This opinion is nonprecedential except as provided by
                         Minn. R. Civ. App. P. 136.01, subd. 1(c).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A23-0025
                                     A23-0027

                                   State of Minnesota,
                                       Respondent,

                                            vs.

                                    Eric Dow Johnson,
                                        Appellant.

                                 Filed January 22, 2024
                                        Affirmed
                                   Segal, Chief Judge


                             Hennepin County District Court
                       File Nos. 27-CR-20-26368, 27-CR-20-26369

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Andrew C. Wilson, Wilson & Clas, Minneapolis, Minnesota (for appellant)

      Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and

Wheelock, Judge.

                           NONPRECEDENTIAL OPINION

SEGAL, Chief Judge

      In this consolidated appeal, appellant argues that the district court erred in denying

his motions to withdraw his guilty pleas. He maintains that the pleas were induced by an
illusory promise, a promise that the county attorney did not have the authority to fulfill,

and that the pleas were therefore not voluntary. We affirm the district court’s denial

because there was no illusory promise, the terms of the plea agreement were clear, and

appellant’s pleas were voluntary.

                                         FACTS

       In December 2020, respondent State of Minnesota charged appellant Eric Dow

Johnson in two separate complaints, both venued in Hennepin County, with committing

third-degree criminal sexual conduct against two different victims. After the charges were

filed, Johnson’s biological daughter, R.J., reported that Johnson had sexually assaulted her

in his home in Meeker County sometime between 2004 and 2006. The daughter of a

woman Johnson had dated, A.A., also reported, after the Hennepin County cases were filed,

that she had been sexually assaulted by Johnson at his Meeker County home sometime

between 2003 and 2005. The state sought to introduce the allegations made by R.J. and

A.A. as Spreigl evidence in the Hennepin County cases to prove a common scheme or plan.

See State v. Spreigl, 

 (Minn. 1965) (allowing the admission of

evidence of other crimes to prove motive, intent, absence of mistake, identity, or common

scheme or plan).

       The Hennepin County cases were eventually resolved by a plea agreement on the

day trial was to begin in May 2022. During the plea negotiations, Johnson expressed a

desire to try to resolve the potential criminal cases in Meeker County involving R.J. and

A.A. The Hennepin County prosecutor communicated with the Meeker County Attorney’s

Office (MCAO) to see if a resolution of the Meeker matters was possible. An agreement


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was reached regarding A.A.’s case, but there was no commitment made regarding the filing

of charges in R.J.’s case.

       The terms of the plea agreement called for concurrent sentences of 70 months and

57 months, along with other conditions. The plea agreement also included a promise by

the MCAO that the state would not charge the alleged offense involving A.A. but that no

such understanding had been reached concerning R.J.’s case. The terms provided that, if

an agreement was reached before sentencing not to charge the case involving R.J., then

Johnson would agree to serve an additional 20 months such that his longer sentence would

be increased from 70 months to 90 months. Johnson’s counsel summarized this part of the

agreement at the plea hearing as follows:

                      As a part of this agreement, the State and the Meeker
              County Attorney’s Office agree not to charge Mr. Johnson with
              that alleged Spreigl incident [involving A.A.]. . . . [A]nd that’s
              the sum and total of our agreement so far in this case . . . .

                     ....

                     The other thing that may change between now and
              sentencing is the following: There’s one other Spreigl incident
              that has been uncharged. This is all part of [the district court]’s
              previous order that was not admitted in this case. And that is
              involving a Spreigl victim by the name of—or by the initials of
              R.J. and that time range was from 2004 through 2006.

                     At this point, we do not have an agreement about that
              case not being charged. However, between now and
              sentencing, if the parties do come to an agreement where the
              State and Meeker County will not charge Mr. Johnson with that
              alleged Spreigl incident, then, as a benefit to not having that
              one charged and an agreement not to have it charged, the time
              that Mr. Johnson would serve in [the file with the 70-month
              sentence] goes up to 90 months, concurrent, instead.



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                     So, if they agreed not to charge the fourth incident, it’s
              an additional 20 months as a benefit of the bargain for that to a
              90-month concurrent sentence. . . . If it remains as it is, where
              A.A. is not charged but R.J.—there’s no agreement on her not
              charging, then we stay at the 70 months that we’ve agreed to
              today. And that’s the agreement of the parties.

Johnson acknowledged that he understood and agreed to the terms his attorney had

summarized. Johnson then pleaded guilty in the two Hennepin County cases, and the court

accepted his pleas.

       Before sentencing, Johnson moved to withdraw his pleas, arguing duress and that

the nature of the terms with the two Meeker County matters rendered the plea involuntary.

The district court issued its ruling on the record, denying the motions. The district court

found no duress because of the amount of time that the cases had been pending, the fact

that the plea agreement was reached on the day of the third scheduled trial date, and the

fact that Johnson had been accorded a significant amount of time on the day of trial to try

to resolve all four matters as he had requested.

       The district court also observed that the terms of the agreement were clearly stated

at the plea hearing, that Johnson showed no hesitation at the plea hearing in agreeing to the

terms, and that the 70-month and 90-month possible sentences were both within the

guidelines. Finally, the district court concluded that the state would suffer prejudice by

reason of the impact on the victims if they were to be subpoenaed again to testify after

having been told their cases were resolved. Because no agreement had been reached

concerning R.J.’s case as of the sentencing hearing date, the district court sentenced

Johnson to the agreed-upon 70 and 57 months, to be served concurrently.



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                                      DECISION

      Johnson’s argument on appeal focuses on his claim that the plea agreement

contained an illusory promise that he alleges was outside the powers of the Hennepin

County Attorney’s Office (HCAO) to fulfill. He argues that his guilty pleas were thus not

voluntary and that the district court’s denial of his motions to withdraw those pleas must

be reversed.

      Appellate courts review “a district court’s decision to deny a withdrawal motion for

abuse of discretion, reversing only in the rare case.” State v. Raleigh, 

(Minn. 2010) (quotation omitted); see also Kim v. State, 

 (Minn.

1989) (rejecting more lenient approach to presentence guilty plea withdrawals).

“Assessing the validity of a plea presents a question of law that we review de novo.”

Raleigh, 

.

I.    Johnson preserved his argument for appeal.

      Before reaching the merits of Johnson’s argument, we first address the threshold

question of whether Johnson preserved his argument for appeal. The state asserts that

Johnson failed to preserve the argument because he never asserted the issue before the

district court that he is now making on appeal—that the HCAO lacked “authority” or

“jurisdiction” to enter into a plea agreement that bound another county attorney’s office.

See, e.g., Roby v. State, 

 (Minn. 1996) (stating that appellate courts

generally address only those questions previously raised before the district court). But a

defendant can seek to challenge the validity of a guilty plea for the first time on direct

appeal. See Brown v. State, 

 (Minn. 1989) (stating a defendant is free


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to appeal from a judgment of conviction and argue that the record at the time of the plea

was inadequate); State v. Johnson, 

 (Minn. App. 2015) (citing State

v. Iverson, 

 (Minn. 2003)), rev. denied (Minn. Sept. 29, 2015).

       In addition, we note that Johnson did argue before the district court that the plea

agreement contained a promise that the HCAO might not be able to fulfill. In support of

Johnson’s claim of duress and confusion, Johnson’s counsel posited that Johnson did not

know, because of “the unique nature of the plea whether or not [the] promise [concerning

the Meeker County cases] could or could not be fulfilled in the situation.” We thus reject

the state’s argument that the issue was not preserved for appeal.

II.    The district court did not abuse its discretion in denying Johnson’s motions to
       withdraw his guilty pleas.

       Johnson’s motions to withdraw his guilty pleas were made before he was sentenced.

Johnson thus relies on the “fair and just” standard for plea withdrawal on appeal, which is

a less demanding standard than the “manifest injustice” standard that applies to plea-

withdrawal motions made after sentencing. See Minn. R. Crim. P. 15.05, subds. 1, 2; State

v. Theis, 

 (Minn. 2007). Under the fair-and-just standard, “[t]he court

must give due consideration to the reasons advanced by the defendant in support of the

motion and any prejudice the granting of the motion would cause the prosecution by reason

of actions taken in reliance upon the defendant’s plea.” Minn. R. Crim. P. 15.05, subd. 2.

The “defendant bears the burden of advancing reasons to support withdrawal” and “[t]he

State bears the burden of showing prejudice” from allowing a withdrawal. Raleigh, 

.



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       Johnson argues that he satisfied his burden under the fair-and-just standard because

the terms of the plea agreement contained a promise that the MCAO would not charge

A.A.’s case and the possibility that R.J.’s case would also not be charged. Johnson

maintains that the HCAO had no authority to enforce these promises concerning the

MCAO and that the plea agreement thus contained an illusory promise and inducement for

Johnson to plead guilty. See State v. Trott, 

 (Minn. 1983) (stating an

unfulfillable promise may be grounds for granting a plea withdrawal). We are not

persuaded.

       First, the terms of the plea agreement have, in fact, been fulfilled. The MCAO has

not charged Johnson with a sexual-assault case involving A.A. And Johnson’s argument

that the plea agreement was invalid because it was premised on a promise made by a county

attorney from a different county is unsupported by any authority. As the district court

noted, it was Johnson who wanted to explore resolving the potential Meeker County cases

as part of the plea negotiations. Moreover, Johnson is careful to make clear that he is not

suggesting that the HCAO misrepresented the promise made by the MCAO regarding the

alleged offense involving A.A. And, if the MCAO did charge Johnson with the alleged

A.A. offense in violation of the terms of the plea agreement, avenues of relief would be

available to Johnson to seek relief at such time.

       Second, as to the alleged offense involving R.J., Johnson’s own counsel made clear

to him at the plea hearing that no agreement had been reached. Johnson’s counsel further

advised him that, if the MCAO were to agree—before sentencing in the Hennepin County

cases—not to charge the alleged offense involving R.J., Johnson’s sentence would be


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increased by 20 months in exchange. The condition was only effective up to the date of

sentencing. There was no agreement for any change, conditional or otherwise, post-

sentencing. Johnson stated that he understood and still agreed to proceed with his guilty

pleas. See Schwerm v. State, 

 (Minn. 1970) (holding nonfulfillment

of a defendant’s “unwarranted hope” is not sufficient for plea withdrawal).

       Finally, we reject Johnson’s argument that the state failed to satisfy its burden to

show that prejudice would result if Johnson withdrew his plea. While it is true that the

state candidly acknowledged that a few months’ delay would not cause the state’s case to

“fall apart,” the state nevertheless established that some level of prejudice would result.

The district court found that “when there are witnesses that are told the trial is done and

will not happen, and then they’re told now you’re subpoenaed again to testify in that same

trial, that does, in its nature, prejudice the State.”

       In sum, we conclude that the district court balanced the considerations required

under the fair-and-just standard, and we discern no abuse of discretion.

       Affirmed.




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