Marcus Fultz, petitioner, Appellant,

This opinion will be unpublished and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
A17-0675

Marcus Fultz, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 9, 2018
Affirmed
Peterson, Judge

Anoka County District Court
File No. 02-CR-14-5496

Bradford Colbert, St. Paul, Minnesota (for appellant)

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

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

Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from the postconviction court’s denial of his petition for relief,
appellant argues that the state violated his constitutional due-process rights and the doctrine

2
of judicial estoppel by using inconsistent factual theories when prosecuting his case and
the case against his codefendant. We affirm.
FACTS
On August 23, 2014, both A.M.M. and Y.S. were stabbed in the chest while they
sat in A.M.M.’s car at a Fridley parking lot. They had been set up for a robbery by appellant
Marcus Fultz, Kevin Moore, and two women. The women went with the victims and a
third man from a bar to the third man’s apartment, where they “hung out” for about two
hours. Then the victims brought the women to the parking lot, where Fultz and Moore
planned to rob them. The evening went according to plan until Fultz and Moore began the
robbery. When A.M.M. drove into the parking lot, the women ran from his car. Y.S. was
sitting in the back seat, and he and A.M.M. were stabbed after Fultz and Moore approached
the car with weapons and told them that they were being robbed.
Fultz was charged by amended complaint with six crimes: attempted first - and
second-degree murder, aiding and abetting attempted first- and second -degree murder,
first-degree assault, and aiding and abetting first -degree assault. Under a plea agreement
with the state, Fultz agreed to plead guilty to attempted first-degree murder and aiding and
abetting attempted first-degree murder in exchange for dismissal of the other charges and
imposition of consecutive sentences totaling 283 months.
When providing the factual basis for his ple a at his plea hearing, Fultz admitted to
stabbing both of the victims and testified that he stabbed the second victim because he
“[t]hought he had a weapon.” Upon hearing these statements, the state abruptly withdrew
from th e plea agreement because Fultz’s testimony was inconsistent with his charged

3
conduct and could provide a factual basis for a claim of self-defense. The prosecutor stated,
“I believe that the evidence does not support what Mr. Fultz is indicating . . . .” The district
court did not accept the plea.
Fultz signed a second plea petition , in which he again agreed to plead guilty to
attempted first -degree murder and aiding and abetting attempted first -degree murder in
exchange for dismissal of other charges and imposition of executed consecutive sentences
that totaled 306 to 314 months. When providing the factual basis for this plea at his second
plea hearing, Fultz testified that he stabbed the driver, A.M.M., and Moore stabbed the
passenger, Y.S. The district court accepte d the plea, convicted Fultz, and sentenced him
to 314.5 months.
A separate criminal complaint charged Moore with the same crimes that had been
charged against Fultz. At the beginning of Moore’s plea hearing, the state amended the
complaint to change the first count from attempted first -degree murder to aiding and
abetting attempted first-degree murder. Moore then pleaded guilty to two counts of aiding
and abetting attempted first-degree murder in exchange for dismissal of the other charges
and imposition of concurrent sentences of 274 months each. When providing the factual
basis for his pleas, Moore testified that Fultz stabbed both of the victims.
Following his conviction s, Fultz sought review in this court, but his appeal was
voluntarily dismissed. Fultz then petitioned for postconviction relief, arguing that the state
violated his due-process rights by presenting two inconsistent factual scenarios when
prosecuting his and Moore’s cases , and that the state should be judicially estopped fr om
doing so. Fultz asked the postconviction court to “reinstate [his] original plea agreement

4
and resentence him to 283 months in prison,” consistent with his first plea agreement.
Following a hearing, the postconviction court denied the petition. This appeal follows.
D E C I S I O N
An appellate court reviews the denial of a petition for postconviction relief for abuse
of discretion. Miles v. State, 840 N.W.2d 195, 200 (Minn. 2013). A postconviction court’s
decision constitutes an abuse of discreti on when the “decision is based on an erroneous
view of the law.” Id. (quotation omitted). This court gives de novo review to a
postconviction court’s legal conclusions , Leake v. State , 737 N.W.2d 531, 535 (Minn.
2007), and reviews its findings of fact fo r clear error. Doppler v. State, 771 N.W.2d 867,
875 (Minn. 2009).
As an initial matter, we note that although Fultz seeks reinstatement of his first
guilty plea, the state withdrew from that plea , and the district court rejected it after Fultz
failed to provide a sufficient factual basis to support it. To be valid, a guilty plea must be
accurate, voluntary, and intelligent. State v. Ecker , 524 N.W.2d 712, 716 (Minn. 1994) .
And “[a] proper factua l basis must be established for a guilty plea to be accurate.” Id.
Because Fultz did not provide a proper factual basis for his first guilty plea, it is not valid
and cannot be reinstated.
Fultz argues that the state’s reliance on inconsistent facts when prosecuting his and
Moore’s cases violates the doctrine of judicial estoppel and his constitutional due-process
rights. Judicial estoppel “is intended to prevent a party from assuming inconsistent or
contradictory positions during the course of a lawsui t,” State v. Pendleton , 706 N.W.2d
500, 507 (Minn. 2005), in order “to protect the integrity of the judicial process.” State v.

5
Profit, 591 N.W.2d 451, 462 (Minn. 1999). “[T]wo or more defendants may play varied
roles in the commission of a crime and pro secutors are not required to present the same
evidence and theories in the trials of different defendants,” but , under the doctrine of
judicial estoppel, “the state may not, at the core of its case, rely upon factually inconsistent
theories and irreconcilable evidence to obtain . . . convictions in separate trials for the same
[crime].” Pendleton, 706 N.W.2d at 507.
We decline to consider whether the doctrine of judicial estoppel should apply in this
case because it has not been recognized in Minnesota. On three occasions, the Minnesota
Supreme Court has refused to adopt the doctrine. Pendleton, 706 N.W.2d at 507 (stating
that “[t]he doctrine of judicial estoppel has not been expressly recognized by this court ,”
and “we decline to adopt the doctrine at this time”); Illinois Farmers Ins. Co. v. Glass Serv.
Co., 683 N.W.2d 792, 80 1 (Minn. 2004) ( stating that “we neither adopt nor reject the
doctrine of judicial estoppel”); Profit, 591 N.W.2d at 462 (“We have not expressly
recognized the doctrine of judicial estoppel and decline to do so here.”). We are an error-
correcting court, and it is not our function to adopt a new legal theory. See Sefkow v.
Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (“The scope of review of an appellate court is
narrowly defined. The function of the court of appeals is limited to identifying errors and
then correcting them.”).
Fultz also appears to make a due-process argument that he claims is “intertwined”
with his judicial-estoppel argument: he asserts that the state improperly prosecuted his and
Moore’s cases on inconsistent facts. Under the Minnesota and United States Constitutions,
due process of law requires that a defendant receive a fair trial. U.S. Const. amends. V,

6
XIV § 1; Minn. Const. art 1, § 7. These constitutional guarantees “do[] not require a perfect
trial, but rather one that is fair and does not prejudice the substantial rights of the accused.”
State v. Marchbanks, 632 N.W.2d 725, 729 (Minn. App. 2001). “Prosecutors have a dut y
not to win a case by any means necessary but to see that justice is done ,” and “[j]ustice is
done only when the accused, regardless of guilt or innocence, receives a fair trial.” State
v. McNeil, 658 N.W.2d 228, 236 (Minn. App. 2003).1
“In postconviction proceedings, the defendant has the burden of establishing . . .
that he was deprived of fair treatment amounting to a violation of fundamental rights of
due process.” Cable v. State, 284 Minn. 89, 93 -94, 169 N.W.2d 391, 394 (1969). Fultz
did not meet that burden. Fultz and Moore were originally charged with the same crimes
arising out of the same factual scenario. Fultz pleaded guilty to attempted first -degree
murder and aiding and abetting first -degree murder; Moore then pleaded guilty to two
counts of aiding and abetting attempted first-degree murder. Only Fultz pleaded guilty to
the offense as principal in one of the stabbings —the other three offenses to which they
pleaded guilty were aiding and abetting offenses that did not depend upon either Fultz or
Moore as the principal actor. Thus, n o action taken by the state in either case was based
on inconsistencies in the state’s version of the facts.

1 Normally, by pleading guilty, a defendant waives all nonjurisdictional defects, including
claimed constitutional violations. State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980).
Fultz argues that this rule should not apply to him because the factual inconsistency that
supports his constitutional claim did not exist until after Moore entered his plea . At the
time of Fultz’s plea, he could not have known of the constitutional claim.

7
It was only during Moore’s testimony at his plea hearing, when Moore offered his
version of the facts to support his plea, that any factual discrepancy was created. Contrary
to Fultz’s earlier admission that he stabbed A.M.M. and Moore stabbed Y.S., Moore
testified that Fultz stabbed both victims. Fultz has offered no evidence to show that t his
factual inconsistency was instigated by the state . While the state amended Moore’s
complaint at the beginning of his plea hearing to c hange the first count from attempted
first-degree murder to aiding and abetting first-degree murder, this action was not unfair to
Fultz and may have merely reflected the state’s recognition that it could not prove which
of the codefendants stabbed Y.S. , although it could prove that both codefendants were
culpable for aiding and abetting Y.S.’s stabbing.
Fultz failed to meet his burden of proof to establish a violation of his due -process
rights. T he postconviction court did not abuse its discretion in dismissing Fultz’s
postconviction petition.
Affirmed.