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This opinion will be unpublished and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
A19-0878

State of Minnesota,
Respondent,

vs.

Christopher Marlin Vosburg,
Appellant.

Filed April 13, 2020
Reversed and remanded
Bratvold, Judge

Hennepin County District Court
File No. 27-CR-17-23193

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Ryan Magnus, Blair Magnus, PLLC, Mankato, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this direct appeal from a final judgme nt of conviction, appellant challenges the
district court’s denial of his motion to withdraw a guilty plea. Appellant pleaded guilty to
engaging in a pattern of stal king conduct by committin g, within five y ears, two or more

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acts in violation of the stalking-by-telephone statute, and then testified to sending multiple
unwanted text messages to his ex-girl friend during two distinct time periods. See Minn.
Stat. §§ 609.749, subd. 2(4) (stalking by te lephone), subd. 5(a) (pattern of stalking
conduct) (2016). The district court later reject ed appellant’s motion to withdraw his plea,
found him guilty of a pattern of stalking conduct, and sentenced him to prison.
While this appeal was pending, we issued our decision in State v. Peterson ,
936 N.W.2d 912 (Minn. App. 2019), in whic h we invalidated the stalking-by-telephone
statute as facially overbroad in violation of the First Ame ndment. Before the submission
of this appeal to this court, the state conceded that Peterson “controls the outcome in this
case.” After due consideration, and given our decision in Peterson, we conclude that
appellant’s guilty plea is not accurate and thus invalid. We reverse and remand for the
district court to allow appellant to withdraw his guilty plea to correct a manifest injustice.
FACTS
In January 2017, appellant Christopher Mar lin Vosburg’s ex-girlfriend reported to
law enforcement several incidents during a nd after their roughly two-and-a-half-year
romantic relationship. The state charged Vosburg with two counts of nonconsensual
dissemination of private sexual images under Minn. Stat. § 617.261, subd. 1 (2016). After
further investigation, the state amended its complaint to allege a pattern of stalking conduct
under Minn. Stat. § 609.749, subd. 5(a) (count one); third-degree criminal sexual conduct
(penetration using force or coercion) under Minn. Stat. § 609.344, subd. 1(c) (2014) (count
two); third-degree criminal sexual conduct (p enetration and victim physically helpless)
under Minn. Stat. § 609.344, subd. 1(d) (2016) (count three); and two counts of

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nonconsensual dissemination of private sexual images under Minn. Stat. § 617.261, subd. 1
(counts four and five).1
The parties negotiated a plea agreement in which Vosburg agre ed to plead guilty
to the pattern-of-stalking-conduct charge (count one) and the state agreed to recommend a
“bottom-of-the-box” sentence of 33 months and to dismiss the other four counts. At the
plea hearing, Vosburg pleaded guilty to enga ging in a pattern of stalking conduct and
admitted that he sent many te xt messages to his ex-girlfri end during two distinct time
periods in 2016 and early 2017, that he knew or should have known that the text messages
would cause her to fear for her safety, and that she had, in fact, been afraid for her personal
safety.
At the sentencing hearing, Vosburg asked for a continuance so he could move to
withdraw his guilty plea, which the district court granted. Vosburg moved to withdraw his
guilty plea, arguing that his plea was not inte lligent. The district c ourt denied Vosburg’s
motion, found him guilty, and sentenced him to 33 months in prison with credit for 43 days.
The state dismissed the remaining four counts.
Vosburg appealed.
D E C I S I O N
In his brief to this court, Vosburg argues that the district court abused its discretion
in denying his motion to withdraw his guilty plea without an evidentiary hearing and asks

1 Although it is not at issue in this appeal , we note that, while Vosburg’s appeal was
pending, this court held that Minn. Stat . § 617.261 was unconstitutionally overbroad in
violation of the First Amendment. State v. Casillas, 938 N.W.2d 74, 91 (Minn. App. 2019).
The supreme court granted review in Casillas on March 17, 2020.

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this court to reverse and remand so he can prove that his plea was not intelligently made.
Vosburg and the state filed briefs on the issu e in August and October 2019, respectively.
This court scheduled oral argument for January 16, 2020.
On December 9, 2019, this court issued its opinion in State v. Peterson, in which
we determined that Minn. Stat. § 609.749, su bd. 2(4), which crimin alized stalking by
telephone, was facially overbroad and could not be remedied by a narrowing construction.
936 N.W.2d 912 (Minn. App. 2019). A petition for review was filed on January 8, 2020.
On January 8, 2020, the state moved to st rike oral argument and either stay this
appeal pending the outcome of the petition for review filed in Peterson, or “issue a decision
consistent with Peterson.” Vosburg did not respond to the motion. On January 13, we
granted the state’s motion to strike oral ar gument. The matter was submitted for decision
after a nonoral conference on January 16, 2 020. The supreme court denied review in
Peterson on February 26, 2020.
As mentioned above, the state’s motion to strike asserted that “Peterson controls the
outcome in this case.” Even if a party concedes an issue, “it is the responsibility of appellate
courts to decide cases in accordance with law.” State v. Hannukesla , 452 N.W.2d 668,
673 n.7 (Minn. 1990); see also State v. Werner , 725 N.W.2d 767, 77 2 n.1 (Minn. App.
2007) (“While we generally accept a party’s concessions, we need not do so when the party
has made a concession on a threshold issu e that presents a question of law.”); see, e.g.,
State v. Watson, 829 N.W.2d 626, 631 (Minn. App. 2013) (rejecting the state’s concession
that the district court erroneously sentenced appellant), review denied (Minn. June 26,

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2013). We therefore consider whether Vosburg has a right to withdraw his guilty plea based
on our decision in Peterson.
A defendant does not have an “absolute right” to withdraw a guilty plea. State v.
Farnsworth, 738 N.W.2d 364, 371 (Minn. 2007). But a court must permit a defendant to
withdraw a guilty plea if “withdrawal is necessa ry to correct a manife st injustice.” Minn.
R. Crim. P. 15.05, subd. 1 (“At any time the court must allow a defendant to withdraw a
guilty plea upon a timely motion and proof to the satisfaction of the court that withdrawal
is necessary to correct a manifest injustice.”); see also State v. Theis, 742 N.W.2d 643, 646
(Minn. 2007) (reversing and remanding where guilty plea was not accurate).
A manifest injustice occurs when a guilty plea is invalid, meaning it is not “accurate,
voluntary, and intelligent.” Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002). For a guilty
plea to be accurate, “there must be sufficien t facts on the record to support a conclusion
that defendant’s conduct falls within the ch arge to which he desi res to plead guilty.”
State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003) (quotation omitted). The validity of a
guilty plea is a question of law that appellate courts review de novo. See State v. Raleigh,
778 N.W.2d 90, 94 (Minn. 2010).
Vosburg pleaded guilty to a pattern of stalking conduct under Minn. Stat. § 609.749,
subd. 5(a). Subdivision 5(b) defines a “pattern of stalking conduct” as a felony in which a
defendant commits “two or more acts within a five-year period that violate or attempt to
violate the provisions of . . . this section .” Minn. Stat. § 609.749, subd. 5(b) (emphasis
added). Thus, to be accurate and valid, the factual basis for Vosburg’s plea must establish
at least two acts that violat e section 609.749, which defi nes eight acts as stalking. Id.,

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subd. 2 (1)-(8). For example, Minn. Stat. § 609.749, subd. 2(4), provides that an individual
commits a gross misdemeanor upon “repeatedl y mak[ing] telephone calls [or] send[ing]
text messages.” “Stalking” means that the actor “knows or has reason to know” that his or
her conduct would “cause the victim under the circumstances to feel frightened, threatened,
oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim.”
Minn. Stat. § 609.749, subd. 1.
At the plea hearing, Vosburg testified th at he sent his ex-girlfriend many text
messages during two different time periods, that he knew or should have known his conduct
would cause her to fear for her safety, and that she did fear for her personal safety. In other
words, at the time of Vosburg’s plea and conviction, he had admitted to acts that violated
Minn. Stat. § 609.749, subd. 2(4), the stalking-by-telephone statute.
But after Vosburg’s plea and conviction, Peterson invalidated the stalking-
by-telephone statute as facially unconstitutional. Peterson, 936 N.W.2d at 922. When a
court declares a statute unconstitutional, “it is not a law and it is as inoperative as if it had
never been enacted.” Fedziuk v. Comm’r of Pub. Safety , 696 N.W.2d 340, 349 (Minn.
2005); see also State v. Mullen , 577 N.W.2d 505, 512 (Minn. 1998) (stating that an
appellate court’s determinati on that a statute is uncons titutional renders the statute
inoperative).
Because Peterson invalidated Minnesota Statutes section 609.749, subdivision 2(4),
and because Vosburg testified to two instan ces of violating the stalking-by-telephone
statute to support his guilty plea of pattern-of-stalking conduct, Peterson governs our
review of the factual basis for Vosburg’s plea. The factual basis must “support a conclusion

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that defendant’s conduct falls within the ch arge to which he desi res to plead guilty.”
Iverson, 664 N.W.2d at 349 (quota tion omitted). Vosburg testif ied to two instances of
conduct that are no longer criminalized as stalking by telephone and meet no other
definition of stalking conduct. Thus, becaus e Vosburg’s testimony does not provide the
factual basis for one element of the pattern -of-stalking-conduct offense—a pattern of
conduct in violation of “this section”—his plea is not accurate. Because Vosburg’s plea is
inaccurate, it is invalid, and we conclude that Vosburg has a right to withdraw his invalid
guilty plea to correct a manifest injustice. See Minn. R. Crim. P. 15.05, subd. 1.
Given our conclusion, we do not consider or decide whether Vosburg’s plea was
intelligent. Rather, we reverse and remand fo r the district court to allow Vosburg to
withdraw his guilty plea and for further proceedings consistent with this opinion.2
Reversed and remanded.

2 See generally State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000) (where trial court has
set aside guilty verdicts before sentencing b ecause a subdivision of the charging statute
was declared unconstitutional, retrial under an amended complaint is not prohibited under
the Double Jeopardy Clauses of the state and federal constitutions).