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This opinion is nonprecedential except as provided by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
A21-1481

State of Minnesota,
Respondent,

vs.

John Lee Backen,
Appellant.

Filed May 22, 2023
Affirmed
Hooten, Judge*

Crow Wing County District Court
File No. 18-CR-20-93

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

Donald F. Ryan, Crow Wing County Attorney, Janine LePage, Assistant County Attorney,
Brainerd, Minnesota (for respondent)

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

Considered and decided by Wheelock, Presiding Judge; Bryan, Judge; and Hooten,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
HOOTEN, Judge
Appellant argues he is entitled to withdraw his two pleas of guilty to first-degree
criminal sexual conduct because, as to one of the pleas, he did not enter a valid Norgaard1
plea based on lack of memory caused by amnesia or intoxication and because that plea was
not supported by an adequate factual basis. He maintains that the defect in the Norgaard
plea requires our reversal of both pleas, as the purportedly invalid plea implicates the
entirety of the plea agreement. Because appellant entered a valid Norgaard plea supported
by an adequate factual basis, we affirm.
FACTS
Respondent State of Minnesota charged appellant John Lee Backen with eight
counts of first-degree criminal sexual conduct. The state alleged that Backen sexually
abused his girlfriend’s children, child 1 and child 2, over a four -year period. Backen
reached an agreement with the state to plead guilty to counts four and eight, with Backen
pleading guilty to count four involving child 1 and entering a Norgaard plea to count eight
due to his inability to recall the sexual penetration of child 2.
During the plea colloquy, Backen maintained that he did not recall digitally
penetrating child 2, but he did not state the reason why he could not remember. He

1 A defendant may enter a Norgaard plea when the defendant “claims a loss of
memory . . . regarding the circumstances of the offense,” but the record “establish[es] that
the evidence against the defendant is sufficient to persuade the defendant and his or her
counsel that the defendant is guilty or likely to be convicted of the crime charged.” State
v. Ecker, 524 N.W.2d 712, 716-17 (Minn. 1994) (citations omitted); see also State ex rel.
Norgaard v. Tahash, 110 N.W.2d 867, 871-72 (Minn. 1961)).
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acknowledged that although he had used drugs and alcohol extensively during the time
period that he abused child 2, he did not expressly attribute his drug and alcohol use as the
reason why he could not remember or that his acts of abuse occurred while he was high or
intoxicated. Backen acknowledged that he believed the state had enough evidence to
convict him of the acts committed against child 2 based on his review of the statements the
child made to both the police and a child advocacy center accusing him of sexually
penetrating her with his fingers. Backen also asked the district court to take notice of the
facts contained in the complaint, describing the abuse of child 2 , to supplement his
testimony. After additional questioning by the district court confirming Backen’s
motivations and that he understood that he was entering a Norgaard plea, the district court
accepted Backen’s pleas of guilty to counts four and eight.
Following sentencing, Backen filed a postconviction petition with the district court
to withdraw his plea. The district court denied Backen’s petition for relief. Backen
appeals.
DECISION
Backen asserts that he should be allowed to withdraw his guilty plea s because he
did not enter a valid Norgaard plea supported by an adequate factual basis for count eight.
A defendant may withdraw a guilty plea if “withdrawal is necessary to correct a manifest
injustice.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010) (quoting Minn. R. Crim. P.
15.05, subd. 1). “A manifest injustice exists if a guilty plea is not valid.” Barrow v. State,
862 N.W.2d 686, 691 (Minn. 2015). A guilty plea “must be accurate, voluntary, and
intelligent” to be valid. Raleigh, 778 N.W.2d at 94. A court must allow the defendant to
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withdraw a guilty plea if the defendant proves that the plea was not accurate, voluntary,
and intelligent. See Barrow, 862 N.W.2d at 689 (placing the burden of proving the
invalidity of the plea on the defendant).
An accurate guilty plea requires a factual basis “showing that the defendant’s
conduct meets all elements of the offense to which he is pleading guilty.” State v. Jones,
921 N.W.2d 774, 779 (Minn. App. 2018), rev. denied (Minn. Feb. 27, 2019). This
requirement “is satisfied if the record contains a showing that there is credible evidence
available which would support a jury verdict that [a] defendant is guilty of at least as great
a crime as that to which he [pleaded] guilty.” Nelson v. State, 880 N.W.2d 852, 859 (Minn.
2016) (quotation omitted). “Assessing the validity of a plea presents a question of law that
[appellate courts] review de novo.” Raleigh, 778 N.W.2d at 94.
Backen entered a Norgaard plea of guilty to count eight. “A plea constitutes a
Norgaard plea if the defendant asserts an absence of memory on the essential elements of
the offense but pleads guilty because the record establishes, and the defendant reasonably
believes, that the state has sufficient evidence to obtain a conviction.” Williams v. State,
760 N.W.2d 8, 12 (Minn. App. 2009), rev. denied (Minn. Apr. 21, 2009). A Norgaard plea
must still be accurate, voluntary, and intelligent, and the validity of a Norgaard plea is
reviewed de novo. Id. at 11-12.
Backen maintains that a defendant must state the exact reason for their inability to
remember their conduct for a Norgaard plea to be valid, citing language from Ecker stating
that a defendant may plead guilty even though he “claims a loss of memory, through
amnesia or intoxication, regarding the circumstances of the offense.” 524 N.W.2d at 716.
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But Backen reads Ecker too strictly. Ecker cites State v. Fisher, 193 N.W.2d 819, 820
(Minn. 1972), as the basis for its rule that amnesia or intoxication can form the basis for a
Norgaard plea. Ecker, 524 N.W.2d at 716. In Fisher, the supreme court stated that it has
held “in a number of cases that where the defense is based on amnesia, real or feigned, [a]
defendant may nevertheless plead guilty if the evidence against him is sufficient to
persuade him and his counsel that he is guilty or likely to be convicted of the crime.” 193
N.W.2d at 820 (emphasis added). The supreme court’s acknowledgement in Fisher that a
defendant’s feigned amnesia can support the entry of a Norgaard plea undercuts Backen’s
argument that Ecker, a case that cites favorably to Fisher’s language, requires a defendant
to attribute their lack of memory of the event to a specific cause in order for the plea to be
valid. Thus, Ecker and its progeny do not support Backen’s claim.
Although Backen asserts that a defendant must claim that their memory loss resulted
from amnesia or intoxication, our caselaw does not require a defendant to testify to such
formal and rigid facts before entering a valid Norgaard plea. See Williams, 760 N.W.2d.
at 12 (“A plea constitutes a Norgaard plea if the defendant asserts an absence of memory
on the essential elements of the offense . . . .”). It is undisputed that Backen testified at the
plea hearing that he did not remember digitally penetrating child 2’s vagina. This
testimony is sufficient for us to conclude that Backen entered a valid Norgaard plea due to
his inability to remember the factual details surrounding the sexual abuse of c hild 2,
regardless the cause.
Backen also claims that the factual basis for his Norgaard plea is inadequate because
it was based upon his testimony in response to leading questions. Establishing the factual
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basis for a Norgaard plea differs from establishing the factual basis of a normal plea.
Generally, a factual basis is laid by “questioning the defendant and asking the defendant to
explain in his or her own words the circumstances surrounding the crime.” Ecker , 524
N.W.2d at 716. When a defendant enters a Norgaard plea, however, “the record must
establish that the evidence against the defendant is sufficient to persuade the defendant and
his or her counsel that the defendant is guilty or likely to be convicted of the crime
charged.” Id. “[A]n adequate factual basis” for a Norgaard plea requires “two related
components: a strong factual basis and the defendant’s acknowledgment that the evidence
would be sufficient for a jury to find the defendant guilty beyond a reasonable doubt.”
Williams, 760 N.W.2d at 12-13. “The strong factual basis and the defendant’s agreement
that the evidence is sufficient to support his conviction provide the court with a basis to
independently conclude that there is a strong probability that the defendant would be found
guilty of the charge to which he pleaded guilty.” Id. at 13 (quoting State v. Theis ,
742 N.W.2d 643, 649 (Minn. 2007)). A sufficient factual basis is composed of facts “from
which the defendant’s guilt of the crime charged can be reasonably inferred.” Nelson,
880 N.W.2d at 861 (quotation omitted).
Backen’s plea is supported by an adequate factual basis. Although Backen could
not remember digitally penetrating the vagina of child 2, he believed there was a substantial
likelihood that he would be convicted based on his review of the available evidence that
could be used against him, including police reports and a summary from the child advocacy
center that contained statements made by child 2 describing the events of which he was
accused. Backen also asked the district court to take judicial notice of the facts alleged in
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the complaint to supplement his plea colloquy. 2 The complaint alleged that Backen first
touched child 2 when she was 11 or 12 years old, that Backen inserted a finger in her
vagina, and that he had repeated this act during every “incident.” These facts, in the context
of a Norgaard plea, provide an adequate factual basis to establish that Backen engaged in
the sexual penetration of a child in violation of Minn. Stat. § 609.342, subd. 1(g) (2016).
Backen argues the use of leading questions by his attorney to elicit this testimony
was improper and invalidates the plea. But Backen cites to no authority requiring us to
allow plea withdrawal after the factual basis of a Norgaard plea was established using
primarily leading questions, despite the practice being disfavored. See Nelson, 880 N.W.2d
at 860 (explaining that the Minnesota Supreme Court has “repeatedly discouraged the use
of leading questions to establish a factual basis” but that the use of leading questions does
not automatically invalidate a guilty plea). We also note that the district court
independently questioned Backen about his motivations for pleading guilty, the strength of
the state’s evidence, and that he did not maintain his innocence despite not remembering
the events to which he was pleading guilty. We encourage this type of questioning from
the district court that allows a defenda nt to state, in his own words, the reasons why they
have decided to plead guilty. Ecker, 524 N.W.2d at 717.

2 While this method of establishing a factual basis may not be “typical,” it is sometimes
necessary in the context of a Norgaard plea. See Rosendahl v. State, 955 N.W.2d 294, 301
(Minn. App. 2021) (citing Ecker, 524 N.W.2d at 716).
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On this record, we conclude that Backen’s Norgaard plea was supported by an
adequate factual basis and his counsel’s use of leading questions to establish this factual
basis does not otherwise warrant reversal to allow Backen to withdraw his pleas.
Affirmed.