This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 2 ). STATE OF MINNESOTA IN COURT OF APPEALS A13
- 1974 State of Minnesota, Respondent,

vs. Moses Gum Benjamin, Appellant. Filed December 22, 2014 Reversed and remanded Schellhas , Judge Olmsted County District Court File No. 55

- CR

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- 6676 Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, Rochester, Minnesota (for respondent) Cathryn Mid dlebrook, Chief Appellate Public Defender, Veronica Surges Shacka, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Ross , Presiding Judge; Schellhas , Judge; and Smith , Judge

. U N P U B L I S H E D O P I N I O N SCHELLHAS , Judge
Because appellant did not acknowledge on the record that the evidence is sufficient for a jury, applying a reasonable

- doubt standard, to find him guilty, and2

because the record does not reflect that the district court independently concluded that a strong probability exists that appellant would be found guilty of the charge of second

degree assault with a dangerous weapon , we reverse appellant’s conviction and remand for further proceedings. FACTS In response to a dispatched report of assault, p olice arriv ed at F.A.A.’s residence
where F.A.A

. told the m that appellant Moses Gum Benjamin entered her residence without her consent, argued with her, and refused to leave without his children. Benjamin did not reside with F.A.A. but is the father of her children

. F.A.A. reported that Benjamin picked up a large kitchen knife and stated , “I can finish this right now. I’m serious. I will finish this right now.” F.A.A. also reported that Benjamin walked toward her until his chest was touching her chest and his hand in which he held the knife was touching her. When a ringing telephone distracted Be njamin, F.A.A. ran out of the house with the children. Respondent State of Minnesota charged Benjamin with three counts of first

degree burglary , one count of second

- degree ass ault with a dangerous weapon, one count of terroristic threats, and one count of domestic assault. At a plea hearing, Benjamin waived his right to a trial and entered an Alford plea to the charge of second

- degree assault with a dangerous weapon in exchang e for
dismi ssal of the other charges. Benjamin affirmed that he was entering his plea freely and voluntarily, that he was given enough time to talk with his attorney, and that he understood that his plea could result in immigration consequences. While main taining his innocence, Benjamin affirmed that he was accepting the state’s plea offer because it3

would result in a better outcome for him than was likely i f the case was taken to trial. The prosecutor questioned Benjamin a bout the factual basis for the Alford plea as follows:

THE PROSECUTOR : Mr. Benjamin, you understand that the police reports include information that [F.A.A.] reported to the police? BENJAMIN : I understand. But there’s a lot of them are not correct. THE PROSECUTOR : That you disagree wit h that? BENJAMIN : Yeah, right. THE PROSECUTOR : But among the things she told the police is that you did not have her consent to come over to the house? BENJAMIN : Right. THE PROSECUTOR : And you understand that entering without consent and committing the ass ault that you’re alleged to have committed would constitute burglary in the first degree? BENJAMIN : Right. THE PROSECUTOR : And if [F.A.A.] testified at trial consistent with the report that she gave to the police, there’s a substantial likelihood a jury wo uld find you guilty of first degree burglary? BENJAMIN : Right. THE PROSECUTOR : And you also

— you mentioned a couple times that she had also reported that there was a knife involved? BENJAMIN : There was no knife. That was made out, sir. THE PROSECUTOR : You u nderstand that’s what she reported to the police? BENJ A MIN : Right. THE PROSECUTOR : And that it would be enough evidence that a jury could convict you of what you’re pleading guilty to, which is a second degree assault? BENJAMIN : Right. (Emphasis added.) The district court accepted Benjamin’s plea to second

- degree assault and dismissed the other charges

. A few days after the plea hearing, the prosecutor submitted4

copies of the police reports to th e district court, stating that they were being sent “to
supp ort the factual basis for this plea.” Before sentencing, Benja min moved to withdraw his plea , claiming that he had changed his mind about pleading and express ing dissatisfaction with his attorney’s representa tion. He profess ed his innocence and argued
that allowing his plea withdrawal would be fair and just. The district court denied the motion and sentenced Benjamin . This appeal follows. D E C I S I O N On appeal, Benjamin challenges the accuracy of his Alford plea. He did not argue this ground for withdrawal in district court when he moved for permission to withdraw his plea. “ A defendant is free to simply appeal directly from a judgment of conviction and contend that the record made at the time the plea was entered is inadequate” to establish

t he requirements of a valid plea. Brown v. State , 4 49 N.W.2d 180, 182 (Minn. 1989). We review the validity of a plea de novo. See Lussier v. State , 821 N.W.2d 581, 588 (Minn. 2012) (“ Whether a plea is valid is a question of law which we review de novo. ”).
A Proper Factual Basis A valid plea is one that is accura te, voluntary, and intelligent. State v. Trott , 33 8 N.W.2d 248, 251 (Minn. 1983). “The main purpose of the accuracy requirement is to protect a defendant from pleading guilty to a more serious offens e than he could be convicted of were he to insist on his right to trial.” Id

. To be accurate, a plea must be supported by a “ proper factual basis, ” and the district court has the responsibility to ensure that a proper factual basis is established. State v. Ecker , 524 N.W.2d 712, 716 (Minn. 1994). A proper factual basis exists when “sufficient facts on the record

. . .5

support a conclusion that [the] defendant’s conduct falls within the charge to whic h he desires to plead guilty.” State v. Iverson , 664 N.W.2 d 346, 349 (Minn. 2003) (quotation omitted)

. Here, Benjamin enter ed an Alford plea. See North Carolina v. Alford , 400 U.S. 25,
37

– 38, 91 S. Ct. 160 , 167−68 (1970) (holding constitutional court’s acceptance of defendant’s guilty plea, even though defendant maintained his innocence, where state demonstrated strong factual basis for plea and defendant clearly expressed his desire to enter plea based on overwhelming evidence against him ) ; see also State v. Goulette , 258 N.W.2d 758, 760 (Minn. 1977) ( permit ting the acceptance of Alford pleas “if the court, on the basis of its interrogation of the accused and its analysis of the factual basis offered in support of the plea, reasonably concludes that there is evidence which would support a jury verdict of guilty a nd that the plea is voluntarily, knowing ly, and understandingly entered ” )

. “[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 innoce nce.” State v. Theis , 742 N.W.2d 643, 648−49 (Minn. 2007) . An Alford plea “requires a strong factual basis.” Id

. at 649 (emphasis added). “[T]he defendant’s acknowledgment that the State’s evidence is sufficient to convict is critical to the court’s
abilit y to serve the protective purpose of the accuracy requirement

. ” Id. In Theis , the supreme court enunciated a “ best practice ” for ensuring a defendant this protection :

The best practice

. . . 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 sufficient6 for a jury, applying a reasonable doubt standard, to find the defendant guilty of the offense to which he is pleading guilty, as was done in both Goulette and Ecke r . The strong factual basis and the defendant’s agreement that the evidence is sufficient to support his conviction provide the court with a basis to independently conclude that there is a strong probability that the defendant would be found guilty of the charge to which he pleaded guilty, notwithstanding his claims of innocence. In such a circumstance, the court can e nsure that an Alford plea meets the accuracy prong. Id. (citation omitted). In this case, Benjamin offered an Alford plea to second

- degree as sault with a dangerous weapon. See Minn. Stat. § 609.222, subd. 1 (2012) (stating that a person is guilty of second

- degree assault if he or she “assaults another with a dangerous weapon”)

. “Assault” is defined as “an act done with intent to cause fear in another of immediate bodily harm or death” or “the intentional infliction of or attempt to inf lict bodily harm upon another.” Minn. Sta t. § 609.02, subd. 10 (2012). “Dangerous weapon” is defined to include a “device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produ ce death or great bodily harm.” Id. , subd. 6 (2012). Although Benjamin agreed , when questioned by the prosecutor, that “ if [ F.A.A. ] testified at trial consistent with the repo rt that she gave to the police, there’s a substantial likelihood a jury would find [him] guilty of first degree burglary,” he did not offer an Alford plea to first

- degree burglary

— he offered an Alford plea to second

- degree assault with a dangerous weapon

. No one asked Benjamin, and he never specifically acknowledged on the record at the plea hearing, “ that the evidence the State would likely7

offer against him is sufficient for a jury, applying a reasonable doubt standard, to find [him] guilty of the offense to which he [wa]s pleading guilty.” See Theis , 742 N.W.2d at 649. During his plea colloquy, Benjamin merely agreed with the prosecutor that “it would
be enough evidence that a jury could convict [him] of what [he was] pleading guilty to, which [was] a second degree assault.” (Emp hasis added.) Cf. id. at 650 ( concluding that Alford plea was invalid when defendant “ acknowledged that there was a mere ‘ risk ’ that he w ould be found guilty of the crime to which he was pleading guilty ” and did nothing

“ to affi rm that the evidence supporting the[] allegations would lead a jury to find him guilty”). We conclude that the facts contained in Benjamin’s plea colloquy are insufficient to establish a strong factual basis for the Alford plea to second

- degree assault wit h a dangerous weapon and that Benjamin’s plea is invalid because the facts are insufficient to fulfill the accuracy requirement

. See id. at 649 (“An Alford plea is not supported by the defendant’s admission of guilt, and is actually contradicted by his cla im of innocence; precedent therefore requires a strong factual basis for an Alford plea.”)

. The state contends that a proper factual basis i s established through the complaint and the police reports. A court may consider the facts alleged in a criminal complaint in determining whether a plea contains a n adequate factual basis. See Trott, 338 N.W.2d at 252 ( stating that record contain ed a copy of the complaint and “ defendant, by his plea of guilty, in ef

fect judicially admitted the allegations contained in the complaint ”)

. But, in
Trott , in concluding that a sufficient factual basis supported Trott’s plea, the supreme court stated that “[t] he record also contains pictures of the victim ’ s injuries taken at the hospital following the beating. Moreover, the trial judge carefully interrogated the8

defendant about the acts, and the defendant freely admitted that he had beaten the boy for up to 10 minutes. ” Id. In this case, the record contains no indication that Benjamin agreed that the district court could rely on the probabl e - cause section of the complaint to determine the sufficiency of the factual basis for Benjamin’s plea or that the court in fact
rel ied on the complaint

. And the prosecutor did not submit th e police reports to the district court until a few days after the plea hearing. A factual basis must be established before a court accepts a plea. See Minn. R. Crim. P. 15.01, subd. 1(8) ; Kochevar v. State , 281 N.W.2d 680, 686 (Minn. 1979)

. Because the record does not reflect an agreement of the parties that the district court could rely on the complaint or the police reports , none of w hich w as introduced or offered to the court at the plea hearing, we will not consider them now to supplement the
fac ts contained in the record of the plea hearing. Independent Analysis of Factual Basis by District Court To ensure that an Alford plea meets the accuracy requirement of a valid plea , the district court must analyze the factual basis offered for the plea an d reasonably and “independently conclude that there is a strong probability that the defendant would be found guilty of the charge to which he pleaded guilty, notwithstanding his claims of innocence.” Theis , 742 N.W.2d at 647 , 649 (citing Goulette , 258 N.W .2d at 7 58, 7 6 0). I n this case , the record does not reflect that the district court conducted an independent analysis o f the factual basis or concluded that, based on the factual basis offered, a strong probability exists that Benjamin would be found guilty of the charge of second

- degree9

assault with a dangerous weapon , notwithstanding his claims of innocence. The district
court merely stated th at it accept ed Benjamin’s plea. Because the factual basis established at the plea hearing is insufficient to support Benjamin’s Alford plea to second

- degree assault with a dangerous weapon, and because
the record does not reflect that the district court c onducted an independent analysis of the factual basis or concluded that, based on the factual basis offered, a strong probability exists that Benjamin would be found guilty of the charge of second

- degree assault with a dangerous weapon, we conclude that Be njamin’s plea is not accurate and therefore is invalid.
Reversed and remanded .