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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Lothenbach Plea

Minnesota does not allow a defendant to make a conditional guilty plea. A “Lothenbach Plea” preserves the defendant’s right to appeal a pretrial order and avoids an otherwise unnecessary jury trial. State v. Lothenbach, 296 N.W.2d 854 (Minn.1980); MRCP 26.01 subd 3 and 4.

Warning: this procedure involves a defendant’s waiver of fundamental rights; failure to make a proper record could result in mandatory reversal.

There are seven basic steps to every Lothenbach plea/stipulation:

  1. The defendant must maintain the plea of not guilty;
  2. Defendant and prosecutor must acknowledge that the pretrial issue is dispositive, or that a trial will be unnecessary if defendant prevails on appeal.
  3. Defendant, after an opportunity to consult with counsel, must acknowledge and personally waive the following fundamental rights: right to a jury trial; right to testify at trial; right to have the prosecution witnesses testify in open court in the defendant’s presence; right to question those prosecution witnesses; and right to require favorable witnesses to testify for the defense in court.
  4. Defendant must stipulate to the prosecution’s evidence in a trial to the court, and acknowledge that the court will consider the prosecution’s evidence, and that the court may enter a finding of guilt based on that evidence.
  5. Defendant must acknowledge that appellate review will be of the pretrial issue, but not of the defendant’s guilt, or of other issues that could arise at a contested trial.
  6. Defendant and prosecutor must make the preceding acknowledgments personally, in writing, or on the record.
  7. After consideration of the stipulated evidence, the court must make an appropriate finding; if that finding is guilty, the court must also make findings of fact on the record or in writing as to each element of the offense(s).

Hon. Alan Pendleton

10th Judicial District

Anoka

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