                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0937

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                             Gerald Raymond Gustafson,
                                     Appellant.

                              Filed February 17, 2015
                                      Affirmed
                                   Stauber, Judge

                           Beltrami County District Court
                              File No. 04-CR-12-3614

Lori Swanson, Minnesota Attorney General, St. Paul, Minnesota; and

Timothy R. Faver, Beltrami County Attorney, David P. Frank, Assistant County
Attorney, Bemidji, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Veronica Surges Shacka,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Stauber, Presiding Judge; Worke, Judge; and

Stoneburner, Judge.




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                         UNPUBLISHED OPINION

STAUBER, Judge

       Appellant argues that he is entitled to withdraw his guilty plea because his plea

was inaccurate and involuntary. We affirm.

                                         FACTS

       In October 2012, appellant Gerald Gustafson was charged with first-degree

conspiracy to sell methamphetamine in violation of Minn. Stat. § 152.021, subd. 1

(2012). Because appellant has a significant criminal history, the state informed appellant

that it would be seeking an upward departure from the guidelines sentence due to

appellant’s status as a “career offender.” Appellant subsequently agreed to plead guilty

to the charged offense. In exchange for appellant’s guilty plea, the state agreed to

withdraw its request for an upward departure and instead recommend a “bottom of the

box” guidelines sentence, which would result in a 135-month sentence.

       Appellant failed to appear for sentencing and was later apprehended in Arizona.

At the sentencing hearing following appellant’s extradition to Minnesota, appellant stated

that he did not wish to withdraw his guilty plea and requested a bottom-of-the-box

sentence consistent with the terms of the plea agreement. Conversely, the state

recommend a top-of-the-box guidelines sentence of 189 months due to its position that it

was no longer bound by the terms of the original plea agreement. The district court

agreed with the state and sentenced appellant to 189 months in prison. This appeal

followed.




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                                      DECISION

       A challenge on direct appeal to the validity of a guilty plea is permitted when the

record contains factual support for the defendant’s claims and when no disputes of

material fact must be resolved to evaluate the claim on the merits. State v. Anyanwu, 681

N.W.2d 411, 413 n.1 (Minn. App. 2004). “A defendant bears the burden of showing his

plea was invalid.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). The validity of a

plea is a question of law that is reviewed de novo. Id.

       To withdraw a guilty plea after sentencing, a defendant must show the withdrawal

is necessary to correct a manifest injustice. Id. at 93 (citing Minn. R. Crim. P. 15.05,

subd. 1). A guilty plea is invalid and manifestly unjust if it is not voluntary, intelligent,

and accurate. Id. at 94. If a guilty plea fails to meet any of these three requirements, the

plea is invalid. State v. Theis, 742 N.W.2d 643, 650 (Minn. 2007). Appellant challenges

only the accuracy and voluntariness of his plea.

I.     Accuracy

       The accuracy requirement protects defendants from pleading guilty to crimes that

are more serious than the crimes they could be convicted of at trial. Lussier v. State, 821

N.W.2d 581, 588 (Minn. 2012). “A proper factual basis must be established for a guilty

plea to be accurate.” State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). A plea’s

factual basis is adequate if there are “sufficient facts on the record to support a conclusion

that defendant’s conduct falls within the charge to which he desires to plead guilty.”

State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003) (quotation omitted). The factual

basis of the plea, however, becomes “inadequate when the defendant makes statements


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that negate an essential element of the charged crime because such statements are

inconsistent with a plea of guilty.” Id. at 350.

       Appellant argues that his plea lacked an adequate factual basis and was therefore

inaccurate because he failed to admit the requisite elements for first-degree conspiracy to

sell methamphetamine and instead maintained his innocence throughout the proceedings.

Appellant asserts that his “unwillingness to rescind his claim of innocence led the State to

ask a multitude of leading questions throughout [the] plea hearing.” Appellant further

argues that it was “vital that [he] admit to selling ten grams or more of

methamphetamine,” and that his “continued denial on the record about an important

element of first-degree sales is in direct contradiction to the goal of establishing an

adequate factual basis for his guilty plea.”

       Appellant’s argument is without merit because it is premised on his misstatement

of the applicable law. The conduct appellant describes is first-degree sale of

methamphetamine. But he pleaded guilty to conspiracy to commit first-degree sale of

methamphetamine, which required the state to prove that appellant conspired to sell one

or more mixtures of a total weight of 10 grams or more containing methamphetamine

within a 90-day period. See Minn. Stat. § 152.021, subd. 1(1). Conspiracy entails an

agreement between two or more people to commit an overt act in furtherance of the

conspiracy. See State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001) (discussing

essential elements of controlled-substance conspiracy crime). “The elements of the

underlying crime need not be proven to establish conspiracy since the crime itself need

not be proven to prove conspiracy.” State v. Tracy, 667 N.W.2d 141, 146 (Minn. App.


                                               4
2003). Thus, any failure by appellant to admit an element of the completed offense

would not invalidate his plea of guilty to conspiring to commit that offense.

       Moreover, the record contains sufficient facts establishing the quantity of

methamphetamine that appellant conspired to sell. Although the record reflects that

appellant was reluctant to admit the facts of the offense, when asked if he believed that

“with all the weights that were added up,” the total weight of the methamphetamine

“went over ten grams,” appellant answered “[y]eah.” Appellant also admitted that he was

the “source” of at least ten or more grams of the methamphetamine that was provided to

his co-conspirators. Appellant further testified that S.G. “called me up and asked if I

could get him some drugs. I got him some. He took them down to . . . [T.H.], I guess it

was, and gave it to him. And he sold them. There was two different packages there.”

Appellant’s testimony is sufficient to establish that he agreed to give at least ten grams of

methamphetamine to S.G. and/or T.H. to sell to others and that he committed overt acts

in furtherance of that agreement.

       Finally, the supreme court has cautioned against guilty pleas being made through

the use of leading questions to which defendants provide only “yes” or “no” responses.

See, e.g., Lussier, 821 N.W.2d at 589 (“[W]e have cautioned against the use of

exclusively leading questions to establish a proper factual basis for a guilty plea.”);

Ecker, 524 N.W.2d at 717 (“[W]e again discourage the use of leading questions to

establish a factual basis.”). But pleas have not been deemed inaccurate simply because

they were made under such circumstances. See, e.g., Lussier, 821 N.W.2d at 589;




                                              5
Raleigh, 778 N.W.2d at 95-96; Ecker, 524 N.W.2d at 717. Therefore, appellant has not

satisfied his burden of proving that his guilty plea was inaccurate.

II.    Voluntariness

       The voluntariness requirement of a valid guilty plea “insures that a guilty plea is

not entered because of any improper pressures or inducements.” State v. Brown, 606

N.W.2d 670, 674 (Minn. 2000) (quotation omitted). To analyze the voluntariness

requirement, “the court examines what the parties reasonably understood to be the terms

of the plea agreement.” Raleigh, 778 N.W.2d at 96. “[T]he government may not produce

a plea through actual or threatened physical harm, or by mental coercion overbearing the

will of the defendant.” Ecker, 524 N.W.2d at 719 (quotation omitted).

       Appellant argues that because he was denied the opportunity to enter an Alford

plea, and “clearly stated throughout the plea hearing that he was only pleading guilty to

avoid possible Blakely consequences if found guilty at trial,” his guilty plea was “coerced

and involuntary and must be vacated.” We disagree. In analyzing the voluntariness of a

plea, we consider the defendant’s indications of voluntariness on the record. See Raleigh,

778 N.W.2d at 96 (rejecting claims of “extreme stress,” irrational thinking, and fear of

federal prosecution when defendant’s statements indicated voluntariness). And “the

normal trauma associated with being incarcerated . . . is not, by itself, a basis to claim

coercion.” Sykes v. State, 578 N.W.2d 807, 813 (Minn. App. 1998), review denied

(Minn. July 16, 1998).

       Here, appellant admitted on the record that he was “knowingly and voluntarily”

pleading guilty to the charged offense. He also acknowledged that he was pleading guilty


                                              6
in order to avoid a possible longer sentence based on the state’s decision to seek an

upward departure under the career offender statute. Although appellant claims he felt

“pressured” to take the plea, and in doing so claims he admitted facts of the offense

despite his “innocence,” appellant cannot dispute that he received the benefit of his

bargain—a lesser sentence than he might have received following a Blakely trial. In fact,

the alleged “pressure” did not come from the state, but instead was a product of the

potential consequences of being convicted of the charged offense and the potential for

sentencing as a career offender. Moreover, as the state points out, appellant still received

the benefit of his bargain, a guidelines sentence, despite absconding to Arizona in order

to avoid the consequences of the offense. See State v. Delk, 781 N.W.2d 426, 428 (Minn.

App. 2010) (“[A]ny sentence within the presumptive range for the convicted offense

constitutes a presumptive sentence.”), review denied (Minn. July 20, 2010); see also State

v. Jackson, 749 N.W.2d 353, 359 n.2 (Minn. 2008) (stating that all three numbers in the

sentencing cell “constitute an acceptable sentence based solely on the offense at issue”).

Accordingly, appellant cannot establish that his guilty plea was involuntary.

       Affirmed.




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