This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




Jeffrey Allen Smith,


State of Minnesota,


Filed October 2, 2007


Peterson, Judge


Hennepin County District Court

File No. 03070763


John M. Stuart, State Public Defender, Richard A. Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


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


Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487  (for respondent)


            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from an order denying his postconviction petition challenging his 2004 first-degree-manslaughter conviction, appellant argues that his guilty plea was invalid because he did not understand the plea and thought he could still use intoxication as a defense and that the district court failed to follow the proper procedures to ensure that appellant understood the plea.  We affirm.


            Appellant Jeffrey Allan Smith pleaded guilty to first-degree manslaughter pursuant to a plea agreement.  Under the plea agreement, charges of first-degree assault and second-degree felony murder were dismissed, and appellant was sentenced to an executed term of 153 months in prison, which was a three-month downward departure from the minimum presumptive sentence.  The sentencing departure was based on appellant’s cooperation with police and on the fact that the decision to assault the victim occurred after appellant and his accomplice were extremely drunk.

            Appellant signed a plea petition stating that he had sufficient time to discuss the case with his attorney, he was satisfied that his attorney had fully informed him as to the facts of the case, and that his attorney had discussed possible defenses to the charges against him.  The phrase, “Norgaard plea,”[1] is handwritten on the plea petition following a statement that appellant did not claim that he was so drunk or so under the influence of drugs or medicine that he did not know what he was doing at the time of the crime.  At the plea hearing, appellant testified that he was very drunk on the date of the offense and he could not remember all of the events that occurred.  He testified that he was familiar with the police reports and witness statements and he was not disputing that he had kicked the victim.  Appellant answered “yes” when he was asked, “[Y]ou’re not denying that you did it, but you just don’t remember most of what happened on the date of the offense; is that correct?”

            Appellant filed a pro se petition for postconviction relief, alleging various challenges to his guilty plea, including a claim that he did not understand the Norgaard plea when he pleaded guilty.  At the hearing on the petition, appellant testified that his attorney had reviewed the plea petition with him on two occasions and that there was discussion about the meaning of a Norgaard plea.  Appellant admitted that, at the plea hearing, he represented to the court that he had had sufficient time to discuss the case, including the Norgaard plea.  Appellant also admitted that, during the plea process, defense counsel and the prosecutor went over the Norgaard plea with him in some detail.  When asked whether, during the plea process, a Norgaard plea was explained to him, appellant testified that he did not recall. 

            The postconviction court concluded that appellant was fully apprised of his Norgaard plea, his plea was voluntary and uncoerced, and he freely, voluntarily, and intelligently waived his right to assert an intoxication defense after being fully advised by his attorneys. The postconviction court denied appellant’s petition, and this appeal followed.

D E C I S I O N       

            “A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.”  Greer v. State, 673 N.W.2d 151, 154 (Minn. 2004).   Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id.  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  A petitioner seeking postconviction relief has the burden to establish, by “a fair preponderance of the evidence,” the facts alleged in the petition.  Minn. Stat. § 590.04, subd. 3 (2006).

            The district court may allow a defendant to withdraw a guilty plea on “proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1; Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  A manifest injustice results when a defendant’s plea is not entered accurately, voluntarily, and intelligently.  Alanis, 583 N.W.2d at 577.

            Appellant argues that his plea was not intelligent because he did not understand that by pleading guilty, he was waiving intoxication as a defense.  For a plea to be intelligent, the defendant must understand the charges, the rights that he waives by pleading, and the consequences of his plea.  Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002).  Appellant’s claim that he did not understand that he was waiving intoxication as a defense was contradicted by the plea agreement that he signed, which states that appellant had sufficient time to discuss the case with his attorney, his attorney had discussed possible defenses to the charges against him, and appellant did not claim that he was so drunk that he did not know what he was doing at the time of the crime.  At the hearing on appellant’s postconviction petition, appellant testified that before he pleaded guilty, his attorney had reviewed the plea petition with him on two occasions.  The postconviction court found that appellant’s claim that he could enter a guilty plea, waive his rights to a trial, and be confused about whether he could still raise a defense was not credible.  This court defers to the postconviction’s court’s credibility determinations.  Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006) (stating that the appellate standard of review gives “considerable deference” to the postconviction court’s credibility determinations, noting that the postconviction court “is in a unique position to assess witness credibility”).

            Appellant also argues that the postconviction court erred by denying postconviction relief when the state failed to present evidence rebutting his claim.  But appellant had the burden of proof in the postconviction proceeding, and the postconviction court was not required to believe his claim that he did not understand that he was waiving intoxication as a defense.  See State v. Struzan, 298 Minn. 547, 548, 214 N.W.2d 342, 343 (1974) (explaining that “[n]either the [district] court nor the postconviction court was obligated to believe defendant’s later claim that he had pleaded guilty, even though innocent, because of improper pressure from his counsel or because of misinformation from his counsel concerning the maximum possible sentence”).

            Citing State v. Ecker, 524 N.W.2d 712, 717 (Minn. 1994), appellant argues that the district court failed to follow the proper procedures for accepting a Norgaard plea because the court did not ask direct questions to determine whether appellant understood what a Norgaard plea was and the court did not affirmatively state on the record that it found that an adequate factual basis for the plea had been established.[2]  Ecker states that the “court should accept a Norgaard plea with caution and must be certain the defendant understands his or her rights.”  Id.  But Ecker does not set forth specific questions to be asked and, instead, states that “[t]he defendant should be questioned directly regarding whether he or she understands the legal implications of such a plea.”  Id.  The record shows that appellant was questioned directly and understood the consequences of his plea at the time he entered it.

            Ecker also states that the “judge should personally interrogate the defendant regarding why the defendant is willing to plead guilty, unless the court is reasonably satisfied defense counsel and the prosecution have established an adequate factual basis.”  Id. (emphasis added).   Ecker does not require that the judge ask direct questions to determine whether the defendant understands a Norgaard plea.

            Appellant does not argue that there was an inadequate factual basis for his plea.  Rather, he argues that “the court did not affirmatively state on the record that it was
finding that an adequate factual basis had been established.”  Ecker does not impose such a requirement on the district court.


[1] Under State ex rel. Norgaard v. Tahash, 261 Minn. 106, 111, 110 N.W.2d 867, 871 (1961), a defendant who does not recall specific events may enter a plea based on the victim’s statement. 

[2] These issues were not raised before the postconviction court and, therefore, are not properly before this court.  Azure v. State, 700 N.W.2d 443, 447 (Minn. 2005).  Nonetheless, because they can be determined as a matter of law on the record before us, we will address them in the interests of judicial economy.  See Minn. R. Crim. P. 28.02, subd. 11 (stating that appellate court “may review any other matter as the interests of justice may require”).