                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2012).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A13-0977

                                      State of Minnesota,
                                         Respondent,

                                              vs.

                                  Thomas Joseph McManus,
                                        Appellant.

                                  Filed November 24, 2014
                                  Affirmed; motion granted
                                        Reilly, Judge

                                Chisago County District Court
                                   File No. 13-CR-10-298

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

Janet Reiter, Chisago County Attorney, Beth A. Beaman, Assistant County Attorney,
Center City, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Renée Bergeron, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and Reilly,

Judge.

                           UNPUBLISHED OPINION

REILLY, Judge

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

to withdraw his guilty plea to one count of theft of a motor vehicle because the plea was
not voluntary, intelligent, or accurate and because the district court violated the parties’

unqualified plea agreement. Appellant also moves to strike a portion of respondent’s

brief. We grant appellant’s motion to strike and affirm the district court’s order.

                                          FACTS

       Shortly after midnight on March 15, 2010, White Bear Lake police officer Ryan

George pulled over a 2001 Buick driven by McManus. Officer George ran the Buick’s

vehicle identification number and discovered that the Buick was stolen. After informing

McManus and the Buick’s passenger, McManus’s grandson, that the Buick was stolen,

the grandson told the officer that McManus has previously taken cars from dealerships to

test drive and not returned them. He also told Officer George that he could not believe

that his grandfather had “done this again.” The state charged McManus with theft of a

motor vehicle in violation of Minn. Stat. § 609.52, subds. 2(17), 3(3)(d)(v) (2008). On

August 1, 2012, McManus pleaded guilty to one count of felony theft of a motor vehicle.

The terms of the plea agreement were as follows:           McManus’s other charges in a

different file would be dismissed, there would be a stay of execution, there would be no

additional jail time, restitution would be ordered, and McManus would be subject to

probation for up to five years. The district court scheduled a sentencing hearing for

September 24, 2012. McManus did not appear at the hearing, and his counsel indicated

that his absence was due to medical procedures.

       Sentencing occurred on March 6, 2013. Due to McManus’s failure to cooperate

with the presentence investigation (PSI) and his four prior theft-related felony

convictions, the state requested that the district court follow the PSI report’s


                                             2
recommendations and requested 60 days of local confinement.             The district court

sentenced McManus to 60 days in the Chisago County jail, 5 years of probation, and

ordered restitution. McManus was 76 years old at the time he entered into the plea

agreement.

       On June 5, 2013, McManus filed a notice of appeal. We stayed his appeal pending

postconviction proceedings. During the postconviction proceedings, the district court

held an evidentiary hearing on McManus’s motion seeking to withdraw his plea on

February 5, 2014. The district court denied McManus’s petition for postconviction relief

on March 11, 2014, and this court dissolved the stay on April 22, 2014. This appeal

follows.

                                     DECISION

                                             I.

       When an appellant files a direct appeal that is stayed pending postconviction

proceedings, we apply the standard of review for direct appeals. Santiago v. State, 644

N.W.2d 425, 439 (Minn. 2002). “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 we review de novo. Id. We defer to the postconviction court’s

credibility assessments. Opsahl v. State, 710 N.W.2d 776, 782 (Minn. 2006).

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

is necessary to correct a manifest injustice. Raleigh, 778 N.W.2d 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


                                             3
three requirements, the plea is invalid. State v. Theis, 742 N.W.2d 643, 650 (Minn.

2007). McManus challenges the voluntariness, intelligence, and accuracy of his plea.

      A.     Voluntariness

      McManus argues that his plea was not voluntary because he was ill and under the

influence of medication at the time of the plea hearing. 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). 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, and

considers all the relevant circumstances surrounding the plea. State v. Danh, 516 N.W.2d

539, 544 (Minn. 1994).

      At the postconviction hearing, McManus testified that, during the sentencing

hearing, he did not feel well and was experiencing “[a]nxiety and high level [of] chest

pain during the proceedings.” In its order denying relief, the district court noted that,

although McManus claimed to suffer from health issues and was taking medication when

he entered the plea, “he fail[ed] to offer any medical records, affidavits, correspondence

from his treating physicians, or any other corroborating evidence besides” that of his

sister’s testimony. Moreover, the district court found that it had “the opportunity to

observe [McManus] throughout both the plea hearing and sentencing [hearing] and notes

that, based upon this Court’s personal observations, [McManus’s] testimony lacks any

credibility whatsoever.”   At the end of the evidentiary hearing, the district court

explained


                                            4
              [I]t’s not very often you see a 76-year-old man with 17 felony
              convictions, including a conviction for habitual criminality.
              It just doesn’t happen that often, and because of that these
              events stand out very clearly in my head. . . . And I want to be
              very clear on that. I do remember very distinctly Mr.
              McManus making that plea and he being completely coherent
              and clear and waiving his rights intelligently. So I want to
              add that to the record.

       McManus claims that this finding is clearly erroneous because the record does not

support it.   Although, as McManus accurately notes, he only gave “yes” or “no”

responses at the plea hearing, the district court’s assessment is supported by other record

evidence.

       At the plea hearing, the following exchange took place between McManus and his

attorney:

              [ATTORNEY]: Mr. McManus, I am showing you a
              document entitled a petition to enter a plea of guilty; do you
              recognize this?
              [MCMANUS]: Yes.
              [ATTORNEY]: You and I went over this line by line before
              we came into Court this afternoon?
              [MCMANUS]: Yes.
              [ATTORNEY]: Did you sign the back of the last page?
              [MCMANUS]: Yes.
              [ATTORNEY]: Did you do that to indicate you understood
              all of the rights?
              [MCMANUS]: Yes.
              [ATTORNEY]: You’re willing to give up all those rights?
              [MCMANUS]: Yes.
              [ATTORNEY]: And you’re willing to do that because in
              exchange for giving up your rights, you’re being offered a
              plea agreement; and you want to take advantage of it?
              [MCMANUS]: That’s right.
              [ATTORNEY]: Do you have any questions for either myself
              or the Judge at this time?
              [MCMANUS]: No.



                                             5
In addition, the plea petition included a paragraph that listed the drugs McManus was

currently taking—“blood pressure, heart, pain meds” and that he had not been treated for

a nervous or mental condition. Lastly, at the sentencing hearing, McManus articulately

described at length his assessment of the situation and his charge.

       McManus also contends that he was under severe stress and anxiety at the time of

the plea hearing and therefore was unable to understand the plea negotiations. The state

relies on Williams v. State, 760 N.W.2d 8 (Minn. App. 2009), for the proposition that

stress at the time of pleading and a limited period in which a defendant has to accept a

plea do not provide the necessary factual support to invalidate a plea. We agree.

       In Williams, the appellant entered a Norgaard plea to assault and terroristic-threats

charges. 760 N.W.2d at 10. On appeal, appellant alleged that her plea was not voluntary

because, at the time of the plea, she was depressed, under duress, ill-advised, and only

had a short time to decide whether to accept the plea. Id. at 14. This court rejected the

appellant’s claim that her plea was involuntary because she did not submit any factual

support for her allegations, and her plea petition acknowledged that she had not been

treated for any nervous or mental conditions, that she was satisfied with her attorney, and

no one had threatened her to enter a guilty plea. Id. at 14-15. Here, like in Williams, the

plea petition shows that McManus indicated that he was not being treated for a nervous

or mental condition, and his list of medications did not include anxiety medication.

       Based on the record, we are satisfied that McManus understood the terms of the

plea agreement and acknowledged that he pleaded guilty without threats or coercion.

Accordingly, McManus’s involuntary-plea argument is unavailing.


                                             6
      B.     Intelligence

      McManus argues that the intelligence requirement of the plea agreement was

lacking because he had “very little” contact with his attorney prior to entering a plea in

this case. The intelligence requirement ensures that a defendant understands the charges

against him, the rights he is waiving, and the consequences of his plea.            State v.

Farnsworth, 738 N.W.2d 364, 372 (Minn. 2007). “‘Consequences’ refers to a plea’s

direct consequences, namely the maximum sentence and fine.” Raleigh, 778 N.W.2d at

96.

      McManus claims that the district court’s finding that he fully understood the plea

agreement is not supported by sufficient evidence because there is no proof in the record

that his counsel discussed defenses, the guideline sentence, or the consequences of failing

to complete the PSI. Although the specific consequences of failing to complete the PSI

were not addressed on the record, McManus’s attorney adequately counseled him on the

plea agreement.

      When asked about his plea petition process at the postconviction hearing,

McManus’s attorney stated:

             I sit down with [my clients]. I go through [the plea petition].
             I start out by filling out the information that’s required . . . . I
             think there’s probably four or five questions on the plea
             petition that goes over whether they’ve been ill recently,
             whether they’re taking medications, whether they’ve seen a
             psychiatrist, whether they’ve been treated for mental issues.
             So I always go through that. Then I go into their actual trial
             rights, and generally what I do is I’ll say do you understand
             you have the right to have a trial? And then we go into
             whether they want it to be a jury trial, a court trial, how the
             trial would happen with jurors.


                                              7
                     I talk about how the case—we always talk about what
              they would do to prove the case. In other words, we could
              call certain witnesses, we could cross-examine those
              witnesses. I explained what cross-examination is. I say that
              we could subpoena witnesses. We go through if there’s any
              evidence in the case, and that probably would have been done
              before I went through the plea petition. I would ask the client
              what he would have for witnesses, if there are any. And then
              if they understand all those rights, I think those are
              numbers—I can’t remember in the plea petition, but there’s
              like seven or eight of them in a row. And then, you know, we
              talk about the things that you would have to do after you plea,
              you know, in terms of the PSI.

       The plea petition specified that McManus agreed that he had sufficient time to

discuss the case with his attorney, that his attorney discussed possible defenses with him,

that his attorney had fully advised him, and what maximum penalty could be imposed for

the crime. Most importantly, the petition further provided that if McManus did “not

cooperate with the Pre-Sentence Investigation . . . the plea agreement, including any

agreement or cap on time to serve will be null and void and my plea will be considered a

straight plea and I understand I may be sentenced accordingly.” McManus signed the

petition and told the district court that he went over the petition line-by-line with his

attorney and understood all the rights that he was giving up. The record shows that

McManus was informed of the consequences for not cooperating with the PSI.

Therefore, McManus’s plea was intelligent.

       C.     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


                                             8
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). The factual basis of a plea,

however, becomes “inadequate when the defendant makes statements that negate an

essential element of the charged crime because such statements are inconsistent with a

plea of guilty.” Id. at 350.

       McManus challenges the accuracy of his plea, claiming that the factual basis for

the plea was improperly established through the use of leading questions. Typically, the

district court can satisfy the accuracy requirement “by asking the defendant to express in

his own words what happened.” Lussier, 821 N.W.2d at 589. The supreme court,

however, has cautioned against the exclusive use of leading questions to establish the

factual basis for the plea. Id.; see, e.g., Ecker, 524 N.W.2d at 716 (“The trial judge must

be particularly attentive to situations in which a defendant is pleading guilty and is asked

only leading questions by counsel.”). But the failure of the district court to “elicit proper

responses” does not require plea withdrawal if the record “contains sufficient evidence to

support the conviction.” Raleigh, 778 N.W.2d at 94. In determining whether the record

contains sufficient evidence, this court may consider the plea petition, the plea colloquy,

and any other evidence in the record. See Lussier, 821 N.W.2d at 588-89.

       To prove a charge of motor-vehicle theft, the state must show that the defendant

(1) took or drove a motor vehicle, (2) without the consent of the owner, (3) knowing or

having reason to know that the owner did not give consent. Minn. Stat. § 609.52, subd.


                                              9
2(a)(17) (2010). The record confirms the prosecutor established the factual basis with

leading questions.    Although the factual basis was established using a “disfavored

format,” the testimony and complaint establish the elements of motor-vehicle theft. See

Raleigh, 778 N.W.2d at 96-97.

       The complaint stated that on March 15, 2010, a police officer pulled over a 2001

Buick. A car dealership in Chisago County had previously reported this vehicle stolen.

During the plea hearing, McManus admitted to being in possession of the Buick on

March 15 without the authority or consent from the dealership. Finally, McManus does

not argue that the plea failed to establish an element of the crime but only challenges the

format of the plea. Because the record establishes a sufficient factual basis to support the

conviction, withdrawal is not warranted on this ground.

                                            II.

       McManus contends that he has the right to withdraw his plea agreement because

the district court’s 60-day jail sentence violated the parties’ unqualified promise.

Generally, after a court accepts a plea containing an agreement on sentencing, the terms

of the agreement should be fulfilled. State v. Pearson, 479 N.W.2d 401, 405 (Minn. App.

1991), review denied (Minn. Feb. 10, 1992). If a “a plea rests in any significant degree

on a promise or agreement of the prosecutor, so that it can be said to be part of the

inducement or consideration, such promise must be fulfilled.” Brown, 606 N.W.2d at

674.

       A court, however, is not required to honor a plea agreement that has been

breached. State v. Rud, 372 N.W.2d 434, 435 (Minn. App. 1985). Further, a defendant


                                            10
who breaches a plea agreement after being warned that such a breach would result in a

longer sentence is not entitled to specific performance. Id. (affirming sentence exceeding

sentence provided for in plea agreement when defendant violated plea agreement and had

been warned that violation would result in execution of sentence), review denied (Minn.

Sept. 26, 1985). If an inducement in a plea agreement is not honored, the guilty plea may

be withdrawn. State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998). “In determining

whether a plea agreement was violated, courts look to what the parties to the plea bargain

reasonably understood to be the terms of the agreement.” Brown, 606 N.W.2d at 674

(quotations omitted).   Issues involving the interpretation and enforcement of plea

agreements are issues of law that we review de novo. Id.

      At the plea hearing, counsel for McManus told the district court that, “The

agreement would be that there would be no further executed jail to be served. So my

client at sentencing would receive credit for whatever time it is, and that would be the

end of the actual jail time to serve.”      But, the plea petition language contradicts

McManus’s claim that this was an unqualified promise. The plea petition provided:

             I have been told by my attorney and understand:

             ...

             b. If I, defendant, do not cooperate with the Pre-Sentence
             Investigation, Chemical Use Assessment, Domestic Violence
             Inventory; if I fail to remain law abiding or if I fail to timely
             appear for the scheduled Sentencing Hearing, the plea
             agreement, including any agreement or cap on time to serve
             will be null and void and my plea will be considered a
             straight plea and I understand I may be sentenced
             accordingly.



                                            11
(Emphasis added.) In addition, the district court engaged in the following colloquy with

McManus:

              [COURT]: I’ll also find that you admitted sufficient facts to
              support the plea but I am going to hold acceptance of the plea
              and order a presentence investigation and have you back.
              You need to cooperate fully with this, Mr. McManus, we
              need to have that investigation in hand prior to your
              sentencing.    So make sure when the Department of
              Corrections contacts you, that you respond. All right.
              [MCMANUS]: Yes.

       The record silences McManus’s argument that no additional jail time was an

unqualified promise. The record shows that the district court’s acceptance of the plea

agreement was contingent on McManus’s cooperation during the PSI and sentencing.

Not only did McManus not complete the PSI, but he failed to appear at the initial

sentencing hearing. At the rescheduled sentencing hearing, counsel for McManus did not

argue that the imposition of 60 days in jail violated the plea agreement; rather, he argued

for reduced jail time due to McManus’s age and health issues. Here, it is clear that

McManus was required under the plea agreement to cooperate with the PSI and appear at

sentencing.

       McManus also claims that he was not “adequately warned of the consequences of

not complet[ing] the PSI.” At the postconviction hearing, McManus’s district court

counsel testified that he discussed with McManus before the plea the “things that [he]

would have to do after the plea, you know, in terms of the PSI.” Likewise, the district

court told McManus that the plea would not be accepted unless he fully cooperated with




                                            12
the PSI.1 Thus, these colloquies coupled with the plea petition provided proper notice

regarding McManus’s required cooperation with the PSI. See Oldenburg v. State, 763

N.W.2d 655, 659 (Minn. App. 2009) (holding that appellant had adequate notice of plea

requirements when it was set forth in the plea petition but not discussed at the plea or

sentencing hearings). Accordingly, we conclude that withdrawal of McManus’s guilty

plea is not required.

                                            III.

       McManus moved to strike a portion of the state’s brief, claiming the portion is not

supported by facts in the record. “The papers filed in the trial court, the exhibits, and the

transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”

Minn. R. Civ. App. P. 110.01.        And “[e]ach statement of a material fact shall be

accompanied by a reference to the record.” Minn. R. Civ. App. P. 128.02, subd. 1(c).

The general rule is that an appellate court may not base its decision on matters outside the

record on appeal, Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988), and we “will strike

references to such matters from the parties’ briefs,” Stageberg v. Stageberg, 695 N.W.2d

609, 613 (Minn. App. 2005), review denied (Minn. July 19, 2005).

       An independent review of the record supports McManus’s contention that these

statements concern extra-record material. The record shows that neither McManus’s

counsel nor the state’s prosecuting attorney testified at any of the hearings about the



1
 At the sentencing hearing, the district court implicitly accepted McManus’s guilty plea
and entered judgment of conviction based upon McManus’s admissions at the plea
hearing.

                                             13
hospital stay referenced in the state’s brief. Because these statements are outside the

record, they are stricken from the state’s brief.

       Affirmed; motion granted.




                                              14
