State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0221

State of Minnesota,
Respondent,

vs.

Erik Wilford Domier,
Appellant.

Filed January 7, 2019
Affirmed
Hooten, Judge

Otter Tail County District Court
File No. 56-CR-16-2070

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

Michelle M. Eldien, Otter Tail County Attorney, Benjamin G. A. Olson, Assistant County
Attorneys, Fergus Falls, Minnesota (for respondent)

Christopher J. Cadem, Carolyn A. Cadem, Cadem Law Group, PLLC, Fergus Falls,
Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and
Klaphake, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant challenges his conviction of felony domestic assault, arguing that some
of his prior out -of-state convictions should not have been counted as qualified domestic
violence-related offenses. He also argues that the district court abused its discretion by not
allowing him to withdraw his guilty plea. We affirm.
FACTS
In early July of 2016, appellant was driving in his truck with his girlfriend, A.M.C.,
and their child. A.M.C. decided that she no longer wanted to be in the truck with appellant,
and a struggle ensued. Appellant eventually pulled over; A.M.C. got out of the truck and
started to walk or run away from the vehicle. Appellant “chased after her to brin g her
back,” and A.M.C. fell. Appellant grabbed A.M.C. by her hair, pulling her up and scraping
her legs on the gravel road.
After he was arrested a few days later, appellant was charged with felony domestic
assault in violation of Minn. Stat. § 609.2242, subd. 4 (2016). Subdivision four enhances
a misdemeanor domestic assault under subdivision one into a felony when a defendant has
two or more previous qualified domestic violence -related offense (QDVO) convictions.
Minn. Stat. § 609.2242, subds. 1, 4 (2016). Early the next March, appellant pleaded guilty
to this charge. Before sentencing but a fter discovering that the two prior North Dakota
convictions that enhanced the current domestic assault to a felony likely arose from the
same behavioral incident, a ppellant filed a motion asking the district court, alternatively,
to reduce his criminal history score, permit him to withdraw his guilty plea, or dismiss the

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complaint. The district court granted the motion to reduce appellant’s criminal history
score, denied the other two motions, and stayed the sentence pending appeal. This appeal
follows.
D E C I S I O N
I. Minn. Stat. § 609.02, subd. 16 does not contain an implicit requirement
that “qualified domestic violence -related offenses” from other states
must each arise out of a separate behavioral incident, such that appellant
could not have legally been convicted of felony domestic assault.

Whether a particular conviction constitutes a QDVO presents a question of statutory
interpretation. State v. Moen , 752 N.W.2d 532, 534 (Minn. App. 2008). “Statutory
interpretation presents a question of law, which we review de novo.” State v. Riggs, 865
N.W.2d 679, 682 (Minn. 2015). Unless the statute is ambiguous, we apply the plain
meaning of the statutory language. Moen, 752 N.W.2d at 534. “When the words of a law
in their application to an existing situation are clear and free fro m all ambiguity, the letter
of the law shall not be disregarded under the pretext of pursuing the spirit.” Minn. Stat.
§ 645.16 (2018). Ambiguity exists if the statute “is subject to more than one reasonable
interpretation.” Am. Family Ins. Gr p. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000)
(quotation omitted).
Similar
Appellant’s main claim is that his two North Dakota convictions should have been
counted as a single conviction because they arose from the same behavioral incident , and
therefore he did not have two QDVOs that would enhance the assault of his girlfriend to a
felony. His argument is premised on the fact that in Minnesota when multiple convictions

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arise from the same behavioral incident a defendant can only be senten ced for the most
serious offense. Minn. Stat. § 609.035, subd. 1 (2018). North Dakota law contains no such
prohibition. See, e.g., State v. Desjarlais, 744 N.W.2d 529, 531 (N.D. 2008). Appellant
contends that because the statute defining a QDVO contains an implicit requirement that
an out-of-state conviction must be “similar” to qualifying Minnesota convictions, such out-
of-state convictions must necessarily arise from separate behavioral incidents as well.
To be clear, appellant was convict ed under Min n. Stat. § 609.2242 (2016).
Subdivision one describes a simple assault against a family member, a misdemeanor, an
element that is not contested here. Id., subd. 1. Subdivision four enhances the penalty for
this offence when a defendant has two or more “qualified domestic violence-related offense
convictions.” Id., subd. 4. Minn. Stat. § 609.02, subd. 16, defines “ qualified domestic
violence-related offense” by reference to specific Minnesota statutes, “and similar laws of
other states.” Id. Neither Minn. Stat. § 609.2242 nor Minn. Stat. § 609.02, subd. 16, directs
the district court to inquire into the factual basis for the previous convictions. Nor does
Minn. Stat. § 609.2242, subd. 4 , contain a requirement that prior convictions used to
enhance a current offense arise from separate behavioral incidents.
Appellant argues that the word “similar” in the statute defining QDVO “indicates
the legislature’s intent to treat out -of-state convictions in the same manner as offenses
committed in Minnesota, ” and therefore that out -of-state convictions can only be treated
as QDVOs if they arose from separate behavioral incidents. But during the pendency of
this appeal, this court released its opinion in State v. Defatte ; that case is dispositive of
appellant’s claim. ___N.W.2d___ (Minn. App. Nov. 19, 2018).

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In Defatte, this court held that multiple Minnesota convictions arising from the same
behavioral incident are considered distinct QDVOs, even when appellant was only actually
sentenced for one of these conv ictions. 2018 WL 6034972, at *3 –5. Even assuming
appellant’s argument is correct, that the word “similar” requires Minnesota courts to treat
out-of-state-convictions as though they occurred in Minnesota, under Defatte each separate
conviction would still count as a QDVO under Minnesota law.
Further, the plain language of the statute also confirms that there is no such
requirement. None of the relevant statutes contains any requirement in their plain language
that courts consider convictions from other jurisdictions as though they had been
committed in Minnesota. See Minn. Stat. §§ 609.02, .2242. And appellant has provided
no authority or analysis that would expand the definition of “similar” beyond its commo n
meaning to include his proposed additional requirement. See Minn. Stat. § 645.08 (1)
(2018) (“[W]ords and phrases are construed according to rules of grammar and according
to their common and approved usage.”).1
As part of this argument, appellant asserts that if the offenses occurred in Minnesota,
under Minn. Stat. § 609.035 , subd. 1, appellant would only have been sentenced for one
offense. While appellant is correct on this point, it is irrelevant. Under Defatte, while
appellant would have only been sentenced for one of the offenses if they had occurred in
Minnesota, both of them would still have been considered QDVOs for the purpose of

1 Furthermore, this court has already held that section 609.02, subdivision 16, defining the
term “qualified domestic violence-related offense,” is not ambiguous. Moen, 752 N.W.2d
at 535.

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enhancing his current charge if the court entered a judgment of conviction . 2018 WL
6034972, at *3–4.2
We therefore hold that appellant has failed to establish that he is entitled to relief
under both State v. Defatte, 2018 WL 6034972, at *3–4, and the plain language of Minn.
Stat. §§ 609.02, .2242.
Equal protection
Appellant also argues that not treating out-of-state convictions as though they had
been adjudicated in Minnesota violates the equal protection clauses of the United States
and Minnesota Constitutions. The district court did not rule on this argument because
appellant did not raise the issue to the district court.
The constitutionality of a statute presents a question of law that we review de novo.
State v. Fitch , 884 N.W.2d 367, 373 (Minn. 2016). The party challenging the
constitutionality of a statute must demon strate beyond a reasonable doubt that the statute
is unconstitutional. Id. Statutes are presumed to be constitutional and our “power to
declare a statute unconstitutional should be exercised with extreme caution and only when
absolutely necessary.” In re Welfare of B.A.H. , 845 N.W.2d 158, 162 (Minn. 2014).

2 Furthermore, Minn. Stat. § 609.035 explicitly governs criminal convictions in Minnesota.
Appellant cites numerous cases where Minnesota courts appropriately applied Minn. Stat.
§ 609.035 to cases involving Minnesota defendants. See State v. Kebaso, 713 N.W.2d 317,
322 (Minn. 2006); State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995); State v. Notch,
446 N.W.2d 383, 385–86 (Minn. 1989); State v. Norregaard, 384 N.W.2d 449, 449 (Minn.
1986); State v. Morris, 160 N.W.2d 715, 718 (Minn. 1968); State v. Johnson, 141 N.W.2d
517, 521–22 (Minn. 1966). These cases are all irrelevant. None of these cases involve
out-of-state defendants, nor do they involve application of previous out -of-state
convictions to enhance current Minnesota charges.

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Appellate courts generally will not consider matters not argued to and considered by the
district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). And even constitutional
claims can be forfeited by not raising them to the district court. See In re Welfare of C.L.L.,
310 N.W.2d 555, 557 (Minn. 1981) (declining to address a constitutional issue raised for
the first time on appeal from a termination of parental rights).
Appellant did not raise his current constitutional claim before the district court. We
therefore hold that appellant forfeited his equal-protection argument. Id.3
II. The district court did not abuse its discretion in denying appellant’s
motion to withdraw his guilty plea.

The validity of a guilty plea is a question of law, which we review de novo. State
v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). At any time, either before or after sentencing,
courts allow defendants to withdraw a guilty plea if they establish that “withdrawal is
necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. “A manifest
injustice exists if a guilty plea is not valid,” but a “defendant bears the burden of showing
his plea was invalid.” Raleigh, 778 N.W.2d at 94. “To be constitutionally valid, a guilty
plea must be accurate, voluntary, and intelligent.” Id. (citing State v. Trott , 338 N.W.2d
248, 251 (Minn. 1983)).

3 And even if appellant had raised this claim before the district court, under State v. Defatte, 2018 WL 6034972, at *3–4, the district court treated appellant’s North Dakota convictions
the same way it would have treated thos e convictions had they occurred in Minnesota.
Therefore appellant cannot show that “similarly situated persons have been treated
differently,” Paquin v. Mack , 788 N.W.2d 899, 906 (Minn. 2010), and this showing is a
threshold requirement to make out an equal -protection claim, State v. Cox , 798 N.W.2d
517, 521 (Minn. 2011). Thus, appellant’s claim would also fail on its merits.

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Before sentencing, district courts may allow defendants who pleaded guilty to
withdraw their plea if it is “fair and just to do so.” Minn. R. Crim. P. 15.05, subd. 2. This
standard requires district courts to give “due consideration to the reasons advanced by the
defendant . . . and any prejudice the granting of the motion wo uld cause the prosecution.”
Id. We review a district court’s denial of such a motion for an abuse of discretion, and will
only reverse such a denial in a “rare case.” Kim v. State , 434 N.W.2d 263, 266 (Minn.
1989).
Appellant argues both standards apply to our review of his request to withdraw his
guilty plea. Respondent argues that both standards cannot apply concurrently, but does not
provide any argument or explanation as to why this is so.
Respondent is incorrect. The rules plainly allow for a mandatory plea withdrawal
“[a]t any time ” if the defendant can establish a “manifest injustice.” Minn. R. Crim. P.
15.05, subd. 1. This plainly covers the time both before and after sentencing. The rule
also allows for a discretionary plea withdrawal before sentencing if it is “fair and just.” Id.
at subd. 2. This subdivision exclusively applies to the time before sentencing. Therefore ,
both subdivisions apply to the time before sentencing. See also, Raleigh, 778 N.W.2d at
97 (analyzing separately arguments that an appellant should have been allowed to withdraw
his guilty plea before sentencing under each standard).
Here, appellant moved to withdraw his guilty plea before he was sentenced. The
plain language of the rule allows for a challenge under either subdivision if made before
sentencing. Respondent has failed to cite to any legal authority holding an appellant could

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only make a claim under one subdivision of rule 15.05 if he or she moved to withdraw a
guilty plea before sentencing.
Manifest-injustice standard

The hear t of appellant ’s arguments under the manifest -injustice standard simply
reframe his earlier claims. Appellant makes three distinct arguments that we will address.
First, appellant argues that the plea was inaccurate because the factual basis for his
prior convictions was inadequate. Appellant objects to the leading yes and no questioning
to determine the factual basis for appella nt’s plea. But appellant fails to submit any legal
authority that renders the factual basis for his plea (his testimony, compar ison of the
statutes, and consideration of the charging documents in the previous North Dakota
convictions) actually “inaccurate.” And furthermore, contrary to appellant’s
representation, the transcript reveals that the factual basis for appellant’s plea was primarily
established through appellant’s own words. There is no legal basis to grant appellant relief
under this analysis, and so this argument fails.
Appellant next argues that the record before the court was “insufficient as a matter
of law to esta blish that [the prior convictions] were QDVOs under Minnesota law.” But
this is simply a reassertion of the argument that the district court was obliged to inquire
into the factual basis for appellant’s prior convictions at all. As discussed above, the statute
only requires that the convictions exist and are “similar” to Minnesota equivalents; it does
not permit district courts to require additional steps before accepting the convictions as
QDVOs. See Moen, 752 N.W.2d at 536 (comparing North Dakota statutes with Minnesota
equivalents to determine if the prior convictions were QDVOs without inquiring into the

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factual basis for the prior convictions).4 Because we conclude that the relevant statutes do
not require or allow district courts to in quire into the factual basis for prior convictions,
appellant’s argument fails.
Appellant’s third argument also fails as a matter of law. Appellant argues that the
state did not prove by a preponderance of the evidence that the multiple convictions on the
same date are not the result of a “single course of conduct, ” such that he could have been
sentenced for each of them had they occurred in Minnesota. But as above, there is no
requirement for the state to prove that the convictions did not result from th e same course
of conduct. See Minn. Stat. § 609.02, subd. 16. And this court has already ruled that even
in Minnesota—when a defendant is convicted of multiple crimes but only sentenced for
one under Minn. Stat. § 609.035 —multiple convictions will be cou nted as multiple
QDVOs. Defatte, 2018 WL 6034972, at *5. Thus, this claim also fails.
Appellant’s fourth and final claim —that his plea was not intelligently made —is
derivative of the immediately preceding argument. Appellant claims his plea was not
intelligently made beca use “the plea was inaccurate .” But if the plea was inaccurate,
denying a withdrawal is already a manifest injustice without considering if it was
intelligent. If the plea was accurate, then, by appellant’s own logic, it was also intelligent.
This claim cannot be analyzed separately from the above argument that the plea was
inaccurate, and also fails.
We therefore hold that there was no manifest injustice requiring plea withdrawal.

4 And appellant does not argue that the statutes that he was convicted under in North Dakota
are not “similar” to Minnesota equivalents that are QDVOs.

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Fair-and-just standard

Appellant also argues that the district court abused its discretion in not allowing him
to withdraw his guilty plea because “the change in criminal history and facts considered in
negotiating the plea agre ement changed substantially.” While appellant’s argument is
unclear, the only gr ounds appellant argues that could require reversal under our standard
of review would be that the district court did not give “due consideration” to appellant’s
argument. See Minn. R. Crim. P. 15.05, subd. 2. Appellant argues, “[t]he Court did not
consider or recognize the impact a lower criminal history score and less serious criminal
history has on plea negotiations and sentences.” Appellant is correct that the court did not
consider this specific argument, but that is because appellant did not make th is argument
to the district court. It is axiomatic that the district court cannot abuse its discretion in
failing to consider an argument that an appellant did not make. Therefore this argument
also fails.
Appellant also argues that the record shows, “[a]ppellant intended to seek a different
sentence if he was correct that the offenses arose out of a single behavioral incident.” Of
course, that is what appellant intended. If there was only one qualifying QDVO, the district
court could not have convicted and sentenced appellant for the crime to which he pleaded.
It is unclear how appellant’s intent —regarding what he would have done if the district
court had done something it did not do—created a situation that requires this court to hold
that the district court abused its discretion. But given that appellant has failed to support
the argument with any legal authority, we simply hold that appellant failed to meet his
burden of establishing that he is entitled to relief. See State v. Lopez, 794 N.W.2d 379, 382

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(Minn. App. 2011) (“The defendant has the burden to prove that a fair -and-just reason
exists to withdraw his plea.”).
Because none of appellant’s arguments warrant relief, we hold that the district court
did not abuse its discretion when it denied appellant’s motion to withdraw his guilty plea
under the “fair and just” standard.
Affirmed.