Todd Deon Rolack, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A23-0136

Todd Deon Rolack, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 14, 2023
Affirmed
Bratvold, Judge

Dakota County District Court
File No. 19HA-CR-12-3304

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

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

Kathryn M. Keena, Dakota County Attorney, Heather D. Pipenhagen, Assistant County
Attorney, Hastings, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
In an appeal from the district court’s denial of his second petition for postconviction
relief, appellant challenges the validity of his guilty plea to fourth-degree criminal sexual
conduct. Appellant argues his guilty plea was inaccurate given intervening caselaw. We
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agree that the factual basis of appellant’s guilty plea does not establish that appellant knew
or had reason to know the victim was mentally incapacitated. But because appellant’s
plea-hearing testimony sufficiently establishes that appellant knew or had reason to know
the victim was physically helpless, an alternative means of committing the offense of
conviction, we affirm.
FACTS
In September 2012, respondent State of Minnesota charged appellant Todd Deon
Rolack with fourth-degree criminal sexual con duct in violation of Minn. Stat. § 609.345,
subd. 1(d) (2010). The complaint alleged that in February 2012, when Rolack was 20 years
old, he had sexual contact with an intoxicated 16-year -old girl, J.H., during a party at his
Burnsville residence. I n February 2013, Rolack pleaded guilty to fourth-degree criminal
sexual conduct. The district court accepted Rolack’s plea, convicted him, and imposed the
sentence recommended by the parties and the presentence-investigation (PSI) report: 48
months’ imprisonment stayed for ten years.
In December 2020, Rolack filed a pro se petition for postconviction relief,
contending that his guilty plea was invalid because of his “untreated severe mental illness.”
After an attorney began representing Rolack, a supplemental postconviction petition
argued that Rolack’s “untreated mental health interfered with his ability to understand the
consequences of his decisions or the court proceedings.” The state opposed relief. In April
2021, the district court denied Rolack’s petition, and in February 2022, this court affirmed.
Rolack v. State, No. A21-0752, 2022 WL 433440, at *4 (Minn. App. Feb. 14, 2022).
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In June 2022, Rolack filed a second petition for postconviction relief , arguing that
his guilty plea was “constitutionally inaccurate and must be withdrawn” based on an
intervening decision by the supreme court. Rolack relied on State v. Khalil, 956 N.W.2d
627 (Minn. 2021), which interpreted “mentally incapacitated” as used in the
criminal-sexual-conduct statutes. Rolack first argued that the supreme court in Khalil held
that a voluntarily intoxicated person is not “mentally incapacitated .” Second, Rolack
contended that his guilty plea was “inaccurate because J.H., the complainant, was
voluntarily intoxicated at the time of the alleged incident,” and thus, “Rolack did not
commit fourth-degree criminal sexual conduct against a mentally incapacitated person.”
The state opposed relief, contending that Rolack’s petition was untimely and that his “plea
was accurate, voluntary, and intelligent.”
In December 2022, the district court denied Rolack’s second petition for
postconviction relief. The district court first determined that Rolack’s petition was timely
because “he filed his petition based on the new rule in Khalil within two years of the date
the opinion was issued.” Next, the district court agreed with Rolack that “applying Khalil’s
holding to [Rolack’s] case, the facts do not establish that J.H. was mentally incapacitated
because there is no evidence that she consumed the alcohol involuntarily.”
Still, the district court determined that Rolack’s “plea was accurate” based on its
conclusion that Rolack “admitted sufficient facts [during the plea hearing] to support one
of the alternative methods of committing” fourth-degree criminal sexual conduct. The
district court determined that Rolack’s plea- hearing testimony established that he knew
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J.H. “was physically helpless because she was not able to consent to the sexual conduct or
was unable to communicate her nonconsent due to intoxication.”
Rolack appeals.
DECISION
When a defendant seeks to withdraw a guilty plea after sentencing, “ the motion to
withdraw the plea must be raised in a petition for postconviction relief.” James v. State,
699 N.W.2d 723, 727 (Minn. 2005). Appellate courts review a denial of postconviction
relief for an abuse of discretion. Crow v. State, 923 N.W.2d 2, 9 (Minn. 2019). “ A
postconviction court abuses its discretion when it has exercised its discretion in an arbitrary
or capricious manner, based its ruling on an erroneous view of the law, or made clearly
erroneous factual findings.” Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017)
(quotation omitted).
“A defendant has no absolute right to withdraw a guilty plea after entering it.” State
v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). But “[a] defendant may withdraw a guilty
plea if it is ‘necessary to correct a manifest injustice.’” State v. Boecker, 893 N.W.2d 348,
350 (Minn. 2017) (quoting Minn. R. Crim. P. 15.05, subd. 1). “A manifest injustice exists
if a guilty plea is not valid,” and “[t]o be constitutionally valid, a guilty plea must be
accurate, voluntary, and intelligent.” Raleigh, 778 N.W.2d at 94. Appellate courts review
the validity of a guilty plea de novo. State v. McReynolds, 973 N.W.2d 314, 318 (Minn.
2022). The defendant bears the burden of showing the plea is invalid. Id.
At the plea hearing, Rolack pleaded guilty to criminal sexual conduct in the fourth
degree. The statute under which Rolack was charged and convicted provides that “[a]
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person who engages in sexual contact with another person is guilty of criminal sexual
conduct in the fourth degree if . . . the actor knows or has reason to know that the
complainant is mentally impaired, mentally incapacitated, or physically helpless.” Minn.
Stat. § 609.345, subd. 1(d).
On appeal, Rolack makes two arguments. First, he asserts that his guilty plea was
inaccurate because in Khalil, which was decided after Rolack was sentenced, the supreme
court reversed a criminal-sexual-conduct conviction based on an erroneous jury
instruction. The supreme court concluded that “mentally incapacitated,” as defined in
Minn. Stat. § 609.341, subd. 7 (2020),1 does not include a victim’s voluntary intoxication.
Rolack contends that the record at his plea hearing shows that he knew J.H. was voluntarily
intoxicated. Second, Rolack argues that the district court erred by denying his second
postconviction petition and reasoning that Rolack’s testimony established he knew the
victim was physically helpless. We address these arguments in turn.
I. Rolack’s guilty plea lacked a factual basis to establish that Rolack knew or had
reason to know that J.H. was mentally incapacitated.

“For a guilty plea to be accurate, a proper factual basis must be established.” State
v. Mikulak, 903 N.W.2d 600, 603 (Minn. 2017). “The accuracy requirement protects the
defendant from pleading guilty to a charge more serious than he could have been convicted
of at trial.” Id. “It is well established that before a plea of guilty can be accepted, the trial

1 The supreme court in Khalil interpreted “mentally incapacitated” using the same statutory
definition that was in effect at the time of Rolack’s offense.
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judge must make certain that facts exist from which the defendant’s guilt of the crime
charged can be reasonably inferred.” Nelson v. State, 880 N.W.2d 852, 861 (Minn. 2016).
“Mentally incapacitated” is defined as “a person under the influence of alcohol, a
narcotic, anesthetic, or any other substance, administered to that person without the
person’s agreement, [who] lacks the judgment to give a reasoned consent to sexual contact
or sexual penetration.” Minn. Stat. § 609.341, subd. 7 (2010) (emphasis added). In Khalil,
the supreme court concluded that “a person under the influence of alcohol is not mentally
incapacitated unless the alcohol was administered to the person under its influence without
that person’s agreement.” 956 N.W.2d at 642. At the plea hearing, Rolack agreed that on
the day of the incident, he did not provide alcohol to J.H. Instead, Rolack testified that J.H.
“brought [her] own alcohol” and “consumed quite a bit of alcohol.”
The district court agreed with Rolack that the plea-hearing testimony failed to prove
he knew or had reason to know that J.H. was mentally incapacitated because no evidence
showed that “she consumed the alcohol involuntarily.” In its brief to this court, the state
likewise agrees that Rolack’s “plea did not establish that the victim was mentally
incapacitated.” We also agree the record shows that Rolack knew J.H. was voluntarily
intoxicated. Thus, the district court did not err in determining that the facts of Rolack’s
guilty plea “do not establish that J.H. was mentally incapacitated.”
II. The district court did not err when it denied Rolack’s second postconviction
petition after determining that Rolack’s plea-hearing testimony established
that he knew or had reason to know J.H. was physically helpless.

In denying Rolack’s second postconviction petition, the district court stated that the
factual basis for Rolack’s guilty plea supported “a finding that [J.H.] in this case was
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physically helpless.” Relying on State v. Ruel, No. A15- 0152, 2016 WL 363407, at *3
(Minn. App. Feb. 1, 2016), rev. denied (Minn. Apr. 19, 2016), the district court determined
that there are three “alternative methods” of committing fourth- degree criminal sexual
conduct: mental incapacitation, physical helplessness, or mental impairment. See Minn.
Stat. § 609.345, subd. 1(d). Based on this reasoning, the district court concluded that
Rolack’s plea was accurate because the factual basis supported “one of the alternative
methods,” specifically that J.H. was physically helpless.
Rolack argues that his guilty plea is invalid because (1) his testimony did not
establish a factual basis for his knowledge of J.H.’s physical helplessness; (2) mental
incapacitation and physical helplessness are separate elements of separate crimes; and
(3) his plea was unintelligent because the proceedings made the elements of the charged
offense a “moving target.” We address these arguments in turn.
First, Rolack contends that he pleaded guilty to fourth-degree criminal sexual
conduct involving a mentally incapacitated victim, and the factual basis “extensively
discussed [J.H.]’s intoxication.” He argues that “the parties were trying to establish a
factual basis” for his knowledge of J.H.’s mental incapacitation and that “the parties and
the court thought [J.H.] was mentally [incapacitated] because she was intoxicated.” The
state argues that Rolack “did not specifically plead under any one clause” of Minn. Stat.
§ 609.345, subd. 1(d), and Rolack “pled guilty and admitted to facts that supported the
conviction based on physical helplessness.”
We agree with the state. The record does not support Rolack’s claim that he pleaded
exclusively to fourth-degree criminal sexual conduct involving a mentally incapacitated
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victim. The complaint charged Rolack with fourth-degree criminal sexual conduct and
asserted Rolack “knew or had reason to know that the complainant [was] mentally
impaired, mentally incapacitated, or physically helpless.” Rolack’s plea petition listed the
charged crime as “criminal sexual conduct fourth degree,” and at the plea hearing, he
pleaded “[g]uilty” to “criminal sexual conduct in the fourth degree.”
In its postconviction decision, the district court found that Rolack’s plea-hearing
testimony established that he “engaged in oral sex with J.H. knowing that she was
physically helpless because she was not able to consent to the sexual conduct or was unable
to communicate her nonconsent due to her intoxication.” Physically helpless means “a
person is (a) asleep or not conscious, (b) unable to withhold consent or to withdraw consent
because of a physical condition, or (c) unable to communicate nonconsent and the
condition is known or reasonably should have been known to the actor.” Minn. Stat.
§ 609.341, subd. 9 (2010).
Caselaw helps our analysis of Rolack’s testimony. In State v. Berrios, appellant
Berrios challenged the sufficiency of the evidence supporting his conviction for
third-degree criminal sexual conduct under Minn. Stat. § 609.344, subd. 1(d) (2008).
788 N.W.2d 135, 137, 141 (Minn. App. 2010), rev. denied (Minn. Nov. 16, 2010). This
court determined that there was “ample evidence” for the jury to conclude Berrios “knew
or had reason to know” the victim “had been rendered physically helpless by her alcohol
consumption” when the victim was “falling down drunk, vomited several times, lost
consciousness more than once, and could not walk without assistance.” Id. at 143; cf. State
v. Blevins, 757 N.W.2d 698, 701 (Minn. App. 2008) (concluding that the evidence was
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insufficient to sustain a conviction for criminal sexual conduct involving a physically
helpless victim because the victim “expressed [to the defendant] that she did not consent
to the sexual encounter”).
The factual basis for Rolack’s guilty plea shows that Rolack knew or had reason to
know J.H., like the victim in Berrios, was physically helpless. At the plea hearing, Rolack
agreed that (1) “J.H. had consumed quite a bit of alcohol”; (2) “at one point [J.H.] was kind
of blanked out, she was kind of asleep” because “she was under the influence of alcohol”;
(3) a friend of J.H.’s “laid her down on the bed because of her intoxicated state”; (4) J.H.
was lying on the bed “fully clothed,” and Rolack “pulled down J.H.’s pants and
undergarments”; (5) “J.H. did not give [Rolack] permission to . . . engage in any sexual
contact with her”; (6) Rolack “knew” that J.H. “was incapacitated and really mentally not
able to acquiesce or consent to any type of sexual contact” when he “perform[ed] oral sex
on her”; and (7) J.H.’s “physical state . . . caused her to be helpless while [Rolack was]
present in [the] room with her.” Based on these facts, the district court did not err by
concluding that Rolack knew J.H. was physically helpless.
Second, Rolack relies on Khalil to argue that physical helplessness and me ntal
incapacitation are “individual elements of separate crimes” and not alternative means of
committing a single element of fourth-degree criminal sexual conduct. Rolack quotes the
supreme court’s statement in Khalil that “it is impossible to know whether the jury relied
on the mental incapacitation or physical helplessness elements of Minn. Stat. § 609.344,
subd. 1(d), in arriving at its verdict.” 956 N.W.2d at 643 (emphasis added). Rolack asserts
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that because mental incapacitation and physical helplessness are “elements of different
crimes, one cannot after the fact be substituted for the other.”
We are no t persuaded based on the context of the supreme court’s reasoning. In
Khalil, the defendant appealed from his conviction for third-degree criminal sexual conduct
under Minn. Stat. § 609.344, subd. 1(d) (2016), and “challenged the validity of the jury
instructions,” arguing that the district court erroneously instructed the jury on the
defendant’s knowledge of the victim’s mental incapacitation because the instructions
included voluntary intoxication. Id. at 631. The supreme court agreed the instruction on
mental incapacitation was erroneous. Id. at 643. The supreme court determined the error
warranted a new trial, reasoning that it was impossible to tell whether the jury’s guilty
verdict was based on the defendant’s knowledge of “the mental incapacitation or physical
helplessness elements” because the instruction included both alternatives. Id.
Rolack challenges the validity of the factual basis for his guilty plea, while the
appellant in Khalil challenged jury instructions. Thus, while Khalil guides our analysis of
what is sufficient evidence of mental incapacitation, it does not guide our analysis of
whether Rolack’s factual basis is accurate as to physical helplessness.
Even if we accept Rolack’s argument that mental incapacitation and physical
helplessness are separate elements and that he only pleaded guilty to sexual contact with a
mentally incapacitated victim, we would still determine his plea was accurate. A guilty
plea is accurate if the defendant establishes a proper factual basis such that they do not
plead guilty to a more serious charge than they could be convicted of at trial. Mikulak,
903 N.W.2d at 603. As detailed above, Rolack ’s testimony at the plea hearing established
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that Rolack knew or had reason to know J.H. was physically helpless when he engaged in
oral sex with her. Fourth-degree criminal sexual conduct with a physically helpless victim
is not a more serious crime than fourth-degree criminal sexual conduct involving a mentally
incapacitated victim. Thus, Rolack’s plea is accurate.
Third, Rolack argues, in the alternative, that the plea agreement “called for him to
plead guilty to fourth- degree criminal sexual conduct —mentally [incapacitated],” and so
“changing” the plea and conviction to an offense based on physical helplessness made the
plea “a moving target and rendered it unintelligent.” An intelligent guilty plea is “a
knowing and intelligent choice [among] the alternative courses of action available.” Dikken
v. State, 896 N.W.2d 873, 877 (Minn. 2017). “The intelligence requirement ensures that a
defendant understands the charges against him, the rights he is waiving, and the
consequences of his plea.” Nelson, 880 N.W.2d at 858 (quotation omitted).
Rolack cites State v. Bertsch, in which the supreme court determined a guilty plea
was invalid and unintelligent because the state amended the date of one of the charged
offenses after the district court accepted the defendant’s guilty plea. 707 N.W.2d 660,
664-65 (Minn. 2006). The supreme court described the charges for the plea as “a moving
target.” Id. at 665. Here, the complaint notified Rolack that the charge was fourth-degree
criminal sexual conduct involving a “mentally impaired, mentally incapacitated, or
physically helpless” victim, he pleaded guilty to “criminal sexual conduct in the fourth
degree,” and the charge did not change. Thus, Rolack’s argument that his guilty plea was
unintelligent because the charges were a moving target is unavailing.
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In sum, Rolack pleaded guilty to fourth-degree criminal sexual conduct and testified
to facts sufficient to show he knew or had reason to know the victim was physically
helpless. The district court therefore did not err in denying Rolack’s second postconviction
petition.
Affirmed.