This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








State of Minnesota,





Marvin A. Strong,




Filed June 13, 2006


Toussaint, Chief Judge


Anoka County District Court

File No. KX-04-11659



Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Robert M.A. Johnson, Anoka County Attorney, Kristin C. Larson, Assistant County Attorney, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303 (for respondent)


John M. Stuart, State Public Defender, Ngoc Lan Nguyen, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Marvin A. Strong challenges his conviction of second-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.343, subds. 1(g), 2(a), 609.101, subd. 2 (2004), without first bringing a motion to withdraw his guilty plea before the district court, arguing that his guilty plea violated his constitutional right to due process because it was not accurate, voluntary, and intelligent.  Because we find no indication in the record that appellant’s plea was constitutionally defective, we affirm.



Initially, the state contends that this appeal is not properly before this court and must be dismissed because appellant did not file a motion to withdraw his guilty plea with the district court before pursuing this appeal.  Minn. R. Crim. P. 15.05, subd. 1, provides that a defendant may move to withdraw a guilty plea when it is “necessary to correct a manifest injustice.”  Normally, such a motion is made before pursuing an appeal with this court.  See, e.g., State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004). 

In support of its contention, the state points to the role of this court, which is to review matters on the record.  “The function of the court of appeals is limited to identifying errors [on the record] and then correcting them.”  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (citations omitted).  This court will generally not consider matters not argued and considered in the court below.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (criminal cases).  Thus, we typically will not entertain a defendant’s complaint regarding the acceptance of his or her guilty plea unless the trial court has had an opportunity to hear the matter.  State v. Hemstock, 276 Minn. 457, 458, 150 N.W.2d 562, 563 (1967). 

But a defendant may challenge his guilty plea on direct appeal when the record contains facts to analyze the defendant’s claim and when no disputes of material fact must be resolved to evaluate the claim on the merits.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  If the record is sufficient to consider the issue, a defendant can challenge his conviction based on a claimed invalid guilty plea by a postconviction petition or by appealing directly to this court. State v. Anyanwu, 681 N.W.2d 411, 413 n.1 (Minn. App. 2004); State v. Newcombe, 412 N.W.2d 427, 430 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).

  Here, it appears that appellant bases his challenge entirely on matters in the record; no material fact disputes exist.  Therefore, we will consider the merits of this appeal.  But we observe that all parties are better served when a criminal defendant first files a motion to withdraw the guilty plea before pursuing a direct appeal.  A defendant who challenges a judgment of conviction against him based on an invalid guilty plea may seek a postconviction hearing from the district court. Brown v. State, 449 N.W.2d 180, 182- 83 (Minn. 1989). “Post-conviction proceedings are the proper forum for presentation and evaluation of matters not of record supporting withdrawal of a guilty plea.” State v. Schaefer, 374 N.W.2d 199, 201 (Minn. App. 1985).  Adherence to this process clarifies the issues on appeal and furnishes a more complete record to facilitate meaningful appellate review.  We strongly caution parties to raise their claims of constitutionally defective guilty pleas in the district court before raising the issue on direct appeal.


Appellant raises one issue on appeal.  Appellant contends that his guilty plea was constitutionally defective because it was not accurate, voluntary, and intelligent.  The validity of a guilty plea entered is a question of law.  State v. Newcombe, 412 N.W.2d 427, 430 (Minn. App. 1987), review denied (Minn. Nov. 13 1987). 

To comport with due process, a guilty plea must be accurate, voluntary, and intelligent. State v. Rhodes, 675 N.W.2d 323, 326 (Minn.2004).  An accurate plea is one entered without improper inducement and with a full understanding of the possible consequences; it is also one that demonstrates that defendant is guilty of a crime at least as serious as that to which he is pleading. Beaman v. State, 301 Minn. 180, 183, 221 N.W.2d 698, 700 (1974).  A plea is voluntary if it is not made in response to improper pressures, inducements, or promises. Alanis, 583 N.W.2d at 577.  To satisfy the constitutional requirement of entering a guilty plea intelligently, a defendant must understand the nature of the charges, the rights being waived, and the direct consequences of a guilty plea.  Id.; State v. Aviles-Alvarez, 561 N.W.2d 523, 526 (Minn. App. 1997), review denied (Minn. June 11, 1997).

Here, appellant cites some of the above law but raises no specific facts or arguments as to why his plea was constitutionally defective. Appellant presents some of the facts of his case, furnishes the transcript of his plea hearing, and cites the general rule of law for a plea to comport with due process.   But appellant does not even attempt to apply his facts to the law or show the relationship between the law and facts of his case.  A criminal defendant has the burden of establishing facts warranting the reopening of his case.  King v. State, 562 N.W.2d 791, 794 (Minn. 1997).   Assignment of error in a brief based on “mere assertion” and not supported by argument is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (citation omitted).

            Based on our review of the record, we find nothing constitutionally defective about appellant’s plea. Appellant’s plea was made with the full understanding of the consequences and demonstrates his guilt; appellant admitted to the elements of the crime with which he was charged, second-degree criminal sexual conduct. The record provides no indication of any improper pressure, inducements, or promises made to appellant in exchange for his guilty plea.  Appellant understood the nature of the charges because he was informed during the plea hearing that he was pleading guilty to second-degree criminal sexual conduct, which carried a maximum sentence of up to 25 years.  Therefore, based on the record before us, the district court did not err in accepting appellant’s guilty plea.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.