This opinion will be unpublished and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

A14-2147

Robert William Silker, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed July 27, 2015

Affirmed

Rodenberg, Judge

Olmsted County District Court

File No. 55-CR-09-5821

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public 

Defender, St. Paul, Minnesota (for appellant)

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County 

Attorney, Rochester, Minnesota (for respondent)

Considered and decided by Kirk, Presiding Judge; Rodenberg, Judge; and Chutich, 

Judge.

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

RODENBERG, Judge

Appellant challenges the validity of his Alford plea of guilty, arguing that there 

was not a strong factual basis to support the plea. We affirm.
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FACTS

On July 28, 2009, appellant Robert William Silker was charged with five counts of 

first-degree criminal sexual conduct, one count of soliciting a child to engage in criminal

sexual conduct, and one count of possession of a pistol by a user of a controlled 

substance. The charges were based on allegations made by 14-year-old L.K, and 

evidence seized pursuant to a search warrant. 

Appellant has consistently denied L.K.’s factual claims. Over three years after 

appellant was charged, the state offered to allow him to plead guilty to criminal sexual 

conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(b) (2006) 

pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970) and State v. 

Goulette, 258 N.W.2d 758 (Minn. 1977), with all other charges being dismissed. 

Appellant accepted this offer. 

At the plea hearing, appellant answered his attorney’s questions concerning his 

plea of guilty to the third-degree charge:

[DEFENSE COUNSEL]: But you are—you’re not—what 

you’re telling the Court basically is that you’re not guilty, that 

you never touched this girl or never—you know—in a sexual 

or inappropriate manner. But—And we’ll get into this a little 

further during the plea. But because you think ultimately 

that—that you believe that you’re going to be convicted of 

this you’re going to enter a guilty plea to take advantage of 

the State’s offer, correct?

[DEFENDANT]: Correct.

. . . .

[DEFENSE COUNSEL]: Okay. And you have reviewed 

the evidence with all of the attorneys . . . But you have 

reviewed every bit of evidence that’s come in on this case, 

correct?
3

[DEFENDANT]: That’s correct.

[DEFENSE COUNSEL]: Okay. You are aware of all of the 

statements and—and pictures and other things that are going 

to be presented at trial, correct?

[DEFENDANT]: That’s correct.

[DEFENSE COUNSEL]: You understand that if a jury 

believes [L.K.]’s statements and the statements of other 

witnesses against you that it is highly likely you will be 

convicted of one or more of the original charges, correct?

[DEFENDANT]: That’s correct.

After a clarification of appellant’s own age and the age of L.K. at the time of the alleged 

offenses, the district court concluded, “I will accept the plea as voluntarily, intelligently

and accurately made.”

Before sentencing, appellant moved the district court to withdraw the guilty plea. 

His motion was denied. 

At the sentencing hearing, defense counsel brought to the district court’s attention 

“a housekeeping matter,” to wit: that, upon reviewing the transcript counsel could not 

find a statement by the court “that on review of the evidence the State—the evidence that 

the State would have presented at trial would be sufficient to convict of a third degree 

crim sex, [because] it was an Alford, and we’d ask that the Court make that finding.” The 

district court responded:

I have reviewed this evidence a number of times on various 

motions and there is sufficient evidence in the police reports 

and the other evidence that’s been presented to the Court over 

the course of several years that would support a—if believed 

by the jury, a conviction for the crime as charged and as pled 

to and there is—so that there is a sufficient factual basis with 

that and the other admissions the defendant has made or 

things he stated during the plea hearing to support the Alford

plea, which I think I already accepted and in fact have already 

decided against a motion for withdrawal of it.
4

The district court sentenced appellant for the conviction of third-degree criminal 

sexual conduct. The district court later denied appellant’s petition for postconviction 

relief, filed after appellant had violated conditions of his probation, and again requesting 

plea withdrawal. This appeal followed.

D E C I S I O N

Appellant contends that his Alford plea of guilty was inaccurate and therefore 

invalid. Once a defendant pleads guilty, he “does not have an absolute right to withdraw 

a valid guilty plea.” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). A defendant 

may withdraw a guilty plea if “withdrawal is necessary to correct a manifest injustice.” 

Minn. R. Crim. P. 15.05, subd. 1; see also Theis, 742 N.W.2d at 646. A “manifest 

injustice exists where a guilty plea is invalid.” Theis, 742 N.W.2d at 646. In order for a 

plea to be valid, “it must be accurate, voluntary, and intelligent.” State v. Ecker, 524 

N.W.2d 712, 716 (Minn. 1994). We review the validity of a guilty plea de novo. State v. 

Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). If a guilty plea is invalid, the case must be 

remanded to provide an opportunity to withdraw the plea. Theis, 742 N.W.2d at 651.

Typically, a defendant pleads guilty by admitting to a crime and explaining, in his 

own words, the circumstances that led to the crime. Ecker, 524 N.W.2d at 716. 

However, a defendant may plead guilty while maintaining his innocence pursuant to the 

United States Supreme Court’s decision in Alford, as adopted in Minnesota in Goulette. 

Such guilty pleas are often referred to as Alford pleas. See Theis, 742 N.W.2d at 647.

“When a defendant pleads guilty but at the same time denies that he is in fact 

guilty, the rationality of the defendant’s decision is immediately called into question.” 
5

Goullette, 258 N.W.2d at 761. Therefore, in order for an Alford plea to be valid, a 

“strong factual basis” must be established on the record. Alford, 400 U.S. at 38, 91 S. Ct. 

at 168; see also Theis, 742 N.W.2d at 649; Ecker, 524 N.W.2d at 716 (stating that an 

“adequate factual basis” is necessary to ensure that the plea was voluntary). A strong 

factual basis ensures that the defendant does not plead “guilty to a more serious offense 

than he could be convicted of were he to insist on his right to trial.” Theis, 742 N.W.2d 

at 649; see also Raleigh, 778 N.W.2d at 95 (“Ultimately, the accuracy requirement 

ensures that a defendant does not plead guilty to a crime more serious than that of which 

he could be convicted if he elected to go to trial.”). 

“The cases reflect 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. Both the defendant and the 

court must be satisfied that the state’s evidence would be sufficient to convict and, in 

fact, that a jury is likely to return a guilty verdict. See Theis, 742 N.W.2d at 650 

(concluding that the defendant’s acknowledgment that there was a “mere ‘risk’” of a 

guilty verdict was an “inadequate acknowledgement” for the purposes of establishing a 

strong factual basis); Ecker, 524 N.W.2d at 716 (requiring that the district court 

interrogate the defendant if the district court believes the state has not adequately

established that the defendant believes he or she would be found guilty if the state’s 

evidence was submitted to a jury). “[T]he [district] court should not cavalierly accept [an 

Alford] plea but should assume its responsibility to determine whether . . . there is a 

sufficient factual basis to support it.” Goullette, 258 N.W.2d at 761.
6

Appellant’s Alford plea of guilty to third-degree criminal sexual conduct in 

violation of Minn. Stat. § 609.344, subd. 1(b) required proof that the appellant “engage[d] 

in sexual penetration with another person [when] the complainant is at least 13 but less 

than 16 years of age and the actor is more than 24 months older than the complainant.” 

Sexual penetration includes digital and oral penetration of the vagina. Minn. Stat. 

§ 609.341, subd. 12(1)-(2) (2006).

Appellant argues that the district court did not establish a strong factual basis 

before accepting his guilty plea, and that the district court erred by accepting his guilty 

plea when the state did not establish the elements of third-degree criminal sexual conduct 

either by reciting the elements of that offense or by presenting evidence tending to prove 

those elements. Appellant argues that, without so establishing the elements of thirddegree criminal sexual conduct, the district court could not have ensured that appellant 

was pleading guilty to a less serious offense than that with which he was originally

charged.

While neither the state nor the district court recited the elements of third-degree 

criminal sexual conduct at the plea-hearing, it is clear from our careful review of the 

record that the district court and appellant had in mind that third-degree criminal sexual 

conduct was a less serious offense than other offenses with which appellant was charged. 

He was questioned about his age and that of L.K. at the time of the offense. The case had 

been ongoing for approximately three years after the initial charges were brought against 

appellant and appellant was keenly aware that L.K. alleged sexual penetration. By the 

time appellant pleaded guilty, both the district court and appellant were very familiar with 
7

the evidence in the state’s possession and what that evidence would have been able to 

prove. Appellant acknowledged during the plea hearing that he had reviewed “every bit 

of evidence that’s come in on this case.” Appellant acknowledged the strength of the 

state’s evidence when he responded affirmatively to the following question:

[W]hat you’re telling the Court basically is that you’re not 

guilty . . . [b]ut because you think ultimately that—that you 

believe that you’re going to be convicted of this you’re going 

to enter a guilty plea to take advantage of the State’s offer, 

correct?

Appellant clearly understood that the result of his plea was a conviction of an offense less 

serious than those he originally faced.1 

We have held that if the district court has “assure[d] itself that the accuracy 

standard is satisfied” the district court need not make an explicit finding to that effect on 

the record “as a routine matter.” State v. Johnson, ___ N.W.2d ___, ___, 2015 WL 

4379808, at *4 (Minn. App. June 29, 2015). While the district court did not explicitly 

find that the charge to which appellant was pleading guilty was less serious than those of 

which he could have been convicted had he gone to trial, it is clear from the record that 

the district court was assured that the accuracy requirement had been met at the plea 

hearing.

Appellant also argues that the only question posed to him concerning whether the 

state had sufficient evidence to convict him of the pleaded-to offense was too ambiguous 

to establish a strong factual basis for the plea. In its order denying appellant’s petition for 

 

1

The district court stated, “I’m not usually a big fan of Alford Pleas but I think it’s 

appropriate in this case.” This statement further evidences the district court’s familiarity 

with the evidence against appellant and the circumstances surrounding appellant’s guilty 

plea. 
8

post-conviction relief, the district court acknowledged that “the questioning of [appellant] 

on [whether the crime to which he was pleading guilty was more serious than that of 

which the state could have convicted him] could have been more thorough.” And indeed, 

it could have been. The only question concerning whether a jury was likely to convict 

appellant on the evidence in the state’s possession elicited an ambiguous answer: “You 

understand that if a jury believes [L.K.’s] statements and the statements of other 

witnesses against you that it is highly likely you will be convicted of one or more of the 

original charges, correct?” (Emphasis added.) Appellant responded affirmatively. But

appellant was charged not only with five counts of first-degree criminal sexual conduct;

he was also charged with soliciting a child to engage in sexual conduct and with being a 

user of controlled substances in possession of a pistol, the latter two crimes being less 

serious than third-degree criminal sexual conduct, the offense to which appellant pleaded 

guilty.

Despite this ambiguity, we are convinced from our review of the record that 

appellant knew that the state had evidence tending to prove the first-degree criminal 

sexual conduct charges and was acknowledging that, had that evidence been presented to 

the jury, he was “highly likely” to be convicted of first-degree criminal sexual conduct. 

Again, appellant had reviewed all of the evidence in the state’s possession and this case 

has been pending for years. As the district court rightly observed concerning the question 

of ambiguity, “it would not be logical to assume that [appellant] was referring to one of 

the lesser charges when he agreed that it was ‘highly likely’ that he would be convicted.” 

A common-sense reading of the plea transcript demonstrates that, while the noted 
9

ambiguity exists, appellant was pleading guilty to the third-degree offense to avoid one or 

more first-degree convictions.

The requirement of establishing a strong factual basis in an Alford plea flows from 

the requirement that a guilty plea be accurate to be valid, which ensures that appellant 

was not pleading guilty to a “more serious offense than he could be convicted of were he 

to insist on his right to trial.” Theis, 742 N.W.2d at 649. Because it is clear from the 

record before us that, as the district court found before sentencing, it was highly likely 

that appellant would have been convicted of first-degree criminal sexual conduct had a

jury been presented with the evidence in the state’s possession, and because it is clear that 

appellant knew this, the Alford plea, while imperfect, had a strong factual basis and was 

therefore valid. 

Affirmed.