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This opinion is nonprecedential except as provided by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
A22-1338

State of Minnesota,
Respondent,

vs.

Emilie Rae Hewitt,
Appellant.

Filed August 7, 2023
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-20-4596

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

Mary F. Moriarty, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Andrew J. Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Reilly, Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
JESSON, Judge
Appellant Emilie Rae Hewitt pleaded guilty to felony driving while impaired after
she crashed her car into a highway guardrail on a Wednesday morning. She now seeks to
withdraw her guilty plea, claiming it is invalid because she cannot recall the events that
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form the basis of her plea and her counsel used leading questions during her plea hearing.
Because Hewitt submitted a valid plea and the use of leading questions is only disfavored—
not prohibited—we affirm her conviction.
FACTS
On February 19, 2020, around 11:20 a.m., state patrol troopers responded to the
scene of a one-vehicle crash in Brooklyn Center and spoke with the driver, later identified
as Hewitt. After troopers noticed an “overwhelming odor of alcohol” coming from Hewitt,
her slurred speech, and her bloodshot eyes, Hewitt submitted to a preliminary breath test .
The test registered an alcohol concentration of 0.239. Respondent State of Minnesota
charged Hewitt with felony driving while impaired because Hewitt had three qualified prior
impaired-driving incidents within ten years of the accident.1
In April 2022, Hewitt pleaded guilty to the sole charge. At the plea hearing, she
provided (as relevant here) the following factual basis:
HEWITT’S COUNSEL: . . . were you approached as your car
sat up against the median on Highway 100 near Brooklyn
Boulevard? I know you don’t remember it specifically, but
having gone over the discovery with me, you’re satisfied that
that person that the police interacted with, the state police, that
day was you?

HEWITT: Yes.

HEWITT’S COUNSEL: Okay. And as we’ve seen, you told
them that you had been cut off – that somebody had cut you off
in traffic and that’s what caused you to wreck the vehicle into
the – into the guardrail that serves as the median on that stretch
of highway; right?

1 This offense violates Minnesota Statutes section 169A.20, subdivision 1(1) (2018).
3
HEWITT: Yes.

HEWITT’S COUNSEL: All right. You also told them that
your last drink was at 4:00 in the morning, and that you had –
I guess, rum was – well, rum and coke, let’s just put it that way;
right?

HEWITT: Yes. I –

HEWITT’S COUNSEL: All right.

HEWITT: – don’t –

HEWITT’S COUNSEL: And I know you don’t remember this
and we’ve had go [sic] through it, but you agree, having seen
the discovery, that that – that that is you and that those were
the words that were said; right?

HEWITT: Yes.

. . . .

HEWITT’S COUNSEL: All right. There’s really two things
that have to be present for there to be a DWI offense. One, you
have to be in physical control of a motor vehicle, and, two, you
have to be under the influence of alcohol. Would you agree
that both those things were true on February 19th of 2020 in
that – in that little car accident out there on Highway 100?

HEWITT: Yes.

(Emphasis added.) Hewitt then admitted to the three qualified prior impaired-driving
incidents within ten years of the accident. The district court accepted Hewitt’s guilty plea
and sentenced her to 57 months’ imprisonment.
Hewitt appeals.
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DECISION
Hewitt alleges that her guilty plea was invalid because she did not provide an
accurate factual basis to support her plea given that she could not remember her conduct.
Hewitt further contends that the factual basis was not proper because her counsel used
leading questions. We address each argument in turn.
Hewitt’s plea satisfies the requirements of a Norgaard plea.
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). And a valid guilty plea is one that is
accurate, voluntary, and intelligent. Raleigh, 778 N.W.2d at 94. The burden is on the
appellant to prove that a plea was not accurate, voluntary, or intelligent. Barrow,
862 N.W.2d at 689. “Assessing the validity of a plea presents a question of law that we
review de novo.” Raleigh, 778 N.W.2d at 94.
Hewitt only challenges the accuracy of her plea. An accurate guilty plea requires a
factual basis “showing that the defendant’s conduct meets all elements of the offense” to
which they are pleading guilty. State v. Jones, 921 N.W.2d 774, 779 (Minn. App. 2018),
rev. denied (Minn. Feb. 27, 2019). Hewitt contends that her guilty plea was inaccurate
because she “could not provide a single detail about her conduct relating to the alleged
offense from memory.” In response, the state argues that Hewitt entered a valid Norgaard
plea. See State ex rel. Norgaard v. Tahash, 110 N.W.2d 867, 872 (Minn. 1961) (allowing
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a defendant to plead guilty even though they claim loss of memory regarding the
circumstances of the offense).
When a defendant claims a loss of memory, through amnesia or intoxication,
regarding the circumstances of the offense, they may plea d guilty via a Norgaard plea if
the record establishes “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 (Minn. 1994). The validity of a
Norgaard plea, a legal issue, is reviewed de novo. See Williams v. State, 760 N.W.2d 8,
12 (Minn. App. 2009), rev. denied (Minn. Apr. 21, 2009).
Here, Hewitt gave a proper factual basis for a Norgaard plea because she testified
that she reasonably believed that the state had sufficient evidence to obtain a conviction.
Ecker, 524 N.W.2d at 716. In response to her counsel’s questions, Hewitt conceded that it
was true that she was in physical control of a motor vehicle while under the influence of
alcohol. Truth is a higher bar than the beyond-a-reasonable-doubt standard that the state
would have had to meet to convict Hewitt of the charge she pleaded guilty to. See Williams,
760 N.W.2d at 13. Because Hewitt gave a proper factual basis for a Norgaard plea, her
guilty plea is accurate, and therefore valid.
2

2 At oral argument, the state submitted that there is a second way for a Norgaard plea to be
valid: that the evidence against the defendant is sufficient to persuade the defendant and
his or her counsel that the defendant is guilty. Ecker, 524 N.W.2d at 716. But because we
find that Hewitt reasonably believed that she was likely to be convicted of the crime
charged, we need not reach this argument.
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Still, Hewitt contends that she did not enter a Norgaard plea because (1) “no party,
at any time, indicated that Hewitt was entering a Norgaard plea,” (2) the plea petition did
not mention a Norgaard plea, and (3) Hewitt did not admit that the evidence the state would
present would be sufficient to convict her of felony driving while intoxicated. But there
are no magic words that render a plea a Norgaard plea. And Hewitt has cited no caselaw
that shows that the steps she describes as missing are required for a valid Norgaard plea.
To further support her argument regarding the accuracy of her plea, Hewitt cites to
a nonprecedential case from this court, State v. Williams, No. A18-0289,
2019 WL 1430316, at *2-3 (Minn. App. Apr. 1, 2019). In Williams, we held that because
Williams testified that he did not remember his conduct, and because he did not
acknowledge on the record that the state’s evidence was sufficient to convict him, his plea
was not a Norgaard plea and was inaccurate. Id. But Williams is distinguishable because
Hewitt acknowledged in her testimony that the state’s evidence against her was true and
satisfied all the elements of the crime. Because Hewitt testified that she reasonably
believed that the state had sufficient evidence to obtain a conviction, she gave a valid
Norgaard plea.
Hewitt’s plea is accurate despite the use of leading questions.
Hewitt also contends that her plea was inaccurate because the factual basis was
established through leading questions. But while the use of leading questions to establish
a plea’s factual basis is disfavored, their use is not forbidden. E.g., Raleigh,
778 N.W.2d at 94-96 (concluding that the guilty plea was accurate and explaining that
although counsel used leading questions, “the factual basis for [the] plea [was] sufficient,
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despite its disfavored format”); see also Nelson v. State, 880 N.W.2d 852, 860
(Minn. 2016) (observing that the Minnesota Supreme Court has “never held that the use of
leading questions automatically invalidates a guilty plea”). And Hewitt cites no authority
requiring us to allow plea withdrawal after the factual basis of a plea was established using
primarily leading questions, despite the practice being disfavored. As a result, the use of
leading questions is not enough to render Hewitt’s plea invalid.
In sum, Hewitt has the burden on appeal to demonstrate that her plea was invalid,
Barrow, 862 N.W.2d at 689, and she has not done so. Because Hewitt did not remember
the incident but reasonably believed that the state had sufficient evidence to convict her,
she submitted an accurate and valid Norgaard plea. And because leading questions are
disfavored but not prohibited, their use to establish the factual basis of Hewitt’s plea does
not automatically invalidate her plea.
Affirmed.