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This opinion will be unpublished and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
A17-1836

State of Minnesota,
Respondent,

vs.

Kevin Mathew Erickson,
Appellant.

Filed August 13, 2018
Affirmed
Smith, Tracy M., Judge

Scott County District Court
File No. 70-CR-16-21371

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistan t County Attorney,
Shakopee, Minnesota (for respondent)

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

Considered and decided by Bratvold, Pr esiding Judge; Connolly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Kevin Mathew Erickson challenges the district court’s denial of his oral
presentencing plea-withdrawal requests, arguing that the district court abused its discretion

2
by requiring him to file a written motion and not considering whether it was fair and just
to allow plea withdrawal. We affirm.
FACTS
On November 30, 2016, the state charged Erickson with one count of fifth-degree
controlled-substance crime in violation of Minn. Stat. § 152.025, subd. 2(1) (2016) and one
count of misdemeanor domestic assault in violation of Minn. Stat. § 609.2242, subd. 1(2)
(2016). The complaint alleged that, one day earlier, Erickson had possessed 2.29 grams of
methamphetamine found in a hotel room, and that he had assaulted A.J.S., with whom he
had had a relationship.
On May 1, 2017, the district court held a plea hearing and Erickson pleaded guilty
to the fifth-degree controlled-substance crime in exchange for dismissal of the
misdemeanor domestic-assault charge. After the plea petition was received and the factual
basis was established, the district court stated that “[it will] defer acceptance of the plea
here and dismissal of the remaining charge until the time of sentencing.”
On July 28, the parties appeared for sentencing, but Erickson requested a
continuance so that he could hire private counsel “to represent him in a plea withdrawal.”
The district court continued the sentencing he aring “in order to give [Erickson’s private
counsel] sufficient time to file the motion that would be re quired if he was requesting
withdrawal of a plea.” At Erickson’s reques t, the district court discharged the public
defender.
One month later, on August 21, the partie s returned for sentencing. Erickson
appeared without counsel. He informed the district court that he believed that he had

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already withdrawn his guilty plea at the July 28 hearing. The di strict court stated that it
did not see any motion to withdraw the plea and that the plea had not been withdrawn.
Erickson acknowledged that he had not yet reta ined counsel, stated that it had been his
intention to withdraw the plea following the July 28 hearing, and said, “[I]f I have to enter
a motion, I do that verbally today.” The di strict court stated that it would not allow
Erickson to orally move to withdraw the plea at the sentencing hearing, explaining that, for
a plea-withdrawal request, Erickson had to “bring a motion, and then the [c]ourt has to look
at the issues [he has] rais ed in the motion, compare it with the law, and make a
determination about whether or not it was knowing and voluntary.” The district court
denied Erickson’s requests for “24 hours” and for a continuance. The district court then
sentenced Erickson to 21 months in prison.
Erickson appeals.
D E C I S I O N
Erickson argues that the district court abused its discretion by denying his oral
presentencing requests to withdraw the guilty plea without considering whether it was fair
and just to allow plea withdrawal.
“A defendant has no absolute right to withdraw a guilty plea after entering it.” State
v. Raleigh , 778 N.W.2d 90, 93 (Minn. 2010). “Withdrawal is permitted in two
circumstances.” Id. First, a district court must allow a defendant to withdraw a guilty plea
“[a]t any time” if “withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim.
P. 15.05, subd. 1. Second, a district court may allow a defendant to “withdraw a plea at
any time before sentence if it is fair and just to do so.” Id., subd. 2.

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When deciding whether to grant a motion to withdraw a guilty plea under the fair-
and-just standard, a district court “must give due consideration to the reasons advanced by
the defendant in support of the motion and any prejudice the granting of the motion would
cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.” Id.
“A defendant bears the burden of advanc ing reasons to support withdrawal.” Raleigh,
778 N.W.2d at 97. The state bears the burden of showing any prejudice that would result
from such withdrawal. Id. “The ultimate decision is left to the sound discretion of the
[district] court, and it will be reversed only in the rare case in which the appellate court can
fairly conclude that the [distric t] court abused its discretion.” Kim v. State, 434 N.W.2d
263, 266 (Minn. 1989).
We have discretion to review the record to determine whether an appellant offered
sufficient reasons to support a motion to withdraw the guilty plea. See State v. Lopez, 794
N.W.2d 379, 383 (Minn. App. 2011) (review ing record “to determine whether the facts
and circumstances satisfy the fair-and-just sta ndard). Although the fair-and-just standard
“is less demanding” than the manifest-injustice standard, “it does not allow a defendant to
withdraw a guilty plea for simply any reason.” State v. Theis, 742 N.W.2d 643, 646 (Minn.
2007) (quotation omitted). “If a guilty plea can be withdrawn for any reason or without
good reason at any time before sentence is imposed, then the proce ss of accepting guilty
pleas would simply be a means of continuing the trial to some indefinite date in the future
when the defendant might see fit to come in and make a motion to withdraw his plea.”
Kim, 434 N.W.2d at 266.

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Erickson advances three reasons to supp ort his argument that the district court
abused its discretion. First, Erickson argues that the district court never accepted his guilty
plea or adjudicated him guilty. The state agrees, asserting that the case should be remanded
to the district court so that the court can accept Erickson’s guilty plea. Although the parties
agree that the district court erred, this court must still conduct an independent inquiry. See
State v. Hannuksela , 452 N.W.2d 668, 673 n.7 (Minn. 1990) (noting that it is the
responsibility of appellate courts to decide cases in accordance with the law, regardless of
whether the parties choose to contest an issue ). After carefully reviewing the record, we
are not persuaded that the district court failed to accept Erickson’s plea.
A conviction is defined as “(1) a plea of guilty; or (2) a verdic t of guilty by a jury
or a finding of guilty by the court” that is “accepted and recorded by the court.” Minn.
Stat. § 609.02, subd. 5 (2016). Therefore, when a defendant ente rs a guilty plea, “a
conviction requires that a dist rict court both accept and record the guilty plea.” State v.
Thompson, 754 N.W.2d 352, 355 (Min n. 2008) (citing Minn. St at. § 609.02, subd. 5)
(quotation marks omitted).
A district court records a guilty plea either by “accepting the guilty plea and
adjudicating the defendant guilty on the record,” State v. Martinez-Mendoza, 804 N.W.2d
1, 6 (Minn. 2011), or by entry of formal judgment of conviction, State v. Jeffries , 806
N.W.2d 56, 63 (Minn. 2011). A district court accepts a guilty plea when it uses “clear and
unambiguous language of acceptance of the plea,” but there are not “magic words” such as
“convicted” or “I accept your plea” that “will always result in a conviction.” Id. “A
conviction appearing in the official judgment of conviction or in a conviction order entered

6
by the court has been formally adjudicated.” State v. Hoelzel, 639 N.W.2d 605, 609 (Minn.
2002) (quotation omitted).
Here, the record shows that the district court implicitly accepted Erickson’s guilty
plea even though it did not use explicit words of acceptance. Taking the record as a whole
and considering the district court’s statements in context, the district court conveyed that it
intended to accept Erickson’s guilty plea at the sentencing hearing and it implicitly
accepted Erickson’s guilty plea at the sentencing hearing when it repeatedly stated that the
purpose of the hearing was to sentence Erickson. In addition, the district court issued a
sentencing order and warrant of commitment th at entered the conviction of fifth-degree
controlled-substance crime and sentenced Er ickson to 21 months’ im prisonment. Based
on these facts, we conclude that the distri ct court implicitly accepted Erickson’s plea and
properly entered his conviction.1
In any event, reversing the district court and remanding the case so that the district
court can expressly accept Erickson’s guilty plea would not give Erickson what he wants—
withdrawal of his guilty plea. For these reasons, Erickson’s first argument fails.

1 Although no published case in Minnesota addresses implicit acceptance of a guilty plea,
we note that this court in State ex rel. Peltier v. Hvass held that the district court “implicitly
accepted” the defendant’s guilty plea by adjudicating him guilty and that it did not need to
expressly state that it had done so. No. A03-0008, 2003 WL 22534260, at *3 (Minn. App.
Nov. 10, 2003). “Unpublished opinions are not precedential, but they may have persuasive
value.” State v. Ellis-Strong, 899 N.W.2d 531, 537 (Minn. App. 2017) (citing Minn. Stat.
§ 480A.08, subd. 3 (2016)) (other citation omitted). Cf. United States v. Arafat, 789 F.3d
839, 844 (8th Cir. 2015) (concluding that, even though the district court had not explicitly
accepted the defendant’s plea under the Federal Rules of Crimin al Procedure, “[t]aken as
a whole and considered in context, the district court’s statements reflect that it intended to
accept, and that it did implicitly accept [the defendant’s] guilty plea”).

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Second, Erickson argues that the district court abused its discretion by not allowing
him to make an oral motion to withdraw his guilty plea. Minn. R. Crim. P. 15.05 does not
state whether a motion to withdraw a guilty plea must be made in writing. Minn. R. Crim.
P. 32 states that “[a] motion other than one made during a trial or hearing must be in writing,
unless the court or these rules permit it to be made orally.” Erickson argues that, because
he sought to withdraw his plea during a heari ng (specifically, his sentencing hearing), the
rules did not require a written motion and the district court erred as a matter of law by not
considering his oral motion.
We find this argument unpersuasive. While Minn. R. Crim. P. 32 requires that a
motion made outside a trial or hearing be in writing, it does not mandate that the district
court entertain any oral motion made during a ny hearing. Here, th e district court had
granted Erickson’s request for a continuan ce and had made clear that it granted the
continuance “in order to give [Erickson’s private counsel] sufficient time to file the motion
that would be required if he was requesting withdrawal of a plea.” Although a month had
passed and sentencing was scheduled, Erickson had neither retained counsel nor filed any
motion. The district court di d not abuse its discretion in no t ruling on Erickson’s oral
motion.
We need not decide whethe r a motion to withdraw a gu ilty plea made during the
sentencing hearing must be in writing because Erickson’s or al requests at the sentencing
hearing failed to meet the requ irements for a plea-withdrawal motion. Minn. R. Crim. P.
32 (“The motion must state the grounds on which it is made and must set forth the relief or
order sought.”); See State v. Mudgett, 748 N.W.2d 921, 922-23 (Minn. App. 2008) (“We

8
need not decide whether a motion must be wr itten because [the defendant’s] contingent
request, written or not, did not require treatment as a pre-sentencing plea-withdrawal
motion.”). At the sentencing hearing, Eric kson did not articulat e the grounds for his
requests. Instead, Erickson merely repeated his desire to withdraw his guilty plea and made
some general statements concerning the public defender’s performance and why he pleaded
guilty. Because a defendant bears the burden of advancing reasons to support withdrawal,
Raleigh, 778 N.W.2d at 97, and because pro se litigants are generally held to the same
standards as attorneys and must comp ly with all rules of procedure, Francis v. State, 781
N.W.2d 892, 896 (Minn. 2010), these general statements fail to meet the requirements for
a plea-withdrawal motion. See Mudgett, 748 N.W.2d at 923.
Finally, Erickson argues that the district court abused its discretion because the court
suggested it would have applied the manifest-i njustice standard, rather than the fair-and-
just standard, had Erickson submitted a written motion. We disagree that the district court
abused its discretion. It is tr ue that the district court’s st atement that it would have made
“a determination about whether or not [the plea] was knowing and voluntary” seems to
indicate that the district court would have applied the manifest-injustice standard. See
Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997) (“Manifest injustice occurs if a guilty
plea is not accurate, voluntary, and intelligent, and thus the plea may be withdrawn.”).
However, because Erickson’s requests did not amount to a motion and the district court
was not actually considering one, it does not matter whether the district court’s brief
description of the law was correct.

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We conclude that the district court did not abuse its discretion in denying Erickson’s
oral requests to withdraw his guilty plea at the sentencing hearing.
Affirmed.