State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0715

State of Minnesota,
Respondent,

vs.

Justin Matthew King,
Appellant.

Filed March 20, 2017
Affirmed
Smith, Tracy M., Judge

Wadena County District Court
File No. 80-CR-15-523

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

Kyra L. Ladd, Wadena County Attorney, Jose ph P. Glasrud, Assi stant County Attorney,
Wadena, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Pr esiding Judge; Reilly , Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
On appeal from his conviction of viola ting a harassment restraining order (HRO),
appellant seeks to withdraw his guilty plea on the ground that the plea is constitutionally

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invalid because his plea colloquy did not present a sufficient factual basis to establish that
he contacted the protected person and that he knew of the HRO. Because appellant’s guilty
plea was constitutionally valid, we affirm.
FACTS
Appellant Justin Matthew King was charged with violating an HRO. King pleaded
guilty pursuant to a plea agreem ent. To establish the factua l basis for the guilty plea, the
prosecutor and King had the following exchange at the plea hearing:
Q. Mr. King, did you have at the time of June 21, 2015, did
you have a harassment restraini ng order that restrained you
from having any contact with [the protected person]?
A. Yes.
Q. And were you aware of that?
A. I was—I was not—I was aware of it, but I did not remember
that I did have it at that time so—
Q. But you had been made aw are of it, you just didn’t
remember it was there?
A. Yes.
Q. Between the dates of June 21st and June 23rd, did you
make phone calls to [the protected person]?
A. Yes.
Q. And what [was] the nature of these phone calls?
A. Just trying to get this cleared up. I had a conversation with
an officer prior to the phone calls in Wadena County where he
had called me and I had made an incidental call to her and he
had called me and he never called me back. I returned several
phone calls to him and then I tried to get a hold of her to find
out what was going on and get the situation figured out.

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Q. Okay. But you don’t disput e that you did in fact have a
harassment restraining order that said you were not supposed
to make contact with her, and you did attempt to make contact
with her?
A. Yes.
The prosecutor asked additional questions to establish the remaining elements of the crime.
The district court found that there was “a sufficient factual basis to support the plea.”
King was convicted of a felony violati on of an HRO under Minn. Stat. § 609.748,
subd. 6(d)(1) (2014). The district court sentenced King to 18 months in prison but stayed
the execution of the sentence and placed King on probation for five years.
King appeals.
DECISION
King argues that his conviction must be reversed and the matter must be remanded
to allow him to withdraw his guilty plea because his plea collo quy did not present a
sufficient factual basis to establish two elements of the offense, making his plea inaccurate
and therefore constitutionally invalid.
We review the validity of a guilty plea de novo. State v. Raleigh, 778 N.W.2d 90,
94 (Minn. 2010). “To be constitutionally valid, a guilty plea must be accurate, voluntary,
and intelligent.” Id. For a plea to be accu rate, it must be supported by a factual basis
sufficient to establish the el ements of the offense. State v. Ecker, 524 N.W.2d 712, 716
(Minn. 1994). If the defendant makes statements that negate an essential element of the
offense, the factual basis for the plea is inadequate. State v. Iverson, 664 N.W.2d 346, 350
(Minn. 2003). If a plea is entered without an adequate factual basis, the district court must

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permit the plea to be withdrawn. State v. Theis, 742 N.W.2d 643, 650 (Minn. 2007). “[A]
defendant may not withdraw his plea ‘if the record contains sufficient evidence to support
the conviction.’” Lussier v. State, 821 N.W.2d 581, 589 (Minn. 2012) (quoting Raleigh,
778 N.W.2d at 94). “A defendant bears th e burden of showing his plea was invalid.”
Raleigh, 778 N.W.2d at 94.
I. The record establishes that King contacted the protected person.
King asserts that, because he testified at the plea hearing that he made phone calls
to the protected person but not that she answered his phone calls, the record establishes
merely that he attempted to violate the HRO and not that he actually completed a violation.
The state counters that King’s conduct, as admitted to in the plea colloquy and as
supplemented by the criminal complaint, was sufficient to constitute “contact” in violation
of the HRO. We agree with the state.
A plea must be supported by suffi cient evidence in the record. Lussier, 821 N.W.2d
at 589. “[T]he plea petition and colloquy ma y be supplemented by other evidence to
establish the factual basis for a plea.” Id.; see State v. Trott, 338 N.W.2d 248, 252 (Minn.
1983) (concluding that the en tire record, including the co mplaint, was sufficient to
establish a factual basis for a guilty plea).
At the plea hearing, King admitted that he “ma[d]e phone calls to [the protected
person].” The complaint states that the protected person told police that “she has been
receiving several calls and voice messages from [King]” and show ed an officer her
cellphone, which “listed several missed calls from [King’s phone number]” as well as “two
voice messages that were left by [King] on June 22, 2015.” The complaint also states that

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an officer listened to the two voice messages, “which indicated that [King] was upset with
[the protected person] for filing a harassment restraining order.” Together, this evidence
demonstrates that even though the protected person did not answer the phone, which would
have enabled King to speak to her directly, King nonethele ss initiated unwanted contact
that ultimately reached the protected pers on through her cellphone. The complaint,
combined with King’s admission that he made phone calls to the protected person, presents
a sufficient factual basis to establish that Ki ng contacted the protect ed person within the
meaning of the HRO and thus that he did no t merely attempt but in fact completed a
violation.
II. The plea colloquy establishes that King knew of the HRO.
King also argues that he negated the elem ent of knowledge of the HRO by stating
in his plea colloquy that, altho ugh he had been made aware of the HRO, he momentarily
forgot that it existed when he made phone calls to the protected person.
The state argues as a preliminary matter th at, because the legislature amended the
statute to remove the word “knowingly” from the felony provision in 2013, the defendant’s
knowledge of the HRO is no longer an element of the crime. See 2013 Minn. Laws ch. 47,
§ 4. We review questions of statutory construction de novo. Lee v. Lee, 775 N.W.2d 631,
637 (Minn. 2009). We must give effect to th e plain language of an unambiguous statute.
State v. Campbell, 814 N.W.2d 1, 4 (Minn. 2012).
Subdivision 6(a) of the restraining-order statute states that “[a] person who violates
a restraining order issued u nder this section is subject to the penalties provided in
paragraphs (b) to (d).” Minn. Stat. § 609.748, subd. 6(a) (2014). Paragraph (b) defines the

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crime and establishes a misdemeanor-level penalty, stating, “Except as otherwise provided
in paragraphs (c) and (d), when a . . . restraining order is granted under this section and the
respondent knows of the order , violation of the order is a misdemeanor.” Id., subd. 6(b)
(2014) (emphasis added). Paragraph (c) elevat es the crime to a gross misdemeanor if it
occurs within ten years of a previous qualified offense. Id., subd. 6(c) (2014).
Paragraph (d), under which King was convicted, elevates the crime to a felony if any one
of six listed circumstances exists. Id., subd. 6(d) (2014). One ci rcumstance is violating
the order within ten years of two or more previous domestic-violence convictions. Id.,
subd. 6(d)(1).
The state urges the court to interpret pa ragraphs (b), (c), and (d) as independent
provisions creating separate crimes without reference to one another, which would mean
the requirement that the person “knows of the order” in (b ) does not apply to (d). The
state’s interpretation would allow a person to be convicted of a felony HRO-violation even
if he did not know the HRO existed. Bu t beginning paragraph (b) with “Except as
otherwise provided in paragraphs (c) and (d)” indicates that (b) is the general definition of
the base-level crime, while paragraphs (c) and (d) contain additional circumstances that,
when added to the general vi olation defined in (b), elevat e the seriousness to the gross-
misdemeanor or felony level, respectively. “Except as provided in paragraphs (c) and (d)”
modifies only the final clause of (b), that “v iolation of the order is a misdemeanor.” The
middle segment, “when a . . . restraining or der is granted under this section and the
respondent knows of the order,” announce s a knowledge requirement that remains an
element of the crime even where paragraph (c) or (d) attaches a more serious penalty. Id.,

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subd. 6 (2014). Furthermore, paragraph (d) refers to “the order,” while paragraph (b) refers
first to “ a restraining order” and then refers back to “ the [same] order.” Id. (emphasis
added). The use of the definite article in pa ragraph (d) implies that it refers back to an
order that has already been identified—that is, the one introduced in paragraph (b). Id.
The state argues that the legislature’s 2013 removal of the word “knowingly” from
the felony provision, which formerly stated that a person is guilty “if the person knowingly
violates the order,” establishes that the legislature intended to remove the mens rea element
from the felony provision. See 2013 Minn. Laws ch. 47, § 4. The state’s argument
incorrectly conflates the phrases “knowingly violates” and “kno ws of the order.” Before
the 2013 amendment, this court held that “knowingly” in paragraph (d) required proof that
a defendant was aware that his conduct would violate the HRO. State v. Gunderson, 812
N.W.2d 156, 161 (Minn. App. 2012). Thus, “knowi ngly violates” created a knowledge
requirement for paragraph (d) that was distin ct from and additional to the “knows of the
order” requirement in paragraph (b). The 20 13 removal of “knowingly” had no effect on
the separate “knows of the order” requirement.
We therefore conclude that the defendan t’s knowledge of the HRO is a required
element of a felony violation under Minn. Stat. § 609.748, subd. 6(d).
We next turn to the issue of whether the record contains a sufficient factual basis to
establish that King knew of the HRO. When asked if he was aware of the HRO when he
called the protected person, Ki ng responded, “I was—I was not —I was aware of it, but I
did not remember that I did have it at that time so—.” When the state asked, “But you had
been made aware of it, you just didn’t rememb er it was there?,” King answered, “Yes.”

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Immediately after that testimony, when aske d about the nature of the phone calls, King
stated that he called the protected person, then received a call from a police officer, and
then called the protected person again in an effort “to get this cleared up” and “to find out
what was going on and get the situation figured out.” In context, King’s statements indicate
not only that he was aware of the HRO when he made the calls after hearing from the police
officer, but also that the HRO itself was the subject King intended to discuss with the
protected person. King’s plea colloquy presents a sufficient factual basis to establish that
King knew of the HRO.
Affirmed.