State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0700

State of Minnesota,
Respondent,

vs.

Michael Jeffrey Herron,
Appellant.

Filed October 4, 2021
Reversed and remanded
Gaïtas, Judge

Hennepin County District Court
File No. 27-CR-19-21918

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Pub lic Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presidi ng Judge; Ross, Judge; and Gaïtas, Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
In this direct appeal from a judgmen t of conviction for unlawful possession of
ammunition, and following a remand to the dist rict court for postconviction proceedings,
appellant Michael Jeffrey Herron argues that he is entitled to withdraw his guilty plea. On
remand, the district court found that trial counsel erroneously advised Herron that his guilty
2
plea preserved his right to appeal an alleged sp eedy-trial violation, and that but for this
incorrect information, Herron would not have pleaded guilty. The district court denied
Herron’s request to withdraw his guilty plea but, in the interest of fairness, “affirm[ed] his
right to appeal” the alleged speedy-trial vi olation. Because Herron’s guilty plea was
invalid at its inception, we reverse and remand.
FACTS
In September 2019, Minn eapolis police investigated a report that Herron had
committed an assault while possessing a firear m. The complainant alleged that Herron
restrained her in his bedroom, made a statement that caused her to fear he would sexually
assault her, and pointed a handgun at her. Herron was discovered hiding in a bush behind
a neighboring house, and the pol ice arrested him. The comp lainant identified Herron as
her attacker. Police obtained a search warrant and found a weapon-mounted flashlight and
a box of nine-millimeter ammunition in Herron’s bedroom. In the upstairs living room,
police found a nine-millimeter pistol beneath th e sofa. Due to Herron’s criminal history,
he is prohibited from possessing a firearm or ammunition.
Respondent State of Minnesota charge d Herron with one co unt of unlawful
possession of a firearm, Minn. Stat. § 624.713, subd. 1(2) (2018), and one count of threats
of violence, Minn. Stat. § 60 9.713, subd. 1 (2018). On October 14, 2019, Herron
demanded a speedy trial, and a trial was scheduled for December 16, 2019.
Days before the scheduled trial, Herron a nd his counsel appeared before the district
court to discuss the trial date. The district court explained that a judge’s unexpected health
problem had significantly impacted court cal endars and would require rescheduling the
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December 16, 2019 trial. He rron’s attorney acknowledged th at there was good cause to
continue the trial but noted concern about Herron’s speedy-trial rights.1
I think it is important to note that Mr. Herron obviously
has his speedy trial rights. He already abrogated them once
when he agreed to a two-day extension beyond the original
without any, you know, necessity but just because it originally
was the first date that the Court had available. The Court found
good cause to extend it that two days because we couldn’t even
get him in prior to that, during his normal speedy.

So, he’s already being pushe d out and now, he’s being
asked to be pushed out again. He’s been in custody, presumed
innocent, this whole time and ob viously, there’s a number of
potential benefits to him having a trial quick. But, most
importantly, it’s his liberty that ’s on the line and now, he’s
being asked once again to set it in the new year. I understand
that the first date, I think, the parties have available is
January 21 and so, it’s over a month past where he is now.

The district court stated that this was “one of those situations that nobody could have really
done anything to prevent” and found good cause to continue Herron’s trial.
On January 21, 2020—the rescheduled tria l date—the state added a third count to
the complaint, charging Herr on with unlawful possession of ammunition, Minn. Stat.
§ 624.713, subd. 1(2). The following day, just as jury selection was about to begin, Herron

1 Under the rules of criminal procedure, after a defendant en ters a plea other than guilty
and demands a trial, the trial must commence within 60 days of the demand. Minn. R.
Crim. P. 11.09. However, the district court may begin trial outside the 60-day window on
a finding that good cause exists for the delay. Id., (b). A defendant’s right to a speedy trial
is also guaranteed by the state and federal constitutions. See State v. Taylor, 869 N.W.2d
1, 19 (Minn. 2015) (citing U.S. Const. amen d. VI; Minn. Const. art. I, § 6). The
constitutional speedy-trial right does not provide a “fixed rule for all cases that defines how
long is too long to wait for a trial.” State v. Mikell, 960 N.W.2d 230, 244 (Minn. 2021).
And “the speed with wh ich an accused must be brought to trial must be considered with
regard to the practical administration of justice.” Id. (quotation omitted).
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decided to plead guilty. He waived his right to a trial and entered a guilty plea to unlawful
possession of ammunition. In exchange, the state agreed to dism iss the two remaining
charges in the complaint. Th e parties agreed that Herron would receive the presumptive
sentence of 60 months in prison at a later sentencing hearing.
During the plea colloquy, Herron’s attorney noted Herron’s disagreement with the
district court’s earlier finding that there was good cause to continue his trial from December
2019 to January 2020. Th e following exchange then occurred between Herron and his
attorney:
Q: Okay. And so the only issue that you’ve raised about
this proceeding was a previous finding of good cause; is
that correct?
A: Yes.
Q: Okay. You understand all of your other issues you’re
waiving and giving up, correct?
A: Yes.

Several weeks later, Herron appeared before the district court for sentencing. The
district court sentenced Herron to 60 months in prison.
In May 2020, Herron filed a not ice of appeal to this court. He then moved to stay
the appeal in order to pursue postconvictio n relief. We grante d Herron’s motion and
remanded the case to the district court. In November, Herron filed a petition for
postconviction relief in the district court. His petition alleged that his guilty plea was
invalid because he did not know that, by pleading guilty, he gave up his right to appeal the
district court’s decision to continue his tria l beyond the speedy-trial deadline. In support
of the petition, Herron submitted an affidavit stating that his trial counsel had assured him
that he would be able to app eal the alleged speedy-trial viol ation following a guilty plea.
5
His affidavit also stated that he would ha ve opted for a trial if he had known that by
pleading guilty he would lose his right to challenge the district court’s speedy-trial ruling.
In March 2021, the district court i ssued an order denyi ng Herron’s petition for
postconviction relief. The district court de termined that Herron’s guilty plea was
“generally” valid—“[h]e went through the standard waiver of his rights with counsel and
agreed to waive the many rights identified in the written plea petition” and “[h]e similarly
acknowledged the 60 month sentence that was to be imposed as a result of his crime.” But
the district court found that statements made during Herron’s guilty-plea colloquy
demonstrated that “it was important to Mr. He rron that he preserve his right to challenge
the prior decision to continue his trial for goo d cause.” The district court observed that
“[h]ad the issue of the right to appeal been more explicitly addressed, there is no doubt in
the Court’s mind that Mr. Herron would have proceeded differently—such as through a
stipulated facts trial—to preserve that right in a more technically proper way.”
Accordingly, the district court concluded that Herron did preserve his “right to appeal his
case based on the earlier decision to find good cause to continue it.” Although the district
court rejected Herron’s request to withdraw his guilty plea by denying him postconviction
relief, it “recognize[d]” in the interest of fairness that Herron “retained the right to appeal
the decision to continue his [t rial] for good cause.” To enab le Herron to pursue the issue
on appeal, the district court stated that it would “allow Mr. Herron the normal time to
appeal that issue,” beginning the same day the order was issued.
Following the district court’s order, we granted Herron’s motion to reinstate his
direct appeal.
6
DECISION
On appeal, Herron argues that the distri ct court erred in denying his postconviction
request to withdraw his guilty plea for two reas ons. First, he contends that, because his
guilty plea was founded on the mistaken belief that he was preserving his right to appeal a
speedy-trial issue, the plea was not intelligently made and is therefore invalid. Second, he
asserts that he only decided to plead guilty based on the ine ffective representation of his
trial attorney, who wrongly advised him that he would be able to pursue the speedy-trial
issue on appeal from the guilty plea.
We first identify the standard of review that we must apply in considering Herron’s
claims. Herron filed a direct appeal and then stayed the appeal for postconviction
proceedings. After the distri ct court denied his petition fo r postconviction relief, Herron
reinstated his appeal. He now challenges th e district court’s postconviction decisions.
Under these circumstances, the Minnesota Supreme Court has instructed that the appellate
court should use the standard of review for a direct appeal. See State v. Beecroft , 813
N.W.2d 814, 836 (Minn. 2012); State v. Petersen , 799 N.W.2d 653 (Minn. App. 2011),
rev. denied (Minn. Sept. 28, 2011).
Both of Herron’s claims con cern the validity of his gui lty plea. Whether a guilty
plea is valid is a question of law that the appellate court reviews de novo. State v. Raleigh,
778 N.W.2d 90, 94 (Minn. 2010). Thus, in reviewing Herron’s challenges to his guilty
plea, we apply a de novo standard of review. See State v. Johnson, 867 N.W.2d 210, 214-
15 (Minn. App. 2015) (applying de novo review in determ ining validity of guilty plea
challenged on direct appeal).
7
Herron argues that he is entitled to withdraw his guilty plea. “A defendant does not
have an absolute right to withdraw a gu ilty plea once it [has been] entered.” State v.
Hughes, 758 N.W.2d 577, 582 (Minn. 2008). Rather, a court “m ust allow a defendant to
withdraw a guilty plea” after sentencing only when the de fendant establishes “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.” Raleigh, 778 N.W.2d at 94.
According to Herron, his guilty plea is invalid because it is constitutionally
deficient. To satisfy constitutional requirements, a guilty plea must be intelligent, accurate,
and voluntary. Dikken v. State, 896 N.W.2d 873, 876 (Mi nn. 2017). A defendant bears
the burden of showing that a guilty plea doe s not comport with these requirements.
Raleigh, 778 N.W.2d at 94.
Against this legal backdrop, we next consider whether Herron’s guilty plea is valid.
Herron’s first argument is that his plea is not intelligent because he erroneously believed
that he would be able to appeal his speedy-trial issue following the plea.
“To be intelligent, a guilty plea must represent a know ing and intelligent choice
among the alternative courses of action available.” Dikken, 896 N.W.2d at 877 (quotation
omitted). “Whether a plea is intelligent depends on what th e defendant knew at the time
he entered the plea . . . .” Id. More specifically, a plea is intelligent when it embodies the
defendant’s understanding of the charges, the rights he has waived, and the consequences
of entering the plea. Id.; see Nelson v. State, 880 N.W.2d 852, 858 (Minn. 2016).
One consequence of pleading guilty is the wa iver of all non-jurisdictional defects.
See State v. Ford , 397 N.W.2d 875, 878 (Minn. 1986) (“A guilty plea by a counseled
8
defendant has traditionally operated . . . as a waiver of all non-jurisdictional defects arising
prior to the entry of the plea.”). A defendant’s right to a speedy trial is a non-jurisdictional
issue that is waived by a guilty plea. See State v. Smith, 749 N.W.2d 88, 97 (Minn. App.
2008) (“[W]hen [appellant] pleaded guilty, his speedy-trial right evaporated, and any delay
up to that time was nullified by his plea.”).
Moreover, Minnesota law does not recogn ize a conditional guilty plea—a guilty
plea that expressly reserves a right to appeal—as a vehicle for preserving pretrial issues for
appellate review. See State v. Lothenbach , 296 N.W.2d 854, 857-58 (Minn. 1980),
superseded by statute, Minn. R. Crim. P. 26.01, subd. 4; see also In re Welfare of B.A.H.,
845 N.W.2d 158, 162 n.2 (Minn. 2014). By pleading guilty, a defendant waives the right
to appeal pretrial rulings. See Ford, 397 N.W.2d at 878.
Applying these principles here, Herron relinquished his right to have a speedy trial
when he entered a guilty plea. See Smith, 749 N.W.2d at 97. He also waived his right to
appeal any pretrial ruling concerning an alleged speedy-trial violation. See id.
The district court found that Herron did not understand these consequences when
he pleaded guilty, and in fact, he affirmatively believed the opposite to be true. According
to the district court’s factual findings, which the state does not challenge on appeal, Herron
intended to preserve his right to appeal th e alleged speedy-trial violation. And Herron
would not have pleaded guilty and “would have proceeded diffe rently” if he had
understood that a guilty plea would extinguish his ability to challenge the alleged speedy-
trial violation on appeal. Given these findings, Herron asks us to conclude that his guilty
plea is not intelligent and therefore invalid.
9
The state invites us to reframe the issue, however. Accord ing to the state, there is
“an exception to the general ru le” that a guilty plea waives non-jurisdictional defects.
Under that exception, a court may consider a pretrial issue notwithstanding a guilty plea
“where the record has clearly demonstrated” that the defendant inte nded to preserve the
issue for appeal. The state cites Lothenbach, 296 N.W.2d at 857, and Ford, 397 N.W.2d
at 878, in support of its argument.
In Lothenbach, the defendant pleaded guilty but expressly reserved a right to appeal
the denial of his suppression motion during th e guilty-plea hearing. 296 N.W.2d at 857.
The supreme court noted that a guilty plea by a counseled defendant normally operates as
a waiver of non-jurisdictional defects. Id. But the court articulated a procedure whereby
a defendant could preserve non-jurisdictional issues for appeal without having a full trial—
by pleading not guilty, waiving a jury trial, stipulating to the facts, and then appealing from
the judgment of conviction. Id. at 857-58. Under the circ umstances of the defendant’s
case, however, where all parties understood that the defendant was attempting to preserve
a pretrial issue for appeal, the supreme court elected to consider the defendant’s pretrial
issue. Id. Several years later, the court did the same in Ford. See 397 N.W.2d at 878.
Lothenbach was later codified in Minnesota Ru le of Criminal Procedure 26.01,
subdivision 4, which added additional requirements. The rule “allows a criminal defendant
to plead not guilty; waiv e all trial-related rights, including his or her right to a jury trial;
stipulate to the state’s evidence in a trial to the court; and then appeal a dispositive, pretrial
ruling.” State v. Myhre, 875 N.W.2d 799, 802 (Minn. 2016). Under the rule, which was
enacted to “replace[] Lothenbach as the method for preserving a dispositive pretrial issue
10
for appellate review in criminal cases,” see id., both parties must acknowledge that the
pretrial issue being preserved is dispositive and that appellate review will concentrate on
the pretrial issue only. Minn. R. Crim . P. 26.01, subd. 4. Additionally, these
acknowledgements must be made in writing or on the record. Id.2
The state relies on Lothenbach and Ford to conclude that the district court did not
abuse its discretion by denying Herron’s request to wit hdraw his guilty plea and instead
“recogniz[ing]” that Herron could raise his sp eedy-trial issue on appeal notwithstanding
the guilty plea. According to the state, Herron argued in his postconviction petition that he
wanted to preserve his right to appeal the sp eedy-trial issue and the district court’s order
granted him exactly that relief. The state suggests that although a guilty plea may not have
been the appropriate vehicle for preserving the issue, the district court fixed the problem
by making the issue appealable despite the procedural prob lem, much like the supreme
court did in Lothenbach and Ford.
We reject the state’s argument. Lothenbach and Ford do not stand for the
proposition that a district court can make a waived or forfeited issue appealable simply by

2 In Myhre, the Minnesota Supreme Court recognized that “strict comp liance” with the
provisions of rule 26.01, subdivision 4, has not been required and that a substantial amount
of procedural error has been tolerated “whe n the record shows that the parties clearly
intended to achieve the outcome contemplated by either Rule 26.01, subdivision 4, or
Lothenbach.” 875 N.W.2d at 804. Accordingly, the supreme court held that appellate
review of alleged procedural errors committed under rule 26.01, subdivision 4, is subject
to plain-error analysis rather than automatic reversal of the resulting conviction. Id. at 805-
06. Because the record in Myhre showed that the parties repeatedly referenced Lothenbach
and intended to invoke rule 26.01, subdivision 4, and the defendant showed no prejudice,
the supreme court concluded that the failure to comply with the rule did not satisfy the
plain error test and affirmed the defendant’s conviction. Id. at 806-07. Here, the state does
not cite Myhre or ask us to apply plain-error review.
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saying so in a postconviction order. And the st ate cites no other author ity on this point.
Moreover, in Lothenbach and Ford, the parties mutually intended to achieve the
outcome—review of a dispositive pretrial is sue—and were mistaken about the required
procedure. Here, the record does not support such a finding. Herron entered a guilty plea
without reference to the releva nt caselaw or rule 26.01, subdi vision 4. And the district
court found that “the issue of the right to appeal” was not “explicitly addressed” to fully
inform Herron of the consequences of pleading guilty.
More significantly, Herron’s challenge in his postconviction petition, and now on
appeal, concerns the constitutional validity of hi s guilty plea at its in ception. We cannot
sidestep this issue. See Minn. R. Crim. P. 15.05, subd. 1 (“[T]he court must allow a
defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction
of the court that withdrawal is necessary to correct a manifest injustice.”). Herron did not
pursue his speedy-trial issue on direct appeal . Instead, he specifically sought plea
withdrawal on the ground that his guilty plea was not intelligently made and is therefore
constitutionally invalid.
Given the district court’s unchallenged findings, we cannot conclude that the guilty
plea was intelligently entered. Because the district court found that Herron misunderstood
the direct consequences of his guilty plea, and otherwise would not have pleaded guilty,
we agree with Herron that his guilty plea is not intelligent. See Taylor, 887 N.W.2d at 823.
A guilty plea that is not intelligent is invalid. Dikken, 896 N.W.2d at 877. And when a
guilty plea is invalid, there is a manifest injustice. Raleigh, 778 N.W.2d at 94. Because
Herron’s guilty plea was not intelligently made and is invalid, there is a manifest injustice.
12
“[A] defendant who can show manifest inju stice is entitled as a matter of right to
withdraw his plea of guilty . . . .” Hirt v. State, 214 N.W.2d 778, 782 (Minn. 1974); see
also Minn. R. Crim. P. 15.05, subd. 1. Here, notwithstanding the manifest injustice, the
district court denied Herron’s request to wit hdraw his guilty plea. We conclude that the
district court, despite its creative attempt to craft a fair remedy, abused its discretion in
denying Herron’s petition for postconviction relief. Brown, 863 N.W.2d at 786. Thus, we
reverse and remand to the district court. On remand, Herron must be given an opportunity
to withdraw his guilty plea.
Because we reverse Herron’s conviction on the ground that his guilty plea is not
intelligent, we do not address his claim that his plea was invalid based on ineffective
assistance of trial counsel.
Reversed and remanded.