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This opinion will be unpublished and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
A17-0270

State of Minnesota,
Respondent,

vs.

Scot William Yard,
Appellant.

Filed January 2, 2018
Affirmed
Reilly, Judge

Anoka County District Court
File No. 02-CR-15-3973

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

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Worke, Presid ing Judge; Rodenberg, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
On appeal from his conviction of sec ond-degree criminal sexual conduct (CSC),
appellant Scot William Yard argues that, because the prosecutor’s statements at sentencing

2
violated a promise under the plea agreement to accept Yard’s claim he had amnesia due to
intoxication as part of his Norgaard plea,1 he is entitled to sp ecific performance and
resentencing. We affirm because Yard forfeited his challenge when he failed to object to
the prosecutor’s statements at sentencing. We also conclude that the state did not violate
the plea agreement at sentencing when the prosecutor challenged Yard’s assertion that he
could not remember the offense due to intoxication.
FACTS
In September 2016, Yard pleaded guilty to second-degree CSC by way of a
Norgaard plea. During the plea collo quy, and in his plea petitio n, Yard claimed that he
was “so drunk or so under the influence of drugs or medicine that [he] did not know what
[he] was doing at the time of the crime.” Yard entered his guilty plea with the
understanding that the state would dismiss th e first-degree CSC charge and that at
sentencing the state would argue for a pr esumptive sentence under the Minnesota
Sentencing Guidelines. After Yard’s counsel and the state created a proper foundation for
a Norgaard plea, the district court accepted the plea.
Yard moved for a downward durational de parture before sentencing arguing that
because he suffers from chemical dependency and mental illness, and was intoxicated
during the incident, he “lacked substantial capacity for judgment.” In November 2016, the
state opposed Yard’s motion at sentencing and asked the district court to sentence Yard to

1 A Norgaard plea allows a defendant to plead guilty “even though he or she claims a loss
of memory, through amnesia or intoxication, regarding the circumstances of the offense.”
State v. Ecker , 524 N.W.2d 712, 716- 17 (Minn. 1994) (citing State ex rel. Norgaard v.
Tahash, 261 Minn. 106, 110 N.W.2d 867 (1961)).

3
108 months in prison, the high end of the se ntencing guideline’s presumptive range. To
justify the request, the prosecutor highlighted the effect Yard’s behavior had on the minor
victim. The prosecutor also a ttacked Yard’s asse rtion that he could not remember the
events due to intoxication:
When Mr. Yard came in and testified before this Court
in his factual basis, he entered a Norgaard plea, which is
concerning to the State in the se nse that this wasn’t a mistake
and this was not a blackout, and all of Mr. Yard’s reactions to
being caught demonstrate beyond any doubt that he knew what
he was doing. He knew that he had done—he had sexually
abused [the victim], and he knew he had been caught. He
planned it. He waited until nigh ttime. He waited until [the
victim’s mother] was in bed. . . . He pretended to be coming
out of the bathroom when [the victim’s mother] got up to find
him. He was hiding under a bo at when law enforcement was
looking for him. He was texting his employer, giving a rational
reason why he might miss work the next day. That’s not
somebody who is blacked-out or drunk or doesn’t know what
they are doing. That’s somebody that’s planned something that
absolutely knows what they are doing.
. . . .
. . . Mr. Yard clearly did this and he did it on purpose
and he did it knowingly, and this wasn’t the product of some
drunken escapade and it shouldn’t be treated as such.

Yard did not object to the prosecutor’s statements and argued for a downward departure.
The district court denied Yard’s departure motion, explaining that it could not make
a causal link between Yard’s chemical dependency and mental illness on one hand, and a
finding that his behavior was less serious or culpable on the other hand. The district court
explained, though, that what it heard was suffi cient to sentence Yard to the bottom of the
sentencing guideline’s presumptive range.
Yard now appeals, arguing that the state violated the plea agreement.

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D E C I S I O N
I. Appellant Forfeited His Challenge
As a threshold matter, the state contends that Yard forfeited his challenge to the
prosecutor’s statements at th e sentencing hearing because he did not object before the
district court. We agree.
Generally, if a prosecutor violates a prom ise that induced a plea agreement, and the
defendant timely objects, the defendant is entitle d to a remedy, such as resentencing with
specific performance of the plea agreement or an opportunity to withdraw the plea. State
v. Ferraro, 403 N.W.2d 845, 848 (Minn. App. 1987). However, this court held in Ferraro
that when a defendant fails to object to a violation of the plea agreement at sentencing, and
is not prejudiced by any such violation, the defendant forfeits ch allenging the violation.
2
403 N.W.2d at 848. In State v. Anderson, we similarly found that a defendant’s failure at
a plea or sentencing hearing to object to th e imposition of restitution as violating a plea
agreement constituted forfeiture of the issue. 507 N.W.2d 245, 247 (Minn. App. 1993).
Furthermore, in State v. Witte , the supreme court suggested in dicta that an issue
involving the state’s violation of a plea bargain may be forfeited when the defendant does
not object. 308 Minn. 214, 215, 24 5 N.W.2d 438, 439 (1976). In Witte, the defendant
argued that he should be allowed to withdraw his plea because the state broke its promise

2 The plain-error rule does not apply to this case. The rule allows this court to review
unobjected-to errors that are “plain” and “eff ect substantial rights.” Minn. R. Crim. P.
31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). But a “plain error” is one that
affects a defendant’s right to have a fair trial and is inapplicable to cases involving a guilty
plea. State v. Thole, 614 N.W.2d 231, 236 (Minn. App. 2000).

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to make no recommendation as to his sentence. 302 Minn. at 214-15, 245 N.W.2d at 438.
The supreme court determined that it appeared “there may have been a [forfeiture], as
defendant did not object,” and that “it seems unjust for defendant and his counsel to sit idly
by without objection and, after finding out what the sentence is, to then cry foul.” Id. at
215, 245 N.W.2d at 439. Bu t, because of the sparse reco rd, the supreme court remanded
the case back to the district court. Id.
Despite this authority, Yard relies on James v. State, 699 N.W.2d 723 (Minn. 2005),
and Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989), to support his argument that “[a]
claim that the state violated a plea agreement may be raised for the first time on appeal.”
But those cases involve challenges to the validity of a guilty plea. In James the supreme
court determined the defendant’s plea wa s not “knowingly or understandably made”
because the state’s promise was unfulfillable. 699 N.W.2d at 726, 730. The supreme court
in Brown determined that “[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” regarding the requirement that a guilty plea must be accurate, voluntary, and
intelligent. Brown, 449 N.W.2d at 182. Because Yard is not making an argument that the
state made an unfulfillable promise or that “t he record made at the time of the plea was
entered is inadequate” to show that his plea was accurate, voluntary, and intelligent, James
and Brown are inapposite. Id. This case is more in line with Ferraro, Anderson, and Witte.
Here, when the prosecutor at sentencing challenged Yard’s contention that he could
not remember the offense due to intoxication Yard failed to object. Yard raises this issue
for the first time on appeal. Yard cannot sh ow he was prejudiced by any alleged plea-

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agreement violation because the district c ourt explained in detail its reasoning for not
departing, and that reasoning did not include the state’s allegation that Yard misrepresented
that he had amnesia due to intoxication. Accordingly, we conclu de Yard forfeited his
challenge because he failed to object at sentencing and no prejudice occurred.
II. The State Did Not Violate the Plea Agreement
Even if Yard did not forfeit his challenge, Yard’s argument that the state violated
the plea agreement fails because the record does not show that the state promised to accept
Yard’s claim of amnesia from intoxication.
In determining whether a plea agreement was violated, appellate courts examine
“what the parties to [the] plea bargain reas onably understood to be the terms of the
agreement.” State v. Brown , 606 N.W.2d 670, 674 (Minn. 2000) (alteration in original)
(quotation omitted). What the par ties agreed to is a question of fact to be resolved by a
district court. Id. Appellate courts review a district court’s factual determination of the
terms of the parties’ agreement for clear error. State v. Robledo-Kinney, 615 N.W.2d 25,
32 (Minn. 2000). “Issues involving the interpretation and enforcement of plea agreements,
however, are issues of law that we review de novo.” Brown, 606 N.W.2d at 674.
A valid guilty plea must be accurate, voluntary and
intelligent (i.e., knowingly and understandingly made). The
voluntariness requirement insure s that a guilty plea is not
entered because of any improper pressures or inducements.
When a plea rests in any signi ficant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be
fulfilled. Allowing the governme nt to breach a promise that
induced a guilty plea violates due process. On demonstration
that a plea agreement has been breached, the court may allow

7
withdrawal of the plea, order specific performance, or alter the
sentence if appropriate.

Id. (alterations omitted) (quotations and citations omitted).
Yard and the state disagree on the facts rega rding the terms of the plea agreement.
Yard asks this court to “conclude that the state agreed to accept the Norgaard plea as part
of the plea bargain.” The state asserts that its “only promise” was to dismiss the remaining
charge, and that Yard said at the plea hearing he understood that the state would be arguing
against a downward departure.
At the plea hearing, the district court recited its understanding of the plea agreement
to Yard: “As I understand it, the agreement is that you would be pleading guilty to Count
2. That is the second degree criminal sexua l conduct. Count 1 woul d be dismissed.” The
district court stated that it understood that the parties agre ed that defense counsel would
argue for a downward dispositional or durati onal departure, the state would probably
oppose the departure motion, and there were no agreements on the departure issue. The
court stated that the Minnesota Sentencing Guidelines presumptive range for a second-
degree CSC offense was 90 to 108 months. Finally, the court stated that it understood that
Yard would “be entering a guilty plea under what we know here as the Norgaard case, in
which you would say that, because of voluntar ily having consumed some chemicals;
alcohol in your case, that you don’t recall . . . all of the el ements of the crime. . . .” The
district court made no mention of any prom ise from the state agr eeing to accept at
sentencing Yard’s assertion that he had amnesia during the offense due to intoxication.

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After reviewing the plea petiti on and colloquy, we conclude that the district court
did not clearly err in its recitation of the plea agreement. Yard’s plea petition, which he
signed and went over with his attorney, specifically stated that in ex change for pleading
guilty to second-degree CSC, count two of the complaint, the state would “[d]ismiss count
one, [the] defense will seek [a] downward dis positional or in [the] alternative downward
durational departure, [and the] state will seek [a] guidelines sentence.” The plea transcript
shows that Yard entered his guilty plea with the understanding that the state would dismiss
the first-degree CSC charge and that at sentencing the state would argue for a presumptive
sentence under the Minnesota Se ntencing Guidelines. Yard also understood that the
sentencing guideline’s presumptive range for c ount two was 90 to 108 months in prison.
He stated on the record that he understood that no other promises had been made.
Yard’s contention that the prosecutor “agreed not to challenge the necessary
memory component of the Norgaard plea” and ratified this promise by acquiescing to
Yard’s testimony during the plea has little basis in the record. The state made no expressed
promise to not challenge the lack-of-memory component of the Norgaard plea. Yard also
suggests that the state impliedly promised that it would accep t his contention that he had
amnesia. Yard asserts that “all the parties knew that a Norgaard plea necessarily included
Yard’s statement that he did not remember the incident.” But, Yard cites no caselaw—nor
are we aware of any—that recognizes the existence and violation of an implied promise in
a plea bargain.
Yard relies on In re Ashman, arguing that in close cases, when the terms of a plea
agreement are ambiguous, the plea agreement must be construed in the defendant’s favor.

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608 N.W.2d at 858. Whether a plea agreement is ambiguous is a question of law. Id. In
Ashman, the supreme court determined no ambigui ty existed in the pl ea agreement when
the plea transcript showed clear and “unequivocally expressed” terms. Id. Here, the plea
agreement was not ambiguous because the only unequivocally expressed promise under
the agreement was that the state would dismiss the first-degree CSC charge.
Finally, Yard relies on one unpublished case from this court, asserting that this court
has “disapproved of ‘bait and switch’ tactics by the prosecution.” We reviewed that case
and disagree that the prosecutor here engaged in such a “bait-and-switch” ploy because the
prosecutor never promised to recognize appellant’s claim of amnesia at sentencing.
Because the state did not violate the pl ea agreement, Yard is not entitled to
resentencing or specific performance.
Affirmed.