This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA

IN COURT OF APPEALS

A15-2016

State of Minnesota, 

Respondent,

vs. 

Elroy James Thomas, 

Appellant.

Filed January 9, 2017

Affirmed

Peterson, Judge

Polk County District Court

File No. 60-CR-15-193

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

Greg Widseth, Polk County Attorney, Scott A. Buhler, Charles R. Curtis, Assistant County 

Attorneys, Crookston, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public 

Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and Reyes, 

Judge. 
2

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In this appeal challenging the denial of appellant’s presentence motion to withdraw 

his guilty plea, appellant argues that the district court erred by considering his motion under 

the manifest-injustice standard, rather than the fair-and-just standard. We affirm.

FACTS

After accusing his girlfriend of hiding his beer, appellant Elroy James Thomas 

grabbed her arm and forcibly removed her from their apartment. The deputy sheriff who 

responded to the report of this incident arrested Thomas on an outstanding warrant that was 

issued after Thomas failed to appear at a hearing on a misdemeanor charge for a previous 

assault. The state charged Thomas with felony-level domestic assault for the new incident 

involving his girlfriend. 

After the misdemeanor charge for the previous assault was filed, the state learned 

that Thomas had prior convictions that allowed the previous assault to be charged as a 

felony. When Thomas made his first appearance on the domestic-assault charge for 

assaulting his girlfriend, the state moved to dismiss the misdemeanor charge for the 

previous assault. The district court dismissed the misdemeanor charge, and the previous 

assault was later charged as a felony.

The parties reached a plea agreement. In exchange for Thomas’s guilty plea to the 

domestic-assault charge, the state agreed to a 23-month sentence, which was at the bottom 

of the presumptive sentencing range, and to allow Thomas to argue for a dispositional 
3

departure at sentencing. The state also agreed to dismiss the felony charge for the previous 

assault. The district court accepted Thomas’s guilty plea.

Three days after entering his guilty plea, Thomas wrote the district court a letter 

asking to withdraw the plea. Thomas claimed that he had not been taking his prescribed

anxiety medication when he entered the plea, which caused him to make irrational and 

impulsive decisions and made the plea involuntary and unknowing, and that he received 

ineffective assistance of counsel. A few days later, Thomas formally moved to withdraw 

his plea. Thomas later withdrew this motion. 

Almost four months later, Thomas again moved to withdraw his guilty plea. 

Although Thomas was represented by a public defender, he submitted the motion to 

withdraw his guilty plea pro se.1 The motion stated that it was made “in accordance to the 

Minnesota Rules of Criminal Procedure, Rule 15.05, based on an invalid guilty plea,” and 

it addressed new “evidence of manifest injustice” based on prohibited procedures 

committed by the prosecutor. 

Thomas argued that, by dismissing the misdemeanor charge for the previous assault

during his first appearance on the domestic-assault charge and later filing a felony charge 

for the previous assault, the prosecutor violated the law-of-the-case doctrine and Thomas’s

right against double jeopardy. Thomas contended that because the state was barred from 

filing the felony charge after dismissing the misdemeanor charge, his guilty plea in 

 

1 The district court granted Thomas’s request to discharge his attorney, and Thomas 

represented himself with respect to his motion to withdraw his guilty plea. The motion 

was presented to the district court on written submissions.
4

exchange for the dismissal of the felony charge was invalid. The district court determined 

that filing the felony charge did not violate Thomas’s right against double jeopardy because 

jeopardy did not attach upon the dismissal of the misdemeanor charge and that the law-ofthe-case doctrine was not violated because no rule of law was decided in the misdemeanor 

case that later governed when the offense was charged as a felony.

Thomas also argued that because one of his previous assault convictions did not

contain “relationship evidence,” he could have accurately pleaded guilty to only grossmisdemeanor domestic assault, not felony domestic assault. The district court determined 

that this argument was 

without merit, as the definition of “qualified domestic 

violence-related offense” under Minn. Stat. § 609.02, subd. 16 

includes fifth-degree assault and “similar laws of other states.” 

[Thomas] had two previous qualified domestic violencerelated offense convictions within the past ten years, and 

therefore the requirements of the Felony Domestic Assault 

charge were satisfied.

The district court denied Thomas’s motion to withdraw his guilty plea. The court 

concluded that Thomas did not show a manifest injustice that required the court to allow 

him to withdraw his plea. Thomas was sentenced, and he now challenges the denial of his 

motion to withdraw his guilty plea.

D E C I S I O N

Thomas argues that, because he moved to withdraw his guilty plea before he was 

sentenced, the district court erred by judging the motion under the manifest-injustice 

standard, rather than under the fair-and-just standard. A reviewing court will reverse the 
5

district court’s determination of whether to permit withdrawal of a guilty plea only if the 

district court abused its discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).

Under the rules of criminal procedure, there are two standards for judging a motion 

to withdraw a guilty plea; one applies only to a motion brought before sentencing, and the 

other applies to a motion brought at any time. The district court, in its discretion, “may 

allow the defendant to withdraw a plea at any time before sentence if it is fair and just to 

do so.” Minn. R. Crim. P. 15.05, subd. 2 (emphasis added). “At any time the court must 

allow a defendant to withdraw a guilty plea 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 (emphasis added). The fair-and-just standard is discretionary 

and less demanding than the manifest-injustice standard. State v. Raleigh, 778 N.W.2d 90, 

97 (Minn. 2010); State v. Lopez, 794 N.W.2d 379, 382 (Minn. App. 2011). 

“[A] defendant who can show manifest injustice is entitled as a matter of right to 

withdraw his plea of guilty.” Hirt v. State, 298 Minn. 553, 557, 214 N.W.2d 778, 782 

(1974). “Manifest injustice occurs if a guilty plea is invalid.” Barnslater v. State, 805 

N.W.2d 910, 913 (Minn. App. 2011). “To be constitutionally valid, a guilty plea must be 

accurate, voluntary, and intelligent.” Raleigh, 778 N.W.2d at 94. It is the defendant’s 

burden to show the invalidity of a plea. Id. at 94. 

Thomas had a right to withdraw his guilty plea at any time, either before or after 

sentencing, if he could prove that withdrawal was necessary to correct a manifest injustice. 

See State v. Abdisalan, 661 N.W.2d 691, 693 (Minn. App. 2003) review denied (Minn. 

Aug. 19, 2003) (defendant may premise motion to withdraw guilty plea on manifest 
6

injustice either before or after sentencing). In his motion, Thomas stated that the motion 

was “based on an invalid guilty plea” and that the motion “addresses new evidence of 

manifest injustice” based on prohibited procedures committed by the prosecutor. The 

district court’s determination that Thomas did not prove a manifest injustice addressed the 

claim that Thomas made. Because the district court could not have judged Thomas’s claim 

that there was a manifest injustice without considering the manifest-injustice standard, the 

district court did not abuse its discretion by applying the manifest-injustice standard to 

Thomas’s motion.

Furthermore, even if the district court had considered Thomas’s motion to withdraw 

under the more lenient fair-and-just standard, the result would have been the same.

The fair and just standard requires district courts to give due 

consideration to two factors: (1) the reasons a defendant 

advances to support withdrawal and (2) prejudice granting the 

motion would cause the State given reliance on the plea. A 

defendant bears the burden of advancing reasons to support 

withdrawal. The State bears the burden of showing prejudice 

caused by withdrawal.

Raleigh, 778 N.W.2d at 97 (citations and quotations omitted). The district court concluded 

that the reasons Thomas advanced to support withdrawal were without merit: recharging 

the previous misdemeanor assault as a felony violated neither the Double Jeopardy Clause 

nor the law-of-the-case doctrine, and Thomas’s prior convictions qualified to enhance the 

charge from a misdemeanor to a felony-level charge. Because Thomas’s reasons for 

withdrawal were without merit, they were not sufficient to allow Thomas to withdraw his 

guilty plea under either the manifest-injustice or the fair-and-just standard.
7

Thomas does not contend on appeal that the district court’s conclusion regarding 

any of his three reasons for withdrawal was erroneous, he simply argues that the district 

court might have granted his motion if it had considered the motion under the fair-and-just 

standard. Thomas argues that, because he brought his motion before he was sentenced, all 

he needed to show was that it would have been fair and just to allow him to withdraw his 

plea. He contends that, in attempting to meet this burden, he relied on his attorney’s 

ineffective assistance and the fact that he was not taking his anxiety medication, and, while 

these problems might not have created a manifest injustice, they might have made it fair 

and just to allow him to withdraw his plea.

But Thomas did not rely on his attorney’s ineffective assistance and the fact that he 

was not provided with his anxiety medicine to meet his burden of proof on his second 

motion to withdraw his guilty plea; in a letter to the district court, he asserted those facts

as the reasons for his first motion to withdraw his guilty plea. His first motion cited Minn. 

R. Crim. P. 15.05, subd. 2, and sought to withdraw his plea because it was fair and just to 

do so. But Thomas withdrew that motion, and the district court did not rule on it. 

What Thomas is really requesting is an opportunity to have the district court now 

consider the motion that he withdrew, and he asks that this court remand this case so that 

the district court can evaluate his motion under the fair-and-just standard.2 We will not 

 

2 Thomas contends that a remand is the remedy that this court provided in Anderson v. 

State, 746 N.W.2d 901 (Minn. App. 2008). Anderson, however, was different from this 

case. In Anderson, defense counsel advised appellant “to defer moving to withdraw her 

guilty plea until after sentencing, without advising her how the differing standards of proof 

might affect the decision,” which prejudiced appellant. Id. at 911. This court remanded 

“to allow Anderson to move the district court to withdraw her guilty plea for consideration 
8

remand to allow Thomas to assert in support of his second motion the reasons that he 

asserted in support of his first motion but failed to raise when his second motion was before 

the district court.

Affirmed.

 

under the more lenient, pre-sentencing, fair-and-just standard.” Id. at 911-12. Unlike the 

appellant in Anderson, Thomas was not prevented from making his motion to withdraw his 

guilty plea before sentencing; he made the motion before sentencing. But he failed to 

present issues to the district court when he had the opportunity to present them.