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This opinion will be unpublished and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
A16-1778

State of Minnesota,
Respondent,

vs.

Ronald James Fairbanks,
Appellant.

Filed May 8, 2017
Reversed and remanded
Cleary, Chief Judge

St. Louis County District Court
File No. 69DU-CR-16-1197

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

Mark S. Rubin, St. Louis County Attorney, Jessica J. Fralich, Assistant County Attorney,
Duluth, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Chief Judge; Worke, Judge; and Jesson, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
On appeal from his conviction, appellant Ronald James Fairbanks argues that his
guilty plea is invalid because the factual basis fails to establish that he knowingly violated
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the predatory offender registration requirements as a homeless offender. This matter was
assigned to the special term panel, after the state conceded that appellant was entitled to
relief and appellant requested expedited processing of the appeal. We reverse and remand.
FACTS
A complaint was filed on March 30, 2016, ch arging appellant with failing to register
as a predatory offender. The complaint alleged that appellant was required to register based
on a 1994 conviction of fourth -degree criminal sexual conduc t; that he has at least two
convictions for violating the registration requirements in 2002 and again in 2006; and that
he last registered on January 19, 2016, when he was released from the St. Louis County
Jail. At that time, appellant identified himself as homeless and was provided information
regarding his weekly registration requirements. The complaint alleged that as of March 9,
2016, appellant had not “completed a single homeless check-in” with law enforcement.
On April 5, 2016, the district court ordered a rule 20 evaluation. The rule 20 report
found appellant “both mentally ill and ment ally deficient to some degree.” The
psychologist concluded that appellant’s “short-term memory was impaired.” Although the
psychologist found appellant to be competent, he concluded that appellant “would require
repetition for information expected to be used in short-term memory or at the moment in
the courtroom for purposes of comprehension or trial.”
At a hearing on June 22, 2016, appellant’s counsel informed the district court that
appellant wished to enter a straight guilty plea, without any agreement from the state, and
that he planned to seek a dispositional departure at sentencing. Appellant was asked by his
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counsel if he was thinking clear ly, to which he responded: “This is the first time we
discussed this case, so, it’s -- it is what it is . I’m guilty.” When asked again if he was
thinking clearly, appellant stated: “I don’t know what to think right now. But I feel that
I’m guilty, so, yes, I’m totally aware of what you’re saying right now.” When asked by
counsel if he had any questions, appellant responded:
I wouldn’t be lying to you if I said I don’t remember, and I’m
guilty of the crime, but I don’t remember that I was supposed
to follow through with that. And I’m worried that when I go
to prison, when I get out I’m st ill not going to remember. So
what’s - - you know what I mean? It’s just, it scares the - - it
scares me a lot, Your Honor, and it bothers me to think like
this. But I don’t remember the actual crime . . . .

The court then stated: “Let’s see what we can do with the plea, Mr. Fairbanks, okay? And
then we’ll get to that.”
The prosecutor questioned appellant in an a ttempt to establish a factual basis for the
plea. Appellant responded by stating “Yes,” to the question of whether he is required to
register with the Minnesota Bureau of Criminal Apprehension; “Yes, sir,” to the question
of whether he was having trouble remembering to register; “Yes, sir,” to the question of
whether he knew he was obligated to regist er; and acknowledged that he has past
convictions for failing to register.
Appellant admitted that the state could in troduce documents showing that he was in
jail in January 2016 and that the jail “filled out [the] regi stration forms for [him].”
Appellant stated that he was homeless, and when asked if he knew that a homeless person
has particular requirements regarding regist ration, he stated: “That’s what I didn’t
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remember. . . . And that’s what I’m here fo r today because I didn’t follow through with
that.” Appellant answered in the affirmative that he did not remember to check in for “a
good period of time.”
The prosecutor stated: “And you understand that’s what makes you guilty because
that’s what you have to do?” Appellant responded: “Correct.” The prosecutor continued:
“If I told you if we went to trial, I would present evidence from officers that, the officers
whose job it is to keep those records, and they’d say you never checked in. Would you
allow the Court to rely on that?” Appellant responded: “Yes.” Appellant stated “No, sir,”
that he was not maintaining his innocence and agreed that he was admitting his guilt. When
asked if a jury would find him guilty, appellant stated: “I don’t know sir -- I can’t predict
that.” The prosecutor followe d up: “Do you think based on the evidence, the evidence
would show that you’re guilty?” Appellant responded: “Because I pled guilty today; yes,
sir.” Again the prosecutor asked: “But how about based on the evidence we’ve talked
about?” Appellant responded: “Yes, sir.”
The prosecutor concluded: “It’s sort of a, I guess, Alford hybrid. I’m fairly satisfied
that he’s acknowledged that he was supposed to register and didn’t.” The district court
accepted appellant’s plea.
At sentencing, appellant’s request for a dispositional departure was denied. The
district court noted appellant’s extensive criminal history and found him not to be
particularly amenable to probation. The district court imposed the presumptive 36-month
sentence. This appeal followed.
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D E C I S I O N
To be valid, a guilty plea must be accurate, voluntary, and intelligent. State v.
Raleigh, 778 N.W.2d 90, 94 (Minn. 2 010). A plea is accurate if the defendant presents a
factual basis sufficient to establish the elemen ts of the offense to which he is pleading
guilty. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994); Barnslater v. State, 805 N.W.2d
910, 914 (Minn. App. 2011). A defendant ma y challenge the lack of a factual basis to
support a guilty plea for the first time on appeal. See State v. Iverson , 664 N.W.2d 346,
349-50 (Minn. 2003). A challenge to the accuracy of a plea is a question of law that this
court reviews de novo. See Raleigh, 778 N.W.2d at 94.
The district court should not accept a plea “unless the record supports the conclusion
that the defendant actually committed an offense at least as serious as the crime to which
he is pleading guilty.” State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983). If a defendant
negates an essential element of the charged offense during the plea hearing, the factual
basis is inadequate because those statements are inconsistent with a plea of guilty. Iverson,
664 N.W.2d at 350. And a factual basis generally should not be established by the use of
leading questions. Raleigh, 778 N.W.2d at 95. Rather, a defendant should be asked “to
express in his own words what happened.” Lussier v. State, 821 N.W.2d 581, 589 (Minn.
2012).
In order to establish an adequate factual basis, it should be clear what offense was
committed or which statute was violated, to determine what elements the defendant needs
to admit at the plea hearing. In this case, the state never identified the specific offense
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charged. The complaint charges appellant with “Violation of Predatory Offender
Registration Requirements,” and cites Minn. St at. § 243.166, subd. 5(a). Subdivision 5,
however, is titled “Criminal penalty,” and only sets the criminal penalties for registration
violations. See Minn. Stat. § 243.166, subd. 5(a) (2014) (“A person required to register
under this section who knowingly violates any of its provisions . . . is guilty of a felony.”).
The predatory offender registration statute is complicated and includes a multitude of
possible violations. During the plea hearing, however, no specific provision of the statute
was mentioned and the elements of the offense to which appellant was pleading guilty were
not discussed.
Even if it is assumed that appellant was charged with failing to register as a homeless
person, in violation of Minn. Stat. § 243.166, subd. 3a(e) (2014), his plea is nevertheless
invalid because he did not adm it to a “knowing violation” of that section. Subdivision
3a(e) provides: “[I]f a person continues to lack a primary address, the person shall report
in person on a weekly basis to the law enforcement authority with jurisdiction in the area
where the person is staying.” Thus, assu ming appellant pleaded guilty under this
subdivision, he would have to admit facts su fficient to establish the following elements:
(1) he was required to register as a predator y offender; (2) he lacked a primary address;
(3) he failed to report in person on a weekly basis to the relevant law enforcement authority;
and (4) his failure to do so was knowing. Minn. Stat. §§ 243.166, subds. 3a(e), 5(a).
Appellant acknowledges that he admitted fact s to establish the first two elements:
he admitted that a 1994 conviction requires hi m to register and he admitted that he is
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homeless. With respect to the third element, he admitted that “a good period of time went
by” during which he did not check in, that he could not recall checking in with the Duluth
Police Department, and that he “didn’t follow through with that.” But he never specifically
admitted that he was required to check in on a weekly basis, and the prosecutor never
mentioned weekly check-ins. It is questionable whether a factual basis was established on
this third element.
With respect to the fourth element, appellant did not admit facts to establish that he
knowingly failed to register or knowingly violated the registration requirements. To satisfy
this requirement, a defendant must admit not only that he knew he was required to register,
but also that he knew at the time of his co nduct that his action or inaction violated the
registration statute. See State v. Watkins, 840 N.W.2d 21, 29-30 (Minn. 2013) (discussing
the phrase “knowingly violates this subdivisi on” as it relates to violation of the DANCO
statute); State v. Gunderson, 812 N.W.2d 156, 160-61 (Minn. App. 2012) (discussing the
phrase “knowingly violates ” as it relates to violation of an HRO). Appellant did not
understand the nature or requirements of th e homeless registration provisions. He stated
several times that he did not know or remember his registration obligation. His claims of
lack of knowledge or memory are corroborated by the rule 20 report that found he has
serious short-term memory lo ss and would need re petition to remember things. Because
the record fails to establish th at appellant knew he had to ch eck in on a weekly basis and
that he knowingly failed to do so, his guilty plea lacks a factua l basis and is not accurate.
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As such, it is invalid and he is entitled to plea withdrawal. See State v. Theis, 742 N.W.2d
643, 646 (Minn. 2007) (holding that withdrawal is required when plea is invalid).
Finally, despite the prosecutor’s suggestion that this was a “sort of a[n] . . . Alford
hybrid,” appellant did not maintain his innocence and he was not pleading guilty in order
to obtain the benefits of any plea bargain. As such, this plea cannot be characterized as an
Alford plea, which occurs when a defendant maintains his innocence of the charged
offense, but pleads guilty in order to take a dvantage of a plea bargain because there is
sufficient evidence for a jury to find him guilty at trial. See State v. Goulette, 258 N.W.2d
758, 761 (Minn. 1977) (allowing Alford-type pleas to be accepted).
Because appellant’s guilty plea lacks an ad equate factual basis, his conviction is
reversed and the matter is remanded for further proceedings consistent with this opinion.
Reversed and remanded.