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This opinion is nonprecedential except as provided by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
A21-0335

State of Minnesota,
Respondent,

vs.

James Earl Bailey,
Appellant.

Filed February 14, 2022
Reversed and remanded
Smith, Tracy M., Judge

Olmsted County District Court
File Nos. 55-CR-20-2473, 55-CR-20-4030

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

Mark A. Ostrem, Olmsted Coun ty Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Pres iding Judge; Smith, Tr acy M., Judge; and
Gaïtas, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this direct appeal from final judgments of conviction for felony domestic assault
and violating a domestic abus e no contact order (DANCO), appellant James Earl Bailey
2
argues that he must be permitted to withdraw his Alford plea1 to domestic assault because
(1) he did not acknowledge that there was sufficient evidence to convict him beyond a
reasonable doubt and (2) the plea-hearing record failed to establish his relationship to the
victim as a family or household member, which is an element of the crime. Because Bailey
did not adequately acknowledge that there was sufficient evidence to find him guilty
beyond a reasonable doubt, we reverse and remand.
FACTS
In January 2020, K.J. accused Bailey of physically and sexually assaulting her. K.J.
also accused Bailey of contacting her in violation of a DANCO. The state filed a complaint
charging Bailey with first-degree criminal sexual conduct, felony domestic assault, and
felony violation of a DANCO.
Bailey pleaded guilty, via an Alford plea, to felony domestic assault. 2 In exchange
for Bailey’s guilty plea to domestic assault, the state agreed that it would dismiss the more
serious charge of first-degree criminal sexual conduct.
At the start of the plea hearing, during the district court’s advisory of Bailey’s rights,
the district court explained to Bailey what an Alford plea means, stating, “[W]hat it means
is that you are admitting that th ere is a substantial likelihood that the jury would find you
guilty of the crimes you are accused of.” The district court asked Bailey if he “[understood]

1 An Alford plea allows a defendant to plead guilty while maintaining innocence of the
charged offense because there is sufficient evidence for a jury to find the defendant guilty
at trial. State v. Goulette , 258 N.W.2d 758, 760-61 (M inn. 1977) (discussing North
Carolina v. Alford, 400 U.S. 25, 38 (1970)).

2 Bailey pleaded guilty to a DANCO violation but did so via a “typical plea” rather than an
Alford plea. Bailey’s conviction for that offense is not at issue on this appeal.
3
that,” and Bailey responded, “Yes.” Bailey’s counsel then examined Bailey to establish a
factual basis for the plea. Defense counsel asked Bailey whether he was acknowledging
that there was a “substantial likelihood that [he] could be found guilty.” Bailey responded,
“There would be a chance; ye s.” The prosecutor then examined Bailey and asked him
whether, based on the evidence that would be pr esented, Bailey agreed that “a jury could
convict [him] of the crime of domestic assault.” Bailey responded, “Yes, it’s a possibility.”
The district court accepted Bailey’s Alford plea. It later convicted Bailey of both
domestic assault and violating a DANCO a nd sentenced him to consecutive prison
sentences of 39 months for domestic assault and 12 months and one day for violating the
DANCO, in accordance with the plea agreement.
This appeal follows.
DECISION
Bailey argues that he is entitled to withdraw his plea because it is invalid. Appellate
courts review the validity of a plea de novo. State v. Raleigh, 778 N.W.2d 90, 94 (Minn.
2010).
A defendant does not have an absolute right to withdraw a guilty plea. Id. at 93. But
a court must allow withdrawal if it is n ecessary to correct a manifest injustice. Id. A
manifest injustice exists when a gu ilty plea is constitutionally invalid. Id. at 94. The
requirement that a plea be constitutionally valid applies equally to an Alford plea. See State
v. Theis, 742 N.W.2d 643, 646 (Minn. 2007).
To be valid, a plea must be accurate, intelligent, and voluntary. Raleigh, 778 N.W.2d
at 94 (citing Alford, 400 U.S. at 31). The accuracy re quirement of a valid guilty plea
4
protects a defendant “from plead ing guilty to a more serious offense than he could be
convicted of were he to insist on his right to trial.” Theis, 742 N.W.2d at 649 (quoting State
v. Trott, 338 N.W.2d 248, 251 (Minn. 1983)). This requirement is particularly important in
the context of an Alford plea because of the “inherent c onflict” in pleading guilty while
maintaining innocence. Id. For an Alford plea to be accurate, an adequate factual basis must
be established. Id.
An adequate factual basis for an Alford plea requires “two related components: a
strong factual basis and the defendant’s ac knowledgement that th e evidence would be
sufficient for a jury to find the defenda nt guilty beyond a reasonable doubt.” Williams v.
State, 760 N.W.2d 8, 12-13 (Minn. App. 2009), rev. denied (Minn. Apr. 21, 2009). These
two components “provide the c ourt with a basis to independen tly conclude that there is a
strong probability that the defendant woul d be found guilty of the charge.” Theis, 742
N.W.2d at 649.
Bailey argues that neither component is satisfied. We begin with his argument
regarding the second component—that he did not acknowledge that the evidence would be
sufficient to prove guilt be yond a reasonable doubt. Bailey contends that his
acknowledgement that there was a “chance” or “possibility” that he could be convicted is
insufficient to establish an accurate plea. Bailey argues that his case is like Theis, where
the supreme court concluded that the defendant’s Alford plea was inaccurate when he
answered “Yes” when asked whether he agreed that “there is a risk” that he would be found
guilty. See id. at 650.
5
The state contends that Theis is distinguishable because in Theis the defendant was
asked whether he agreed that there was a “risk” that he would be found guilty whereas here
Bailey was asked by defense co unsel whether he agreed th at there was a “substantial
likelihood” that he would be found guilty. See id. It is true that the questions posed in the
two cases were different. But Bailey did not simply respond “yes” when asked whether he
agreed that there was a substa ntial likelihood of a guilty find ing; rather, he responded,
“There would be a chance; yes.” Similarly, when asked by the prosecutor whether he
agreed that, based on the likely evidence, “a jury could convict [him] of the crime of
domestic assault,” he answered, “Yes, it’s a possibility.” In both instances, Bailey qualified
his “yes” answer by agreeing that there was a “chance” or a “possibility” of conviction.
Acknowledging a “chance” or a “possibility” of conviction is not so different from
acknowledging a “risk” of conviction.3 See id.
The state relies on Matakis v. State to argue that particular language is not required
as long as the defendant acknowledges, as Matakis did, that the state “would have sufficient
evidence to find you guilty if the matter went to trial.” 862 N.W.2d 33, 38 (Minn. 2015)
(alteration in original). But Bailey did not ever provide an unqualified affirmative response
to the question of whether a jury would have sufficient ev idence to find him guilty. He
qualified his answers by saying that there was “a chance” or “a possibility” that he would
be found guilty. In Matakis, the supreme court observed th at asking a defendant whether
he agreed that he “could be found guilty” based on the evidence “might be comparable to

3 We also note that neither question posed to Bailey described the state’s burden of proof,
although the district court had described the state’s burden of proof earlier in the hearing.
6
the ‘risk’ language from Theis.” Id. (emphasis added). We conclu de that the “chance” or
“possibility” language used here is co mparable to the “risk” language from Theis and is
insufficient to establish an accurate plea. See Theis, 742 N.W.2d at 650.
Nor does Bailey’s exchange with the district court judge during the district court’s
advisory of Bailey’s rights constitute sufficient acknowledgement. The district court said:
[W]hat [an Alford plea] means is that you are admitting that
there is a substantial likelihood that the jury would find you
guilty of the crimes you are accused of. But you instead would
prefer to plead guilty, take adva ntage of the benefit of a plea,
instead of going to trial and ri sking that substantial likelihood
that the jury would find you guilty. Do you understand that?

Bailey responded, “Yes.”
While Bailey’s answer was unequivocal, it was not in response to a question about
the evidence against him for the crime to which he was plea ding guilty. Rather, it was an
acknowledgement, at the start of the hearing, that he understood the concept of an Alford
plea. Because the exchange between Bailey an d the district court did not produce an
acknowledgement by Bailey that the evidence in this case would be sufficient for a jury to
find him guilty, it does not satisfy the accuracy requirement of Bailey’s Alford plea. See id.
at 649 (explaining that the preferred practice in an Alford plea is “for the factual basis to
be based on evidence discussed with the defenda nt on the record at the plea hearing” and
for the defendant to “specifically acknowledge on the record at the plea hearing that the
evidence the State would likely offer against him is suffici ent for a jury, applying a
reasonable doubt standard, to find the defenda nt guilty of the offense to which he is
pleading guilty”).
7
Finally, the state also attempts to distinguish Theis on the ground that, unlike here,
the factual basis in Theis was lacking. See id. at 649-50. But this argument conflates the
two components of an accurate Alford plea. It is true that ther e must be a “strong factual
basis” to support the defendant’s plea. Id. at 649. But an accurate Alford plea also requires
the defendant’s acknowledgment th at the evidence likely to be produced is sufficient to
prove guilt. Id. (“In addition, the court must be able to determine that the defendant, despite
maintaining his innocence, agrees that evidence the State is likely to offer at trial is
sufficient to convict.” (emphasis added)). He re, Bailey did not sufficiently make that
acknowledgement.
Because Bailey did not suffi ciently acknowledge that the likely evidence was
sufficient for a jury to find him guilty beyond a reasonable doubt, his Alford plea was not
accurate and thus was invalid. See id. at 646. Bailey must therefore be permitted to
withdraw his guilty plea.4
Reversed and remanded.

4 Bailey also argues that the fi rst component of an accurate Alford plea was not met—
specifically, that there was not a “strong factual basis” to prove that K.J. was a family or
household member, as required to establish domestic assault. See Minn. Stat. § 609.2242,
subd. 1 (2018) (establishing elements of dom estic assault). Bailey did not admit on the
record that he and K.J. were in “a significant romantic or sexual relationship,” which is the
relevant definition of “family or household member” in this case. See Minn. Stat.
§ 518B.01, subd. 2(b)(7) (2018) . Nor were there witness stat ements or other documents
introduced to that effect at the plea hearing. The district c ourt stated that it would “have
the record supplemented with a copy of the police reports” following the hearing. We need
not decide whether this record establishes a strong factual basis in light of our other ruling
in this case. But we reiterate that Theis outlines the practice that should be followed for
establishing the factual basis for an Alford plea, and that practice includes discussion at the
plea hearing of the likely evidence to prove the elements of a charge. 742 N.W.2d at 649.