                         This opinion will be unpublished and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
                                    A14-1388

                             Robyn Lynn Hager, petitioner,
                                     Appellant,

                                           vs.

                                  State of Minnesota,
                                     Respondent.

                                 Filed March 30, 2015
                                       Affirmed
                                     Reilly, Judge

                              Steele County District Court
                                File No. 74-CR-10-1584

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

      Considered and decided by Ross, Presiding Judge; Kirk, Judge; and Reilly, Judge.

                        UNPUBLISHED OPINION

REILLY, Judge

      Appellant challenges the denial of his postconviction petition requesting

permission to withdraw his guilty plea to first-degree driving while impaired (DWI). He

argues that the district court erred by holding that his plea was voluntary and accurate.
Because the district court did not abuse its discretion by denying the petition for

postconviction relief, we affirm.

                                           FACTS

       Appellant Robyn Lynn Hager was charged with first-degree DWI and

misdemeanor reckless driving following a traffic incident that led to his arrest and a

search of his vehicle. The search revealed a tube with burnt wire meshing over one end,

which law enforcement believed was “a smoking device for controlled substances,

usually crack cocaine.” The device tested positive for the presence of a metabolite of

cocaine. Hager submitted to a urine test following his arrest, and the test showed the

presence of hydrocodone and a metabolite of cocaine.

       Hager accepted the state’s offer to plead guilty to first-degree DWI and a pending

charge in another file in exchange for the dismissal of the charge of reckless driving and

several other pending charges. The plea agreement provided that the state “would be free

to argue sentencing [for the DWI offense], but recommend no more than 62 months,”

which was the bottom-of-the-box presumptive commitment duration under the Minnesota

Sentencing Guidelines for a person with Hager’s criminal-history score. Hager signed a

plea petition affirming that, except for this agreement, “[n]o one—including my attorney,

any police officer, prosecutor, judge, or any other person—has made any promises to me

. . . in order to obtain a plea of guilty from me.”

       At the plea hearing, Hager confirmed that “[o]ther than the plea agreement stated

on the record here today, [nobody has] made any threats to [me] or promises to coerce




                                               2
[me] into entering into a plea of guilty.” He pleaded guilty to first-degree DWI, and the

district court began to inquire as to the factual basis for the plea as follows:

              COURT: And on or about March 25th, 2010, in Steele
              County, were you driving a motor vehicle?
              HAGER: I was, Your Honor.
              COURT: And prior to driving that vehicle, had you been
              consuming alcohol?
              HAGER: No, Your Honor.
              COURT: Or using controlled substances?
              HAGER: Yes.
              COURT: And what type of controlled substances?
              HAGER: All of those ones that I previously mentioned there:
              Vicodin, amoxicillin, Adderall, metoprolol, hydrochloro-
              thiazide. I think there either is called an Advair disk or
              something.
              COURT: And these were all prescription medications?
              HAGER: Yes, Your Honor.
              COURT: Being used in the manner prescribed by the
              physician?
              HAGER: Yes, Your Honor.
              ....
              COURT: Were you also using cocaine at the same time?
              HAGER: Not to my knowledge, Your Honor.

       Defense counsel then questioned Hager:

              COUNSEL: Mr. Hager, you would agree that you were given
              a test after the driving conduct in question; is that correct?
              HAGER: Yes.
              COUNSEL: And you would agree that that test came back
              positive for metabolites of cocaine; is that correct?
              HAGER: Yes.
              COUNSEL: And you would also agree that when you were
              stopped, there was a pipe found within the car; is that correct?
              HAGER: Yes.
              COUNSEL: And you would agree that based on the review
              of the file, that that came back as a positive for cocaine; is
              that correct?
              HAGER: I was not aware of that, but I would assume yes.
              ....



                                               3
              COUNSEL: Well, you understand that there would be people
              that would come in and testify [at trial] about your driving
              behavior that evening; is that correct?
              HAGER: Correct, Your Honor.
              COUNSEL: And you would also agree that those people
              would say that you were driving erratically; is that correct?
              HAGER: Correct.

       The prosecutor further questioned Hager:

              PROSECUTOR: Mr. Hager, you know that the result of the
              urine test that was taken showed cocaine and hydrocodone in
              your system; correct?
              HAGER: Correct.
              PROSECUTOR: And you don’t have any basis to dispute the
              presence of those substances in your system?
              HAGER: Not that I can believe everything you read on the
              internet, but what I had read was that the amoxicillin, alone,
              will show a false positive for cocaine, which is all prescribed
              stuff, so that’s my only concern.
              PROSECUTOR: Okay. You acknowledge, though, that the
              test showed the presence of cocaine?
              HAGER: The test did, yes.
              PROSECUTOR: Okay. And if you plead guilty, you’re
              waiving any affirmative defense you could raise regarding the
              interaction of some other drug; correct?
              HAGER: Correct.

       The district court accepted the plea to first-degree DWI and scheduled a

sentencing hearing.

       Hager later requested a continuance of sentencing to allow him to undergo back

surgery. Defense counsel told the district court:

              Mr. Hager knows he’s going to have to serve some prison
              time, but he’d like to be healthy prior to going into prison. . . .
              I don’t think that the Department of Corrections is going to
              pay for this kind of operation and to have him transported. . . .
                     . . . I think just humanitarily it might be nice for Mr.
              Hager to go and get his surgery done prior to having to do
              some time.


                                              4
Hager also addressed the district court, stating that he had a painful back injury and that

he would “prefer to just get this dealt with before I do go serve my time. . . . I do know

how the system runs, and the DOC, and you have to [write] a kite just to see the doctor

and take quite a few steps to get any relief.” The district court granted the request for a

continuance.

       At the rescheduled sentencing hearing, Hager again requested a continuance to

permit him to complete physical therapy and attend medical appointments before being

taken into custody. After the district court denied that request, the state recommended a

sentence of a 62-month commitment, and defense counsel stated that “there was an

agreement in terms of the sentence and we’d ask the Court to follow the plea agreement.”

The district court sentenced Hager to serve 62 months for first-degree DWI.

       After sentencing, Hager filed a petition for postconviction relief, requesting

permission to withdraw his guilty plea. He argued that his plea was involuntary because

it was induced by defense counsel’s unfulfilled promise to him that counsel would argue

for a dispositional sentencing departure of probation and chemical-dependency treatment.

Hager maintained that he would not have pleaded guilty “if [he] had known that [he]

would not have the opportunity to be placed on probation and entered into a treatment

program.” Hager also argued that his plea was inaccurate because the factual basis for

the plea was established through the use of leading questions and failed to show that he

drove after using a nonprescribed controlled substance.       The district court held an




                                            5
evidentiary hearing and then denied postconviction relief, determining that Hager’s plea

was both voluntary and accurate. This appeal follows.

                                     DECISION

       A denial of postconviction relief is reviewed to determine whether the district

court abused its discretion by making a decision that “is based on an erroneous view of

the law or is against logic and the facts in the record.” Riley v. State, 819 N.W.2d 162,

167 (Minn. 2012) (quotation omitted). Factual determinations are reviewed under a

clearly erroneous standard and will not be reversed unless they are not factually

supported by the record, but legal conclusions are reviewed de novo.        Id.   But an

assessment of the validity of a guilty plea presents a question of law. State v. Raleigh,

778 N.W.2d 90, 94 (Minn. 2010). To be valid, a plea must be accurate, voluntary, and

intelligent. Id.

I.     The district court did not err by determining that Hager’s guilty plea was
       voluntary.

       Hager argues that his guilty plea was involuntary because it was induced by a

promise by defense counsel that was never fulfilled. He contends that defense counsel

promised to argue for a dispositional sentencing departure and that he would not have

pleaded guilty had he known the argument would not be made and he would not have a

meaningful opportunity to be put on probation. The district court found that Hager’s

claim that defense counsel made such a promise was not credible or supported by the

record, and the district court concluded that Hager’s plea was voluntary.




                                            6
       The requirement that a plea be voluntary “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). “A guilty plea is involuntary when it rests ‘in any

significant degree’ on an unfulfilled or unfulfillable promise . . . .” State v. Batchelor,

786 N.W.2d 319, 324 (Minn. App. 2010) (quoting James v. State, 699 N.W.2d 723, 728

(Minn. 2005) (quotation omitted)), review denied (Minn. Oct. 19, 2010). “To determine

whether a plea is voluntary, the court examines what the parties reasonably understood to

be the terms of the plea agreement.” Raleigh, 778 N.W.2d at 96; see also James, 699

N.W.2d at 728 (stating that determining what the terms of a plea agreement are is a

factual inquiry to be resolved by the postconviction court).

       We agree with the district court that Hager’s contention that his plea was induced

by defense counsel’s promise to argue for a dispositional departure is not supported by

the record.   Hager agreed to plead guilty to first-degree DWI in exchange for the

dismissal of the reckless-driving charge and other pending charges and the state’s

recommendation of a sentence of no more than 62 months. The plea petition specifically

stated that, except for this agreement, “[n]o one—including my attorney, any police

officer, prosecutor, judge, or any other person—has made any promises to me . . . in

order to obtain a plea of guilty from me.” Hager confirmed during the plea hearing that

“[o]ther than the plea agreement stated on the record here today, [nobody has] made any

threats to [me] or promises to coerce [me] into entering into a plea of guilty.” A

possibility of a dispositional departure or probation was not mentioned in the plea

petition or during the plea hearing.


                                             7
       Moreover, when requesting a continuance of the sentencing hearing, defense

counsel told the district court that Hager “knows he’s going to have to serve some prison

time.” Hager requested a continuance of sentencing to allow him to undergo back

surgery before being sent to prison because he believed that he would not get appropriate

medical treatment while in prison, and he wanted to be healthy before entering prison.

Hager later requested another continuance to permit him to complete physical therapy

and attend medical appointments before being taken into custody. Hager’s statements

and requests contradict his claim that defense counsel promised to argue for a sentence of

probation rather than prison time and that he believed he had an opportunity to obtain a

dispositional departure. Cf. State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983) (stating

that the defendant’s assertion that defense counsel promised him probation was negated

by the record and that “[c]learly, therefore, the trial court was justified in finding that no

such promise had been made).

       Hager maintains that his position is supported by the affidavit that he filed with the

postconviction petition. In the affidavit, he asserted that “[b]efore my plea was entered,

my attorney . . . informed me that he would request that the court place me on probation

and allow me to enter treatment.” He further asserted that “I carefully considered the

risks of taking my case to trial, and my decision to take the plea was based primarily on

my belief that I had a meaningful chance to be placed on probation and to be entered into

treatment.”   Attached to Hager’s affidavit were six letters addressing his medical

conditions and treatment, education, background, personality, and the fact that he

completed a chemical-use assessment. He claimed in his affidavit that these letters were


                                              8
provided to defense counsel before sentencing to support a request for a dispositional

departure.

       At the evidentiary hearing, Hager relied only on his postconviction documents to

support his position; he did not call his former defense counsel to testify or provide an

affidavit from his former defense counsel. Given the information in the record, the

district court found that the assertions made in Hager’s affidavit were unsupported,

unpersuasive, and not credible. See Minn. Stat. § 590.04, subd. 3 (2014) (stating that a

petitioner for postconviction relief bears the burden of proving the facts alleged in the

petition “by a fair preponderance of the evidence”); Sanchez-Diaz v. State, 758 N.W.2d

843, 846 (Minn. 2008) (stating that allegations made in a postconviction petition “must

be more than argumentative assertions without factual support”). We give “considerable

deference” to a postconviction court’s credibility determinations. McDonough v. State,

827 N.W.2d 423, 426 (Minn. 2013) (quotation omitted). The district court did not clearly

err by finding that Hager was not induced to plead guilty by an unfulfilled promise by

defense counsel and did not err by holding that Hager’s plea was voluntary.

II.    The district court did not err by holding that Hager’s guilty plea was
       accurate.

       Hager contends that his plea was inaccurate because the factual basis for the plea

did not establish that he drove with a nonprescribed schedule I or II controlled substance

in his body and because the factual basis was established through the use of leading

questions. The district court determined that a proper factual basis was established and

that the use of leading questions did not render Hager’s plea inaccurate.



                                             9
       The requirement that a plea be accurate “protects a defendant from pleading guilty

to a more serious offense than that for which he could be convicted if he insisted on his

right to trial.” Raleigh, 778 N.W.2d at 94. A plea must be supported by a proper factual

basis to be accurate. Id. “The factual basis must establish sufficient facts on the record

to support a conclusion that defendant’s conduct falls within the charge to which he

desires to plead guilty.” Munger v. State, 749 N.W.2d 335, 338 (Minn. 2008) (quotation

omitted).

       Hager pleaded guilty to first-degree DWI for driving, operating, or being in

physical control of a motor vehicle when his “body contain[ed] any amount of a

controlled substance listed in schedule I or II, or its metabolite, other than marijuana or

tetrahydrocannabinols.” Minn. Stat. § 169A.20, subd. 1(7) (2008). Hager’s urine test

showed the presence of hydrocodone and a metabolite of cocaine. Cocaine is a schedule

II controlled substance. Minn. Stat. § 152.02, subd. 3(1)(d) (2008).1

       During the plea hearing, Hager admitted that the urine test showed the presence of

a metabolite of cocaine in his body. He also acknowledged that the tube with burnt wire

meshing discovered in his vehicle tested positive for the presence of a metabolite of

cocaine. While he mentioned that he had read that his prescribed amoxicillin could show

a false positive for cocaine, he agreed that he was pleading guilty and was waiving any

1
  Hydrocodone is also a schedule II controlled substance, Minn. Stat. § 152.02, subd.
3(1)(a) (2008), but Hager claimed that he was using Vicodin according to the terms of a
valid prescription, which provided an affirmative defense to driving with hydrocodone in
his body. See Minn. Stat. § 169A.46, subd. 2 (2008) (“If proven by a preponderance of
the evidence, it is an affirmative defense to a violation of section 169A.20 subdivision 1,
clause (7) . . . that the defendant used the controlled substance according to the terms of a
prescription issued for the defendant . . . .”).

                                             10
defense that the urine test’s results were caused by another drug. We conclude that the

plea colloquy established sufficient facts to support a conclusion that Hager drove a

motor vehicle with cocaine or a metabolite of cocaine in his body. 2

       Hager also contends that his plea was inaccurate because the factual basis was

established through the use of leading questions followed by his one-word responses.

The supreme court has expressed a preference for the development of factual bases

through defendants’ own words and has criticized the use of leading questions to which

defendants provide only “yes” or “no” responses. See, e.g., Lussier v. State, 821 N.W.2d

581, 589 (Minn. 2012) (“We have previously observed that the typical way a district

court satisfies the accuracy requirement is by asking the defendant to express in his own

words what happened. And we have cautioned against the use of exclusively leading

questions to establish a proper factual basis for a guilty plea.” (alteration, quotations, and

citation omitted)); State v. Ecker, 524 N.W.2d 712, 717 (Minn. 1994) (“[W]e again

discourage the use of leading questions to establish a factual basis.”). But guilty pleas

have not been deemed inaccurate solely because the factual bases were established

through the use of leading questions. See, e.g., Raleigh, 778 N.W.2d at 95-96; Ecker, 524

N.W.2d at 717; Barnslater v. State, 805 N.W.2d 910, 914 (Minn. App. 2011) (“The use

of leading questions is therefore disfavored, but it does not by itself invalidate a guilty

plea.”). The district court did not err by holding that Hager’s guilty plea was accurate



2
 Because we conclude that the factual basis was sufficient to support the guilty plea, we
need not reach Hager’s alternative argument that the plea was not accurate even if it is
construed as an Alford plea.

                                             11
and supported by a proper factual basis and did not abuse its discretion by denying the

petition for postconviction relief.

       Affirmed.




                                          12
