This opinion is nonprecedential except as provided by Minn.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 A23-0271
State of Minnesota, Respondent,
vs.
Henry Lee Brown, Appellant.
Filed March 25, 2024 Affirmed Worke, Judge
Hennepin County District Court File No. 27-CR-21-4627
Ellison, Attorney General, St. Paul, Minnesota; and
Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney, Emily Toms, Certified Student Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Worke, Presiding Judge; Gaïtas, Judge; and Kirk,
Judge. *
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. NONPRECEDENTIAL OPINION
WORKE, Judge
Appellant challenges his conviction for criminal vehicular homicide, arguing that
(1) the district court abused its discretion by denying his presentencing motion to withdraw
his guilty plea, (2) his guilty plea was inaccurate, and (3) the district court abused its
discretion by denying him a sentencing departure. We affirm.
FACTS
In March 2021, respondent State of Minnesota charged appellant Henry Lee Brown
with two counts of criminal vehicular homicide: operating a vehicle negligently—under
the influence of alcohol and leaving the scene after causing a collision. See Minn. Stat.
§ 609.2112, subds. 1(a)(2)(i), 1(a)(7) (2020).
At a hearing in June 2022, the state indicated that it consistently offered Brown an
agreement to “plead guilty to one of the two counts of the [c]omplaint” and receive a
58-month prison sentence. With Brown’s two criminal-history points, the presumptive
sentence was 68 months in prison (58-81-months range). Defense counsel stated that the
parties also discussed that, if Brown pleaded guilty, the state would not charge Brown’s
girlfriend with a criminal offense related to the collision. Brown declined the offer.
Jury selection began. But just days later, Brown agreed to plead guilty to “criminal
vehicular operation—leaving the scene—death.” Brown agreed that he understood the plea
agreement, the rights he was waiving by pleading guilty, that a jury was selected and the
parties were prepared to proceed with trial, and the possible sentence he could receive.
2 As stated by the district court, Brown pleaded guilty to “[c]ount 2, criminal
vehicular homicide, driver who causes a collision leaving the scene, a violation of [Minn.
Stat. §] 609.2112.1(a)(7).” In establishing the factual basis to support the plea, Brown
agreed that “on March 4th, 2021, [he] w[as] driving a motor vehicle” and his girlfriend was
a passenger. As he was “nearing [his] home address, [he] suffered a medical incident and
started convulsing.” 1 Although he did not remember, he agreed that, based on his
girlfriend’s statement, “[she] reached over near the steering wheel, may have honked or
tried to grab it, but . . . the vehicle swerved and . . . a pedestrian, was crossing the street at
the same time.”
Brown agreed that his “foot was on the gas pedal,” he was “in the driver’s seat and
. . . [he] caused the collision with [the pedestrian].” After the collision, Brown “continued
driving the vehicle . . . home,” which was approximately four houses away from the
collision. At home, Brown’s girlfriend pointed out a cracked windshield. His girlfriend
then walked to the scene. When she returned home, she told Brown that the pedestrian had
died. Brown never made “any effort to contact the police or to return to the scene and
report that [he] w[as] the driver.” Officers arrested Brown the next day, approximately 15
hours after the collision.
1 Brown claimed to have no recollection of the incident and based his statement that he was convulsing on his girlfriend’s account of the incident. The record does not show that Brown suffers from a medical condition that would cause him to have convulsions. The district court noted that it is unclear whether Brown suffered a seizure because Brown left the scene and failed to report the collision, which prevented a full investigation into the collision.
3 The district court asked if Brown was entering a Norgaard plea 2 because Brown
stated that he did not remember the collision. Brown’s attorney replied: “I don’t know that
it necessarily is [a Norgaard plea] because he does acknowledge being aware of his duty
to report the accident as soon as possible. So [I don’t think it matters] whether . . . he
actually was aware of a collision at the time.”
Before sentencing, Brown moved to withdraw his guilty plea, claiming that he “had
not pleaded guilty to criminal vehicular homicide . . . he had only pleaded guilty to leaving
the scene of an accident.” Brown argued that his plea was not intelligent because he was
under “emotional distress that made him unable to meaningfully participate in his plea
hearing,” and he decided to plead guilty “after a very short discussion with [his attorney]
while a jury was waiting in the hallway.” Brown also argued that, although he was driving
the vehicle, “he is not guilty . . . because he had a seizure[,] . . . was in shock and unable to
think clearly after the accident[,] . . . did not understand that it was his obligation to contact
law enforcement and thought that his [girlfriend] did contact law enforcement within a
reasonable time after the accident.”
Following a hearing, the district court denied Brown’s motion, stating:
I was . . . here for the plea and had an opportunity to see the mood and demeanor of everyone in the courtroom [when] that plea was taken. And, of course, all of you know that I take a lot of pleas . . . . [S]ome of you may have even been present when there are pleas that I stop and interrupt and ask the parties to either reconvene or refuse to take them that day, because I
2 When a defendant enters a Norgaard plea, he asserts an absence of memory on an essential element 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. See State ex rel. Norgaard v. Tahash, 110 N.W.2d 867, 872 (Minn. 1961).
4 am of the impression that the accused is in no state of mind where he can make a meaningful decision about what he’s going to do that day. [I] didn’t have that impression when Mr. Brown was putting in his plea.
The district court also noted that “Brown has been in and out of this system for decades,
[and] has made difficult decisions to enter pleas or . . . go to trial many times in the past.
He understands what’s at stake.” The district court concluded that it could not find that
Brown’s guilty plea was unintelligent and involuntary based on the entirety of Brown’s
history, the district court’s observations when the plea was taken, and the plea petition and
associated colloquy.
Brown moved for a sentencing departure. The district court denied the motion,
sentencing Brown to 58 months in prison. In denying a dispositional departure, the district
court stated:
It’s not just that you have a long criminal history . . . because . . . a lot of it is really, really old; going back to 1984 . . . . But what I’m really looking at is the number of times that you ended up in prison, not for what you did originally, but for how you were able to proceed on probation. And, by my count, there are . . . at least a dozen, and probably more times where you end up getting revoked. And that kind of a track record under those many years, I can’t get around that. I can’t make a finding that you’re particularly amenable to probation, because time after time after time you violated it.
The district court denied a durational departure because it could not determine that the
offense was less onerous than a typical criminal-vehicular-homicide offense because
Brown’s “act of purposefully not coming back denies us the opportunity to objectively
know.” The district court stated: “I don’t know if you had a seizure, I don’t know if it was
5 a seizure induced by alcohol, and I can’t know because of the nature of this crime.” This
appeal followed.
DECISION
Plea withdrawal
Brown argues that the district court abused its discretion by denying his presentence
motion to withdraw his guilty plea. While a defendant has no absolute right to withdraw a
guilty plea after entering it, Dikken v. State, 896 N.W.2d 873, 876 (Minn. 2017), a district
court may allow withdrawal before sentencing when it is “fair and just” to do so. Minn. R.
Crim. P. 15.05, subd. 2. And a district court must allow a defendant to withdraw a guilty
plea at any time when “necessary to correct a manifest injustice.” Id., subd. 1.
The fair-and-just standard is “less demanding than the manifest injustice standard,”
but a district court will not permit plea withdrawal for just any reason. State v. Theis, 742
N.W.2d 643, 646 (Minn. 2007). In deciding whether plea withdrawal is fair and just, a
district court considers: “(1) the reasons a defendant advances to support withdrawal and
(2) prejudice granting the motion would cause the [s]tate given reliance on the plea.” State
v. Raleigh, 778 N.W.2d 90, 97 (Minn. 2010). The defendant must provide a fair-and-just
reason for plea withdrawal and the state must show that withdrawal would cause prejudice.
Id. We review a district court’s denial of a plea-withdrawal motion under the fair-and-just
standard for an abuse of discretion, reversing only in the “rare case.” Kim v. State, 434
N.W.2d 263, 266 (Minn. 1989); Raleigh, 778 N.W.2d at 97.
To correct a manifest injustice, a district court must allow a defendant to withdraw
a plea that is invalid—a plea that is not voluntary, intelligent, and accurate. Taylor v. State,
6 887 N.W.2d 821, 823 (Minn. 2016); Raleigh, 778 N.W.2d at 93. “A defendant bears the
burden of showing his plea was invalid.” Raleigh, 778 N.W.2d at 94. We review de novo
whether the defendant has met the manifest-injustice standard. Id.
Voluntary and intelligent
Brown argues that his guilty plea was not voluntary or intelligent. The voluntary
requirement ensures that the defendant is not pleading guilty due to improper pressure or
coercion. Id. at 96. A guilty plea may not result from “mental coercion overbearing the
will of the defendant.” State v. Ecker, 524 N.W.2d 712, 719 (Minn. 1994) (quotation
omitted). The intelligent requirement ensures that the defendant understands the charges,
his rights, and the consequences of pleading guilty. Carey v. State, 765 N.W.2d 396, 400
(Minn. App. 2009), rev. denied (Minn. Aug. 11, 2009).
Brown claims that his guilty plea was not voluntary or intelligent because he thought
he was facing a leaving-the-scene-of-an-accident conviction and not a criminal-vehicular-
homicide conviction. He claims that the parties used varying terms to refer to the offense,
which made it difficult for him to understand, especially when he was under emotional
distress.
In addressing Brown’s claim that his plea was not voluntary because of emotional
distress, the district court stated that it intervenes when under the impression that a
defendant “is in no state of mind where he can make a meaningful decision.” The district
court “didn’t have that impression when Mr. Brown was putting in his plea.” The district
court agreed that it was a stressful situation but did not find that Brown was under so much
emotional distress that he did not understand what he was doing.
7 Brown also claims that his plea was not voluntary because he did not have much
time to talk to his attorney and felt pressure because the jury was waiting. But Brown was
charged in March 2021. Brown’s jury trial was to begin over a year later in June 2022.
Brown was aware of the charges for more than one year. And he was aware of the plea
offer for much of that time because the state noted that it had consistently presented the
offer to Brown.
Brown agreed to plead guilty after his girlfriend agreed to testify and the state
indicated that it would not charge her with any offense related to the collision. At the time,
Brown agreed that he had enough time to discuss the case and the agreement with his
attorney and he submitted a plea petition indicating as much. The district court was careful
to ensure that Brown understood the plea petition:
Mr. Brown, you’re telling me . . . by having [your attorney] deliver that petition to my clerk, you’re essentially telling me, ‘I know everything that’s in this petition, we’ve gone over it,’ by ‘we’ I mean you and your lawyers have gone through it line-by-line, if you had any questions, you’ve had enough time to talk about it, and you understand what’s in there, and importantly, the valuable trial rights you’re waiving; is that right?
Brown replied: “Yes, sir.” The record supports the district court’s determination that
Brown was not so emotionally distressed or pressured to enable him to enter his plea
voluntarily.
Brown claims that his guilty plea was not intelligent because he believed that he
was facing charges for “leaving the scene of an accident” and not for “criminal vehicular
8 homicide.” But Brown was never charged with leaving the scene of an accident and the
plea hearing and petition show that Brown pleaded guilty to criminal vehicular homicide.
In the complaint, Brown was charged with two counts of criminal vehicular
homicide: operating a vehicle negligently—under the influence of alcohol and leaving the
scene after causing a collision. See Minn. Stat. § 609.2112, subds. 1(a)(2)(i), 1(a)(7). The
complaint was never amended, and Brown indicated that he understood the charges in the
complaint.
At the beginning of trial, the prosecutor stated that it consistently offered Brown an
agreement to “plead guilty to one of the two counts of the [c]omplaint . . . for 58 months
[in prison].” (Emphasis added.) And at the plea hearing, the prosecutor stated: “The [s]tate
is agreeing to cap its request at prison time to 58 months . . . if Mr. Brown pleads guilty to
one of the two counts in the complaint.” (Emphasis added.) Again, the two charges in the
complaint are criminal vehicular homicide; the complaint was never amended.
The plea petition includes the language “criminal vehicular operation—leaving the
scene—death,” and the statute violated—Minn. Stat. § 609.2112, subd. 1(a)(7). The
petition refers to the charge twice, using nearly identical wording and the word “death.”
At the plea hearing, Brown pleaded guilty to the “charge in [c]ount 2, criminal vehicular
homicide, driver who causes a collision leaving the scene, a violation of [Minn. Stat. §]
609.2112.1(a)(7).” The charge in the complaint was identified, the word “homicide” was
used, and the criminal-vehicular-homicide statute was referenced. The statute for leaving
the scene of an accident, Minn. Stat. § 169.09, subd. 1 (2020), is never referenced in the
plea petition or at the plea hearing.
9 A guilty plea is intelligent when the defendant understands the charges, his rights,
and the consequences of the plea. See Carey, 765 N.W.2d at 400. Brown agreed that he
understood the charges in the complaint, and the record shows that references to the charges
included causing “homicide” or “death.” Brown does not claim to have misunderstood his
rights. Finally, the record shows that the parties discussed the 58-month prison sentence,
the bottom-of-the-box sentence that Brown would receive if he pleaded guilty to one of the
two counts in the complaint and the district court denied his motion for a departure. Brown
does not claim that he misunderstood this sentence.
The record supports the district court’s decision to deny Brown’s presentence
plea-withdrawal motion. First, under the fair-and-just standard, Brown failed to provide a
fair-and-just reason for plea withdrawal. Second, Brown failed to show that a manifest
injustice would result if he were not allowed to withdraw his plea because he failed to show
that his plea was involuntary or unintelligent.
Accuracy of guilty plea
Brown did not challenge the accuracy of his guilty plea in district court. Brown
argues that we should permit him to withdraw his guilty plea because the factual basis does
not show that he was operating a motor vehicle at the time of the collision because he was
having a seizure.
The accuracy requirement of a valid guilty plea focuses on the factual basis
supporting the plea and ensures that the defendant does not plead guilty to a greater offense
than what he could be convicted of after a trial. Theis, 742 N.W.2d at 649. A guilty plea
is accurate when there are “sufficient facts on the record to support a conclusion that [the]
10 defendant’s conduct falls within the charge to which he desires to plead guilty.” Kelsey v.
State, 214 N.W.2d 236, 237 (Minn. 1974).
Brown pleaded guilty to criminal vehicular homicide. To be an accurate plea,
Brown must have admitted that he (1) was operating a motor vehicle, (2) caused a collision,
(3) caused the death of a human being, and (4) left the scene of the collision. See Minn.
Stat. § 609.2112, subd. 1(a)(7). Brown claims that the factual basis does not establish the
first element of the offense—that he was volitionally “operating” the vehicle.
The statute does not require that Brown’s operation of the vehicle include a
volitional act. Brown stated that he “started convulsing” while he was “driving a motor
vehicle.” He also admitted that his “foot was on the gas pedal,” he was “in the driver’s
seat and . . . [he] caused the collision with [the pedestrian].” After the collision, Brown
admitted that he “continued driving the vehicle . . . home” and that he never contacted law
enforcement. Brown was driving, he knew that he caused a collision with a pedestrian, he
knew that the pedestrian died, and he knew that he left the scene and failed to contact law
enforcement. Brown’s plea was accurate.
Brown claims that because he was unaware of what occurred during the collision,
he could not have been operating the vehicle. But the district court asked if Brown was
entering a Norgaard plea and Brown’s attorney stated that it was not necessary that Brown
be aware of the collision when it occurred because Brown acknowledged “being aware of
his duty to report the accident as soon as possible.” Similarly, as the state argues, the act
constituting the crime is leaving the scene of the collision and failing to notify law
11 enforcement to enable law enforcement to investigate what occurred. This record shows
that Brown’s guilty plea was accurate and therefore valid.
Sentencing
Finally, Brown argues that the district court abused its discretion by denying his
sentencing-departure requests. Because a guidelines sentence is “presumed to be
appropriate,” a district court “must” impose a sentence that is within the presumptive range
unless there are “substantial, and compelling circumstances to support a departure.” Minn.
Sent’g Guidelines 1.B.13, 2.D.1 (Supp. 2021). “Substantial and compelling circumstances
are those demonstrating that the defendant’s conduct in the offense . . . was significantly
more or less serious than that typically involved in the commission of the crime in
question.” State v. Hicks, 864 N.W.2d 153, 157 (Minn. 2015) (quotations omitted). This
court reviews a district court’s denial of a departure for an abuse of discretion. State v.
Bertsch, 707 N.W.2d 660, 668 (Minn. 2006). Only in a “rare case” will a district court’s
imposition of a presumptive sentence be reversed. Id. (quotation omitted).
Dispositional departure
Brown argues that the district court should have granted a dispositional departure.
“A dispositional departure typically focuses on characteristics of the defendant that show
whether the defendant is particularly suitable for individualized treatment in a probationary
setting.” State v. Solberg, 882 N.W.2d 618, 623 (Minn. 2016) (quotation omitted). In
assessing particular amenability to probation, a district court considers “the defendant’s
age, his prior record, his remorse, his cooperation, his attitude while in court, and the
support of friends and/or family.” State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982); see also
12 State v. Soto, 855 N.W.2d 303, 308-09 (Minn. 2014) (stating that defendant must be
particularly amenable to probation, not merely amenable).
Brown claims that he was supervised during the pendency of the case and showed
his amenability. He also claims that these factors show that he is amenable to probation:
he is 56 years old, has an old criminal history, was cooperative and respectful, has family
support, and is remorseful. 3 The district court acknowledged that Brown’s criminal history
is old, but stated that Brown is not a “good risk on probation” because Brown failed to
show his success on probation by being revoked “at least a dozen” times.
In determining whether a dispositional departure is appropriate, the district court
must find the defendant “particularly” amenable to probation. Here, the district court,
relying on Brown’s history, stated: “I can’t make a finding that you’re particularly
amenable to probation, because time after time after time you violated it.” The district
court did not abuse its discretion by denying Brown’s request for a dispositional departure.
Durational departure
Brown also argues that the district court should have granted a durational departure
because the offense is less serious than the typical offense because he had a seizure. “A
durational departure must be based on factors that reflect the seriousness of the offense,
not the characteristics of the offender.” Solberg, 882 N.W.2d at 623 (emphasis omitted).
Downward durational departures are justified when a defendant’s conduct was
3 In a pro se supplemental brief, Brown reiterates the reasons he is amenable to probation.
13 “significantly less serious than that typically involved in the commission of the offense.”
Id. at 624 (quotation omitted).
Here, the district court stated that Brown’s “act of purposefully not coming back”
and reporting the accident prevents everyone from knowing whether the offense is less
serious than a typical criminal-vehicular-homicide offense. The district court stated: “I
don’t know if you had a seizure, I don’t know if it was a seizure induced by alcohol, and I
can’t know because of the nature of this crime. You didn’t come back and avail yourself
of the system.” The record supports the district court’s determination. The district court
did not abuse its discretion by denying Brown a sentencing departure.
Affirmed.