was fair and just to allow him to withdraw his
plea, and the court again found prejudice to the state if the plea was withdrawn and a trial
commenced. The court denied appellant’s second motion to withdraw his plea and
sentenced him to 29 months in prison and otherwise followed the plea agreement.
The district court’s conclusion that appellant failed to present a valid reason under
the fair-and-just standard to warrant withdrawal of his plea is supported by the record, and
the court did not abuse its discretion in deny ing appellant’s second presentence motion to
withdraw his plea. Because the court again found no valid reason for withdrawal, this court
need not consider the court’s finding of prejudice to the state.
Affirmed.