This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-1807
State of Minnesota, Respondent,
vs.
Larry Lee Hough, Appellant.
Filed May 23, 2016 Affirmed Larkin, Judge
Dakota County District Court File No. 19HA-CR-12-1520
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, Stacy St. George, Assistant County Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Hooten, Presiding Judge; Larkin, Judge; and Rodenberg,
Judge. UNPUBLISHED OPINION
LARKIN, Judge
Appellant challenges his conviction of second-degree criminal sexual conduct,
arguing that his Alford plea was invalid because it was based on an insufficient factual
basis and because he received ineffective assistance of counsel. We affirm.
FACTS
Respondent State of Minnesota charged appellant Larry Lee Hough with two counts
of second-degree criminal sexual conduct. The complaint alleged that Hough babysat a
kindergartner and, on more than one occasion, had the child “put lotion on his penis” in
exchange for food.
During jury selection, Hough entered an Alford plea to one count of second-degree
criminal sexual conduct. After Hough acknowledged waiver of his trial rights, his attorney
said, “And you also understand that besides the ten years of supervised release, for that
same ten-year period, you’re going to be required to register with local law enforcement
and the BCA?” Hough responded, “Yes.” Hough then said, “I guess I don’t really know
what to register means.” Hough had an off-the-record conversation with his attorney for
approximately one minute, after which the hearing resumed.
Hough provided a factual basis for his plea through a colloquy with his attorney as
follows:
Q: Mr. Hough . . . is it correct that for a period of time in the year 2007, you were in the City of Apple Valley in Dakota County? A: Yes.
2 Q: And for a period of time during 2007, you were staying at a residence with an individual whose initials are J.H. . . . . A: Yes. Q: —is that correct? A: Yes. .... Q: Okay. And at the time you were at this residence, J.H. was under the age of 13; is that correct? A: Yes. Q: And you were more than 36 months older than J.H. at the time; is that correct? A: Yes. Q: All right. And then you and I have gone over all of the police reports and the statements and everything that was done in terms of this investigation; is that correct? A: Yes. Q: Okay. So you’ve seen copies of J.H.’s statements to the child workers and . . . the police? A: Yes. Q: And you’ve seen—you’ve got a copy of the complaint? A: Yes. Q: Okay. So you factually know what J.H. is stating that you did? A: Yes. Q: Okay. And you would agree that based on the information contained in the police reports and the statements, if all that information was presented to a jury, whereas if J.H. was on the stand and repeated what she said to the child workers and to the police department, and if the other witnesses took the stand to say this is what J.H. said to them, and a jury heard all of that, you believe there’s a substantial likelihood that you would be convicted of this offense; is that correct? A: Yes.
After the colloquy, the district court stated: “[B]ased on your testimony here, I will
accept your plea of guilty to count II.”
Prior to sentencing, Hough discharged his attorney and moved to withdraw his plea,
arguing that the plea was involuntary and that his attorney improperly induced him to plead
guilty. The district court denied Hough’s motion. The state nonetheless asked to
3 supplement the record supporting the plea, and the district court allowed the state to file
the police reports that Hough referred to in his factual basis. Hough did not object.
The police reports contain a transcript of a child-protection worker’s interview of
J.H. During the interview, J.H. stated that Hough used to babysit her and her siblings when
she was in kindergarten. J.H. explained that her mother would make food before she left.
When J.H. asked Hough for something else to eat, Hough would make her put lotion on
his penis with her hands in exchange for food. J.H. said that this happened more than once.
The police reports also contain a transcript of a statement from E.G., who was in
jail with Hough for an unrelated matter. E.G. stated that Hough told him that when he
babysat, J.H. was always “the complainer” about what her mother made for her to eat.
Hough told E.G. that he found “a way to make her shut up.” Hough said that he had J.H.
“lotion my dick.” E.G. stated that when he asked Hough if he was serious, Hough said
“yeah,” but “it was only a couple times.”
The district court sentenced Hough to serve 120 months in prison and informed him
that he would have to register as a predatory offender. The state dismissed the remaining
count. Hough appealed to this court and requested a stay to pursue postconviction relief.
This court granted the request and remanded for postconviction proceedings.
Hough petitioned for postconviction relief, requesting withdrawal of his Alford plea.
He argued that his plea was inaccurate because it was based on an insufficient factual basis,
and that it was involuntary and unintelligent because he received ineffective assistance of
counsel. The postconviction court held a hearing and heard testimony from Hough and his
attorney. Following the hearing, the postconviction court concluded that Hough’s plea was
4 accurate, voluntary, and intelligent, and it denied his request for plea withdrawal. This
court reinstated Hough’s appeal.
DECISION
“When a defendant initially files a direct appeal and then moves for a stay to pursue
postconviction relief, [appellate courts] review the postconviction court’s decisions using
the same standard that we apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836
(Minn. 2012).
The district court must allow plea withdrawal at any time “upon a timely motion
and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest
injustice.” Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice exists if a guilty plea
was not valid. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). To be valid, a guilty
plea must be “accurate, voluntary and intelligent.” State v. Ecker, 524 N.W.2d 712, 716
(Minn. 1994). “A defendant bears the burden of showing his plea was invalid.” State v.
Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). The validity of a plea is a question of law that
we review de novo. Id.
I.
Hough contends that his “guilty plea is invalid as inaccurate because it is based on
an insufficient factual basis.” “The main purpose of the accuracy requirement is to protect
a defendant from pleading guilty to a more serious offense than he could be convicted of
were he to insist on his right to trial.” State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).
“A proper factual basis must be established for a guilty plea to be accurate.” Ecker, 524
N.W.2d at 716.
5 Hough pleaded guilty to second-degree criminal sexual conduct under Minn. Stat.
§ 609.343, subd. 1(a) (2006), which provides that
A person who engages in sexual contact with another person is guilty of criminal sexual conduct in the second degree if any of the following circumstances exists: (a) the complainant is under 13 years of age and the actor is more than 36 months older than the complainant. Neither mistake as to the complainant’s age nor consent to the act by the complainant is a defense. In a prosecution under this clause, the state is not required to prove that the sexual contact was coerced[.]
Sexual contact includes “the touching by the complainant of the actor’s . . . intimate parts
effected by a person in a position of authority, or by coercion, or by inducement if the
complainant is under 13 years of age or mentally impaired.” Minn. Stat. § 609.341, subd.
11(a)(ii) (2006).
A defendant “may plead guilty to an offense, even though the defendant maintains
his or her innocence, if the defendant reasonably believes, and the record establishes, the
state has sufficient evidence to obtain a conviction.” Ecker, 524 N.W.2d at 716 (citing
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970)). “[C]areful scrutiny
of the factual basis for the plea is necessary within the context of an Alford plea because of
the inherent conflict in pleading guilty while maintaining innocence.” Theis, 742 N.W.2d
at 648-49. An Alford plea is constitutionally acceptable when “the State demonstrate[s] a
strong factual basis for the plea and the defendant clearly expresse[s] his desire to enter the
plea based on his belief that the State’s evidence would be sufficient to convict him.” Id.
at 647 (quotation omitted). A district court may accept an Alford plea “if the court, on the
basis of its interrogation of the accused and its analysis of the factual basis offered in
6 support of the plea, reasonably concludes that there is evidence which would support a jury
verdict of guilty and that the plea is voluntarily, knowingly, and understandingly entered.”
Id. (quotation omitted).
The Theis court explained that
[i]n the context of an Alford plea, our jurisprudence indicates that the better practice is for the factual basis to be based on evidence discussed with the defendant on the record at the plea hearing . . . . This discussion may occur through an interrogation of the defendant about the underlying conduct and the evidence that would likely be presented at trial; the introduction at the plea hearing of witness statements or other documents, or the presentation of abbreviated testimony from witnesses likely to testify at trial; or a stipulation by both parties to a factual statement in one or more documents submitted to the court at the plea hearing.
Id. at 649 (citations omitted).
The Theis court emphasized that
the main purpose of the accuracy requirement of a valid plea is to protect a defendant from pleading guilty to a more serious offense than he could be convicted of were he to insist on his right to trial. Within the context of an Alford plea, where the defendant is maintaining his innocence, the defendant’s acknowledgement that the State’s evidence is sufficient to convict is critical to the court’s ability to serve the protective purpose of the accuracy requirement. The best practice for ensuring this protection is to have the defendant specifically acknowledge on the record at the plea hearing that the evidence the State would likely offer against him is sufficient for a jury, applying a reasonable doubt standard, to find the defendant guilty of the offense to which he is pleading guilty . . . .
Id. (quotation and citation omitted).
In Theis, the supreme court concluded that Theis’s guilty plea was inaccurate
because (1) “Theis did not acknowledge . . . that evidence described at the plea hearing
7 would be sufficient for a jury to find him guilty beyond a reasonable doubt of fifth-degree
criminal sexual conduct”; (2) Theis’s acknowledgment that he had read the charging statute
did “not address any of the facts regarding the underlying criminal conduct” and “therefore
[did] not provide a basis for the court to conclude that Theis was not pleading guilty to a
crime that is a more serious offense than he could be convicted of at trial”; and (3) the
“allegations of the complaint . . . [did] not satisfy the protective function of the accuracy
requirement” because Theis “did nothing at the plea hearing to affirm that the evidence
supporting these allegations would lead a jury to find him guilty” and “the record
contain[ed] no other basis upon which the district court could make this conclusion in the
face of Theis’s claim of innocence.” Id. at 650 (quotation omitted).
The factual basis in this case does not present any of the Theis deficiencies. First,
Hough acknowledged that, if a jury heard the evidence that his attorney described at the
plea hearing, there was a substantial likelihood that he would be convicted. Second,
Hough’s acknowledgment addressed the facts regarding the underlying criminal conduct.
Hough acknowledged that he knew the contents of the complaint and the police reports,
which described J.H.’s allegation of sexual contact by Hough. And Hough admitted that
in 2007, he lived with J.H. in Dakota County, J.H. was under the age of 13, and he was
more than 36 months older than J.H. Hough’s acknowledgment and admissions provide a
strong factual basis for Hough’s plea.
Third, unlike the circumstances in Theis, the allegations in the complaint “satisfy
the protective function of the accuracy requirement” because Hough affirmed that the
evidence supporting the allegations would lead a jury to find him guilty. See id. Moreover,
8 police reports describing J.H.’s accusation are part of the record and support Hough’s belief
that a jury would find him guilty.1 Cf. id. (stating that “the record contains no other basis
upon which the district court could make this conclusion [that a jury would find him guilty]
in the face of Theis’s claim of innocence”).
Hough contends that the district court did not meet its obligation to ensure the plea
was accurate because “the state did not file nor did the court note that it would accept the
police reports [that Hough referred to in his plea] until well after the Alford plea was
entered.” Hough therefore argues that “the court never made its own evaluation of the
evidence to be offered at trial and whether a sufficient likelihood existed that [he] would
be convicted at trial.” Hough notes that it is the district court’s responsibility “to ensure
that an adequate factual basis has been established in the record,” Ecker, 524 N.W.2d at
716, and that “careful scrutiny of the factual basis for the plea is necessary within the
context of an Alford plea because of the inherent conflict in pleading guilty while
maintaining innocence,” Theis, 742 N.W.2d at 648-49. Hough argues that his plea is
inaccurate and invalid because the district court did not carefully scrutinize the factual basis
by reading the police reports before it accepted his plea.
We stress that it is important for the district court to comply with the safeguards set
forth in Ecker and Theis when considering acceptance of an Alford plea. However, “[i]f
the factual basis of a guilty plea is challenged on direct appeal, this court conducts a de
novo review by reviewing the record of the plea hearing, which should reveal the factual
1 Hough does not assign error to the district court’s post-plea receipt of the police reports.
9 basis.” State v. Johnson, 867 N.W.2d 210, 216 (Minn. App. 2015), review denied (Minn.
Sept. 29, 2015). In this case, the record of the plea hearing includes Hough’s statements at
the time of his plea, any documents received at the time of the plea, and the police reports
received after acceptance of the plea. Our de novo review focuses on whether the record
shows “a strong factual basis for the plea and [that] the defendant clearly expressed his
desire to enter the plea based on his belief that the State’s evidence would be sufficient to
convict him.” Theis, 742 N.W.2d at 647 (quotation omitted).
Once again, Hough’s admissions, combined with his acknowledgment of J.H.’s
accusation against him as set forth in the complaint and the police reports, establish a strong
factual basis for his plea. Moreover, Hough acknowledged a substantial likelihood that a
jury would convict him of the charged offense based on the evidence described in the
complaint and police reports. We therefore conclude, de novo, that the record of the plea
hearing reveals an adequate factual basis for Hough’s Alford plea. Hough did not plead
guilty to a more serious offense than he could have been convicted of had he gone to trial.
Because Hough fails to establish that his plea was inaccurate and therefore invalid, he is
not entitled to relief on this ground. See Raleigh, 778 N.W.2d at 94 (“A defendant bears
the burden of showing his plea was invalid.”).
II.
Hough also contends that his “guilty plea is invalid as involuntary and unintelligent
because he pleaded guilty based on ineffective assistance of counsel.” “A defendant’s
guilty plea may be constitutionally invalid if the defendant received ineffective assistance
of counsel.” Sames v. State, 805 N.W.2d 565, 567 (Minn. App. 2011), review denied
10 (Minn. Dec. 21, 2011). To succeed on a claim of ineffective assistance of counsel, a
defendant must show that his counsel’s representation fell below an objective standard of
reasonableness and that, but for the counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,
694, 104 S. Ct. 2052, 2064, 2068 (1984). An appellate court “need not address both the
performance and prejudice prongs if one is determinative.” State v. Rhodes, 657 N.W.2d
823, 842 (Minn. 2003). And “[t]he petitioner must overcome the presumption that
counsel’s performance fell within a wide range of reasonable representation.” Wright v.
State, 765 N.W.2d 85, 91 (Minn. 2009) (quotation omitted).
Hough argues that his trial counsel’s representation fell below an objective standard
of reasonableness because counsel failed to advise him that he would be subject to
mandatory lifetime predatory-offender registration as a result of his conviction. But “[a]
defendant need not be advised of every consequence for his plea to be intelligent.” Kaiser
v. State, 641 N.W.2d 900, 903 (Minn. 2002). And “‘[i]gnorance of a collateral
consequence does not entitle a criminal defendant to withdraw a guilty plea.’” Id. at 904
(quoting Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998)). In Kaiser, the supreme court
explicitly held that “[t]he duty to register as a predatory offender is a regulatory rather than
punitive consequence and therefore is a collateral consequence of [a defendant’s] guilty
plea,” and thus “[f]ailure to advise [a defendant] of the registration requirement does not
11 make the plea unintelligent, and does not constitute a manifest injustice that mandates the
withdrawal of his plea.” Id. at 907.2
Hough also argues that his trial counsel’s representation fell below an objective
standard of reasonableness because counsel failed to pursue his defense in a diligent
manner, specifically, that counsel failed to contact potentially favorable witnesses.
Appellate courts “give trial counsel wide latitude to determine the best strategy for the
client.” State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013). Generally, the extent of any
investigation and the calling of witnesses at trial is part of trial strategy and “should not be
readily second-guessed.” Id. Minnesota caselaw includes many examples of cases holding
that an attorney’s decision regarding which witnesses to call is unreviewable trial strategy.
See, e.g., State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (stating that decisions about
“[w]hich witnesses to call at trial and what information to present to the jury are questions
that lie within the proper discretion of the trial counsel”).
At the postconviction hearing, Hough’s trial counsel testified that he visited Hough
three times in prison before trial and that they discussed potential witnesses and what those
witnesses might say. Counsel testified that Hough gave him a list of potential witnesses
2 Kaiser, which relied on Alanis, remains binding authority even after Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483 (2010), which held that Padilla’s counsel’s performance was constitutionally deficient under the first prong of Strickland for failing to provide correct advice regarding the immigration consequences of his guilty plea. See Sames, 805 N.W.2d at 568-69 (deciding, after Padilla, that “[this court is] bound to follow the analytical framework of [Alanis], which relies on the distinction between direct . . . and collateral consequences,” and that the “applicable caselaw requires [this court] to ask whether a particular consequence of a guilty plea is a direct . . . or a collateral consequence.”).
12 and that he provided the list to his investigator, who tried to find them. Counsel testified
that he decided not to subpoena one witness, T.G., based on a prior district court ruling.
He further testified that he spoke to two other witnesses, K.G. and J.B., and disclosed the
content of those conversations to the state. Hough’s trial counsel also testified that he was
prepared for trial and had a trial theory. The postconviction court found that Hough
admitted that his trial counsel explained why certain testimony was not relevant and why
that testimony would not be allowed at trial. This record does not suggest that trial
counsel’s decisions regarding which witnesses to pursue were anything other than
unreviewable strategic decisions.
Lastly, Hough argues that his trial counsel’s representation fell below an objective
standard of reasonableness because counsel failed to explain the difference between the
two offenses charged in the complaint. The record does not support Hough’s argument.
Hough’s trial counsel testified that he and Hough discussed the two counts in the complaint
and that based on his training and experience, he was confident that Hough understood the
differences between count 1 and count 2, as well as the possible sentence for each count.
Moreover, at the plea hearing, Hough acknowledged that he went over the plea petition
with his attorney line by line. Hough further acknowledged that he signed the plea petition
to indicate that he read it and understood it. The plea petition states: “I understand the
charge(s) made against me in this case,” “I feel that I have had sufficient time to discuss
my case with my attorney,” and “I am satisfied that my attorney has represented my
interests and has fully advised me.”
13 In sum, Hough has not demonstrated that his counsel’s performance fell below an
objective standard of reasonableness. He therefore fails to show that his guilty plea was
constitutionally invalid based on ineffective assistance of counsel, and he is not entitled to
relief on this ground. See Raleigh, 778 N.W.2d at 94 (“A defendant bears the burden of
showing his plea was invalid.”).
Affirmed.