                        This opinion will be unpublished and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
                                   A15-0022
                                   A15-0626

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                  Lester Ray Wiley,
                                     Appellant.

                               Filed January 11, 2016
                                      Affirmed
                                  Klaphake, Judge *

                           Hennepin County District Court
                             File No. 27-CR-14-15521

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Reyes, Judge; and

Klaphake, Judge.




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                         UNPUBLISHED OPINION

KLAPHAKE, Judge

       Appellant Lester Ray Wiley challenges his conviction of second-degree burglary,

arguing that (1) his guilty plea was invalid because he did not admit to the elements of the

offense, and (2) the requirement that he pay $695 in restitution materially changed the

terms of the plea agreement. Because the record shows that appellant did admit to the

elements of the offense and that he was notified that he could be ordered to pay restitution,

we affirm.

                                     DECISION

       “To be constitutionally valid, a guilty plea must be accurate, voluntary, and

intelligent. A defendant bears the burden of showing his plea was invalid. Assessing the

validity of a plea presents a question of law that [an appellate court] review[s] de novo.”

State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010) (citations omitted). Following entry of

a guilty plea, “the court must allow a defendant to withdraw a guilty plea upon a timely

motion and proof to the satisfaction of the court that withdrawal is necessary to correct a

manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A reviewing court applies an abuse-

of-discretion standard of review to a district court’s application of the manifest-injustice

standard. See Carey v. State, 765 N.W.2d 396, 400 (Minn. App. 2009) (reviewing

postconviction court’s application of manifest-injustice standard for abuse of discretion),

review denied (Minn. Aug. 11, 2009).

       Appellant argues that his plea is invalid because he did not admit to all the elements

of the offense to which he pleaded guilty. A guilty plea must include facts to establish a


                                             2
“proper factual basis” for the plea. Raleigh, 778 N.W.2d at 94. “There must be sufficient

facts on the record to support a conclusion that defendant’s conduct falls within the charge

to which he desires to plead guilty.” Lussier v. State, 821 N.W.2d 581, 588 (Minn. 2012)

(quotation omitted). The burglary offense to which appellant pleaded guilty is defined as

follows:

                      (a) Whoever enters a building without consent and with
              intent to commit a crime, or enters a building without consent and
              commits a crime while in the building, either directly or as an
              accomplice, commits burglary in the second degree . . ., if . . .
                            (4) when entering or while in the building, the
              burglar possesses a tool to gain access to money or property.

Minn. Stat. § 609.582, subd. 2 (2012); see 10A CRIMJIG 17.09 (2006) (listing elements

of the offense of second-degree burglary). Appellant asserts that his failure to admit

possessing a burglary tool invalidates his guilty plea.

       At his plea hearing, appellant admitted that he entered the burglarized building with

intent to steal some items. He also twice admitted that a tool was used to gain access to

the building and that he was not alone in committing the crime, but he denied possessing

the burglary tool himself. Police had seen appellant holding the door open at the front

entrance of the building, and he was wearing all black clothes, including a black mask and

black gloves. He was apprehended at another entrance as he ran out the door. At that door,

police found a waste basket containing a second mask and set of gloves, and a screwdriver

and flashlight. Police also found displaced computers and cords, and fresh pry marks on a

building door. While appellant’s admissions may not establish that he personally carried

a burglary tool, they are sufficient to establish his culpability for possessing a burglary tool



                                               3
because he is culpable for the actions of his co-burglar. See State v. Burgess, 319 N.W.2d

418, 419 (Minn. 1982) (rejecting a robbery getaway driver’s claim of insufficiency of

evidence when the driver acted in concert with other robbers to commit the crime). All of

these circumstances support the accuracy of appellant’s plea. See Raleigh, 778 N.W.2d at

94 (stating that “a defendant may not withdraw his plea simply because the court failed to

elicit proper responses if the record contains sufficient evidence to support the

conviction”).

       While we affirm the validity of appellant’s plea, we once again remind the parties

that a guilty plea should not be based on facts that are established by asking the defendant

only leading questions. See id. at 94-96 (stating that “[t]he court should be particularly

wary of situations in which the factual basis is established by asking a defendant only

leading questions,” but confirming the accuracy of the plea). Had appellant been asked to

describe the crime in his own words, any confusion regarding the material facts could have

been resolved at that time, and not upon appeal to this court.

       Appellant next argues that the district court erred by ordering $695 in restitution

because restitution was not contemplated in his plea agreement or mentioned at sentencing.

A district court may order restitution in addition to an executed prison term when a person

is convicted of a felony. Minn. Stat. § 609.10, subd. 1(5) (2012). A district court has

discretion to order restitution, and this court will reverse only for an abuse of that

discretion. State v. Meredyk, 754 N.W.2d 596, 602 (Minn. App. 2008).




                                             4
       The plea bargain between the parties did not address restitution, nor was restitution

for the burglary discussed at the plea hearing. 1 At sentencing, however, the state asked “to

reserve restitution” for 90 days on other pending charges that were dismissed in accordance

with the plea bargain. The district court denied appellant’s request to dismiss the restitution

order, ruling that Minn. Stat. § 611A.04, subd. 1(a) (2012), permits the reservation of

restitution at sentencing. The statute also allows the district court to reserve the issue of

restitution at sentencing “if the victim’s affidavit or other competent evidence submitted

by the victim is not received in time.” Id.

       We conclude that the district court’s decision to order restitution of $695 was a

proper exercise of its discretion because the amount of restitution ordered did not materially

alter the plea agreement, and the sentencing hearing transcript implicitly shows that

restitution was “on the table” at that time. See State v. Anderson, 507 N.W.2d 245, 247

(Minn. App. 1993) (affirming an order of restitution when “by implication, restitution was

potentially involved” because the district court ordered a victim impact statement before

sentencing, and presentencing documents recommended restitution), review denied (Minn.

Dec. 22, 1993); State v. Noreen, 354 N.W.2d 77, 78-79 (Minn. App. 1984) (remanding

when district court had ordered restitution of $2,000 to victims of sexual assault that was

not contemplated in plea agreement, and the restitution amount “created a material change


1
  Respondent suggests that an earlier hearing may have addressed restitution, but that
appellant did not order a transcript of that hearing. The record shows only that an earlier
hearing was held at which respondent offered the same plea terms that were eventually
accepted by appellant, and that the matter was continued to permit additional discovery
requested by appellant. The record does not suggest that the earlier hearing addressed
restitution.

                                              5
in the plea bargain”). Once again, we note that the necessity for this appeal could have

been averted had the plea petition, along with all of the other notices given to appellant at

that time, explicitly notified appellant that at sentencing he could be ordered to pay

restitution.

       Affirmed.




                                             6
