When Accepting a Norgaard Guilty Plea Trial Court Need Not Make Express Finding of Strong Probability That A Defendant Would Be Found Guilty

State v. Johnson, Minn.Ct.App., 6/29/2015.  Mr. Johnson pled guilty to felony domestic assault by strangulation.  He said at the plea hearing that he couldn't remember the incident.  He agreed, though, from a read of the police reports, that the state's evidence "would likely persuade" a jury to find him guilty.  On appeal, he said that he should get a new trial because the trial court had not made an express finding of fact that there was a "strong probability" that he would be found guilty.

Here's what the trial judge asked Mr. Johnson:

Would you agree that if the fact finder, whether that was me or a jury, if we were in a trial and the prosecution called witnesses who would testify to what is in those police reports about what happened that night at your residence, that applying the presumption of innocence and 4 burden of proof beyond a reasonable doubt, if all that information came out, that you would be convicted of that Domestic Assault By Strangulation?

A guilty plea is valid if it is accurate, voluntary and intelligent.  State v. Ecker, 524 N.W.2d 712 (Minn. 1994).  Mr. Johnson's challenge to his plea focuses on the accuracy requirement of a valid plea.  Accuracy means that there is an adequate factual basis to support a conclusion that a defendant's conduct falls within the charge to which he desires to plead.  Usually, a defendant establishes that factual basis by answering questions about the alleged offense conduct.  However:

a factual basis [may also] be established by other means: when a defendant enters an Alford/Goulette plea and when a defendant enters a Norgaard plea.” Id. A defendant enters an Alford/Goulette plea if he maintains his innocence but “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)); see also State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977). A defendant enters a Norgaard plea if he “claims a loss of memory, through amnesia or intoxication, regarding the circumstances of the offense” but the record establishes that “the defendant is guilty or likely to be convicted of the crime charged.” Ecker, 524 N.W.2d at 716; see also State ex rel. Norgaard v. Tahash, 261 Minn. 106, 112-14, 110 N.W.2d 867, 871-72 (1961).

 The appellate court leaves a trial court's obligations where it finds them:  the trial court must be satisfied, among other things, that the plea is supported by an adequate factual basis.  There is no requirement from either case law or the rules of criminal procedure that the court also make an express finding that "there is a strong probability that the defendant would be found guilty of the charge to which he pleaded guilty."  See State v. Theis, 742 N.W.2d. 643 (Minn. 2007).