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This opinion will be unpublished and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
A17-1205

State of Minnesota,
Respondent,

vs.

Brian James Olson,
Appellant.

Filed March 19, 2018
Affirmed
Bjorkman, Judge

Olmsted County District Court
File No. 55-CR-14-5215

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

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Duane A. Kennedy, Kennedy Law Office, Rochester, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant seeks reversal of his conviction for attempted solicitation of a minor to
engage in prostitution, arguing that the state violated his constitutional protection against

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double jeopardy by subjecting him to a second prosecution on the same facts after t he
district court granted his motion to withdraw his guilty plea to a similar charge. We affirm.
FACTS
On May 22, 2014, appellant Brian James Olson was arrested in Rochester during a
sting operation. Police had placed an advertisement , including photos of scantily clad
young girls, on a web-based adult-services site. Olson texted the listed phone number and
arranged to pay $200 to hire a 15-year-old female for sex . Olson was apprehended after
he arrived at the designated location at the prescribed time with $200 in his rear pocket.
Olson waived his Miranda rights and admitted his conduct to police . The state charged
him with hiring or agreeing to hire “an individual under the age of 16 years but at least 13
years to engage in sexual penetration or sexual contact,” in violation of Minn. Stat.
§ 609.324, subd. 1(b)(2) (2012).
Olson agreed to plead guilty to “hir[ing] or offer[ing] or agree[ing] to hire an
individual under the age of 18 years but at least 16 years to engage in sexual penetration or
sexual contact.” Minn. Stat. § 609.324, subd. 1(c)(2) (2012). 1 During his plea hearing,
Olson admitted to soliciting a minor with the intention of having sex. At the end of the
hearing, the district court accepted Olson’s guilty plea, finding that it was voluntary,
accurate, and intelligent, and supported by an adequate factual basis. Olson was ordered

1 The original charge and the offense to which he pleaded guilty are both felonies, but the
punishments are more severe for an offense involving a younger victim. Compare Minn.
Stat. § 609.324, subd. 1(b)(2) (setting forth punishment of “imprisonment for not more than
ten years or . . . payment of a fine of not more than $20,000, or both”) , with id., subd.
1(c)(2) (setting forth punishment of “imprisonment for not more than five years or . . .
payment of a fine of not more than $10,000, or both”).

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to cooperate with a presentence investigation and return for sentencing in two months. The
district court did not adjudicate Olson’s guilt.
Before sentencing, Olson moved to withdraw his guilty plea, arguing that it was not
intelligently or voluntarily made because he was unaware of many aspects of his trial rights
and did not understand the consequences of pleading guilty. At the motion hearing , the
district court rejected Olson’s arguments, noting that Olson’s assertions were contradicted
by statements he made in his plea petition and at the plea hearing, and that there was no
evidence that Olson had been coerced to plead guilty. But the court granted Olson’s motion
on the alternative ground that the plea was inaccurate due to conflicting references to the
minor’s age Olson made during his plea colloquy. The criminal complaint charged Olson
with soliciting sex with a minor “under the age of 16 years but at least 13 years.” But the
plea petition referenced a minor “under the age of 18 years but at least 16 years.” Olson’s
plea colloquy reflects confusion; he admitted to both soliciting a minor whom he believed
was 15 years old and a minor who was “over the age of 16.” Due to this discrepancy, the
district court concluded that Olson had not provided a sufficient factual basis to support his
guilty plea. Accordingly, the court vacated Olson’s guilty plea and set the matter for trial.
Olson moved to dismiss the complaint on double-jeopardy grounds. He argued that
the state could not prosecute him because the district court’s unconditional acceptance of
his guilty plea resulted in a conviction. The district court denied the motion, reasoning that
“[w]ithout an adjudication of guilt on the record, the [district] [c]ourt did not ‘record’ the
guilty plea,” and jeopardy “did not attach.”

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During the pendency of Olson’s motion to dismiss, the state amended the complaint
to assert a charge of attempted s olicitation of a minor for prostitution. Minn. Stat.
§§ 609.17, subd. 1, .324, subd. 1(b)(2) (2012). Olson was convicted of this offense after a
jury trial. Olson appeals.
D E C I S I O N
The federal and state constitutions prohibit the prosecution of a criminal defendant
for the same offense following an acquittal or a conviction. U.S. Const. amend. V; Minn.
Const. art. I, § 7; see Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977). “The
Double Jeopardy Clause protects against multiple punishments for the same offense and
against a second prosecution after an acquittal or conviction.” State v. Jeffries, 806 N.W.2d
56, 60-61 (Minn. 2011) (footnote omitted). We review the application of double jeopardy
de novo. State v. Leroy, 604 N.W.2d 75, 77 (Minn. 1999).
Minnesota law defines a conviction as “any of the following accepted and recorded
by the court: (1) a plea of guilty; or (2) a verdict of guilty by a jury or a finding of guilty
by the court.” Minn. Stat. § 609.02, subd. 5 (2016) (emphasis added) . A defendant is
convicted under the first prong when a “district court accepts and records a guilty plea.”
Jeffries, 806 N.W.2d at 61. “[I]n the context of a plea agreement, . . . jeopardy attaches, at
the latest, following a conviction.” State v. Martinez-Mendoza, 804 N.W.2d 1, 6 (Minn.
2011); see also State v. Miller, 849 N.W.2d 94, 97 (Minn. App. 2014) (“Jeopardy attaches
after the district court accepts a guilty plea and a djudicates the defendant guilty.”). Olson
contends that jeopardy attached at the time he entered his guilty plea.

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We first consider whether the district court accepted Olson’s guilty plea. Once a
defendant has tendered a valid guilty plea, the district court “must accept or reject the plea
of guilty on the terms of the plea agreement” or “postpone its acceptance or rejection until
it has received the results of a presentence investigation.” Minn. R. Crim. P. 15.04,
subd. 3(1). In determining which option a district court selected, we consider the language
used by the district court at the plea hearing. In Jeffries, the supreme court concluded that
the district court’s statements of “I’ll accept your plea of guilty” and “you are convicted of
that” reflect unconditional acceptance of the guilty plea. 806 N.W.2d at 62. The court
cautioned, however, that the case was limited to its facts and there are not “magic words
that will always result in a conviction for double jeopardy purposes.” Id. at 63. The Jeffries
court contrasted its holding with State v. Thompson, 754 N.W.2d 352, 356 (Minn. 2008),
which it described as a “useful comparison.” 806 N.W.2d at 62. In Thompson, the supreme
court held that the district court’s s tatements that it “would . . . adjudicate” the defendant
guilty of the charge and would “reserve a decision . . . pending the results of the
[presentence investigation]” did not demonstrate acceptance of the defendant’s tendered
guilty plea. 754 N.W.2d at 356.
The district court stated at Olson’s plea hearing that it “accept [ed]” Olson’s guilty
plea. And the court did so without reservation. The district court then ordered Olson to
“cooperate with the completion of a presentence investigation report” and to return for
sentencing on a later date. As in Jeffries, the record does not reflect “that the district court
intended to postpone its decision to accept the plea or to accept the plea on terms other than

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those agreed to by the parties.” 806 N.W.2d at 62. Rather, the district court accepted
Olson’s tendered guilty plea at the plea hearing.
We next address whether the plea acceptance was recorded —the second
requirement for a conviction. In Martinez-Mendoza, the supreme court stated that a guilty
plea is recorded either “when the clerk enters the judgment of conviction,” or when the
district court accepts the guilty plea and “adjudicate[s] the defendant guilty on the record.”
804 N.W.2d at 6. The supreme court subsequently observed that “[b]ecause we have held
that a guilty plea is ‘recorded’ when a court adjudicates a defendant guilty on the record,
that holding is part of the ‘conviction’ definition [of section 609.02, subd ivision 5] as
though written therein.” State v. Nodes, 863 N.W.2d 77, 81 (Minn. 2015).
The language used by the district court in accepting Olson’s plea did not include an
adjudication of guilt . But Olson contends that the court’s acts of ordering a presentence
investigation and directing him to return for sentencing constitute recording of his guilty
plea. This argument is unavailing. As noted above, caselaw establishes a bright-line rule.
This is important because all parties to a criminal proceeding must know when a conviction
comes into existence—when the defendant’s guilty plea is accepted and recorded . Here,
the district court did not adjudicate Olson guilty on the record during the guilty plea
hearing. And the clerk did not enter a judgment of conviction. Under these circumstances,
we conclude that jeopardy did not attach when the district court accepted Olson’s guilty
plea because Olson was not convicted of a crime.
Finally, even if Olson had been convicted when he entered his guilty plea, we are
not persuaded that the Double Jeopardy Clause bars prosecution. After all, Olson, not the

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state, sought the plea withdrawal. Before entering a guilty plea, defendants are specifically
advised that if the district court does not accept the ir plea, they have “an absolute right to
withdraw the guilty plea and have a trial.” Minn. R. Crim. P. 15.01, subd. 1.6.n (emphasis
added). When a district court grants a defendant’s plea-withdrawal motion, the court
“remove[s] the barrier of his plea and allow[s] him a tr ial.” Shorter v. State, 511 N.W.2d
743, 747 (Minn. 1994). Accordingly, t he typical procedure following a defendant’s
successful plea-withdrawal motion is for the case to “proceed to trial.” Id.; see State v.
Benson, 330 N.W.2d 879, 880 (Minn. 1983) (stating that defendant’s remedy for mistaken
guilty plea is to withdraw the guilty plea and “stand trial on the original charges”); State v.
Chapman, 362 N.W.2d 401, 404 (Minn. App. 1985) (upon reversal for inadequate factual
basis to support a guilty plea, r emanding to allow the defendant the “opportunity to
withdraw her plea and go to trial, or to negotiate another plea agreement”), review denied
(Minn. May 1, 1985). Because Olson moved to withdraw his guilty plea, the double-
jeopardy concerns are not implicated.
Affirmed.