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This opinion will be unpublished and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
A16-1890

State of Minnesota,
Respondent,

vs.

Gregory Lee Boulduc,
Appellant.

Filed September 11, 2017
Affirmed
Florey, Judge

Polk County District Court
File Nos. 60-CR-16-709; 60-CR-16-179;
60-CR-16-823; 60-CR-16-1113

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

Greg Widseth, Polk County Attorney, Hans Erik Larson, Assistant Coun ty Attorney,
Crookston, Minnesota (for respondent)

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

Considered and decided by Cleary, Chief Judge; Kirk, Judge; and Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant Gregory Lee Boulduc (1) seek s to withdraw his guilty pleas to the
offenses of escape from custody and fleeing a peace officer in a motor vehicle, arguing that
his pleas were not accurate because they faile d to show that he intended to commit those
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crimes and (2) seeks correction of his sent ence on the escape-from-custody conviction,
arguing that imposition of a c onsecutive sentence rather than a concurrent sentence
constituted an unauthorized sentencing departure. We affirm.
FACTS
Within a four-month period, three criminal complaints were file d in Polk County
alleging criminal conduct by appellant. On February 3, 2016, appellant was charged with
felony theft for stealing a trailer; on Apr il 27, 2016, appellant wa s charged with felony
fleeing a peace officer in a motor vehicle and three misdemeanor offenses; and on May 13,
2016, appellant was charged with two felony counts of check forgery.
Consistent with plea agreements, appellant entered petitions to plead guilty to one
count each of felony theft, fleeing a peace o fficer in a motor vehicl e, and check forgery,
with all other charges to be dismissed. He was to receive 21-month executed, concurrent
sentences for each of the three offenses.
While awaiting sentencing on June 14, 20 16, appellant was released from custody
on medical furlough in order to attend an appo intment. The district court extended the
furlough after appellant was admitted to th e hospital followi ng the appointment. Upon
discharge from the hospital, appellant was required to report back immediately to the
Northwest Regional Corrections Center (NRCC) in Crookston. Although he was released
from the hospital on June 15, appellant failed to return to the NRCC. A week later, he was
charged with felony escape from custody and was later arrested on a warrant.
Appellant petitioned to plea d guilty to the escape-from-custody charge, agreeing to
a sentence of a year and a day “[c]onsecutive to [the] other Polk County files.” The district
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court accepted the plea and sentenced appellant consistent with all of his plea agreements,
imposing 21-month concurrent sentences for each of the first three offenses, and a
consecutive sentence of one year and a day fo r the escape-from-custody offense. This
appeal followed.
D E C I S I O N
I.
After sentencing, an offender is permitted to withdraw a plea if it is “necessary to
correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. “Manifest injustice occurs
if a guilty plea is not accura te, voluntary, and intelligent, and thus the plea may be
withdrawn.” Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).
The purpose of the accuracy requirement is to “protect[] 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.” State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). “A proper factual
basis must be established for a guilty plea to be accurate.” State v. Theis, 742 N.W.2d 643,
647 (Minn. 2007) (quoting State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994)); see State
v. Iverson, 664 N.W.2d 346, 350 (Minn. 2003) (stating that a claim of an insufficient factual
basis to support a guilty plea is a challenge to the validity of the plea). In order for a plea
to be withdrawn, the “defendant bears the burden of showing his plea was invalid.” State
v. Boecker , 893 N.W.2d 348, 350 (Minn. 2017) (quo tation omitted). “A district court
should not accept a guilty plea unless the record supports the conclusion that the defendant
actually committed an offense at least as se rious as the crime to which he is pleading
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guilty.” Id. (quotation omitted). The validity of a guilty plea is a question of law subject
to de novo review. Raleigh, 778 N.W.2d at 94.
Fleeing a peace officer in a motor vehicle . A person is guilty of the offense of
fleeing a peace officer in a motor vehicle if the person “by means of a motor vehicle flees
or attempts to flee a peace officer who is acting in the lawful discharge of an official duty,
and the perpetrator knows or should reasonabl y know the same to be a peace officer.”
Minn. Stat. § 609.487, subd. 3 (2014). “Fl eeing” is defined as “to increase speed,
extinguish motor vehicle headlight s or taillights, refuse to stop the vehicle, or use other
means with intent to attempt to elude a peace officer following a signal given by any peace
officer to the driver of a motor vehicle.” Id., subd. 1 (2014).
In his plea colloquy, appellant admitted th at he was driving a motor vehicle when
he saw an officer behind him tr ying to stop him. Appellant explained his conduct to the
district court, as follows:
A. Your Honor, I was in the process of making a turn. I
had a destination, which was the shed outside of town,
which was land owned by family.
Q. Okay.
A. And that was my destin ation from the beginning. And
I was in the process of making a turn on the curve when
the officer came up behind me and turned his lights on
and I continued until that property figuring that at least
my car would be safe and o ff the road. It was not my
intention, Your Honor, to fl ee or run anywhere. I was
aggravated and I believe if I wouldn’t have been
shooting my mouth off the way I was, I probably
wouldn’t have this charge right now.
Q. Okay. Would you agre e that you didn’t immediately
stop? I mean, it sounds like you made your turn. I see
that.
A. Yeah.
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Q. And the officer turned on the siren.
A. Yeah.
Q. And you kept going.
A. I did, your Honor.
Q. And then the officer turn ed on a different siren and you
kept going and then the officer actually activated a loud
speaker telling you to pull over.
A. Yes.
Q. And you still kept going. And then eventually you
turned over – you pulled over onto a field road.
A. Yes. That’s our property, yes.
Q. So would you agree you certainly could have stopped a
lot sooner? You kept going long enough so it appeared
you were trying [to] evade the officer.
A. That would be correct.

The prosecutor asked appellant , “[Y]ou understand that in making these additional turns
and not following instructions, including th e speaker, that essentially you were making
some intentional choices to continue drivi ng?,” to which appellant answered, “Yes.”
Defense counsel also asked appe llant if he agreed that a s quad recording of the incident
showed that he drove “a significant period of time after the lights [were] on, the siren [was]
on, and the officer talking over the loud spea ker, it was a fair distance that you continued
to travel, is that correct?” Appellant answered, “Yes.”
Appellant argues that there is no evidence in the record to indicate that he intended
to flee from the officer. “[T]he factual basis of a plea is 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.” Nelson v. State, 880 N.W.2d 852, 859
(Minn. 2016) (quoting Iverson, 664 N.W.2d at 350). Although appellant initially testified
that he did not intend to flee from the officer, upon further questioning, he admitted that he
kept going after the officer activated two different sirens and directed him to pull over by
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a loudspeaker. He also admitted that he could have stopped a lot sooner, made an
intentional choice to continue driving, and continued to drive a significant period of time
and a fair distance after the officer first attempted to stop his vehicle.
Appellant argues that he did not admit to fleeing because he was not attempting to
elude the officer. But the definition of “fl eeing” also includes “refus[ing] to stop the
vehicle,” which appellant clearly admitted to do ing. Minn. Stat. § 60 9.487, subd. 1. To
the extent that appellant’s initial statement can be construed to negate the intent element of
the offense, that statement applied only to limited conduct, and his later more specific
statements satisfied the intent element of the offense. Thus , appellant’s statements were
sufficient to establish the factual basis for the plea.
Plea to escape from custody . At his plea hearing on the escape-from-custody
charge, appellant agreed that he was in th e “lawful custody” of the NRCC when he was
granted a furlough on June 14 “to attend a me dical appointment.” Appellant also agreed
that he “went to th[e] medical appointment,” was “admitted to the Altru hospital in Grand
Forks, North Dakota,” and that the district court judge who had granted him the furlough
from custody “extended it until [he was] discha rged from the hospita l.” When asked
whether he returned to NRCC after being disc harged from the hospital, appellant said, “I
did not.” When asked whether this conduct made him guilty of the offense of escape from
custody by failing to return, appellant answered, “Yes, sir.” Before accepting the plea, the
district court asked appellant whether the complaint was accurate, and appellant confirmed
that it was. Moreover, the district court re ceived appellant’s attorney’s permission to
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“accept[] the probable cause portion of the complaint as additional support for [appellant’s]
plea.”
Appellant argues that the facts he admitted to at the plea hearing were insufficient
to show that his “failure to re turn to custody was intentional or volitional.” The acts that
amount to escape from custody include “escap[ing] while held . . . in lawful custody on a
charge or conviction of a crime.” Minn. St at. § 609.485, subd. 2 (2014). “Escape” is
defined to include “failure to return to cu stody following temporary leave granted for a
specific purpose or limited period.” Id., subd. 1 (2014). The offense is not a specific-intent
crime: “the only intent required to constitute the crime of escape is the intent to do the act
which results in the departure from custody.” State v. Kjeldahl, 278 N.W.2d 58, 61 (Minn.
1979); see State v. Knox , 311 Minn. 314, 322, 250 N.W.2d 147, 154 (1976) (stating that
the acts that constitute the offense of esca pe from custody “must be intentional and
voluntary”).
While appellant did not state that he in tentionally or voluntarily escaped from
custody, “the plea petition an d colloquy may be supplemen ted by other evidence to
establish the factual basis for a plea.” Lussier v. State, 821 N.W.2d 581, 589 (Minn. 2012).
That supplemental evidence may in clude the criminal complaint. See State v. Trott , 338
N.W.2d 248, 252 (Minn. 1983) (ruling that the factual basis to support a plea to second-
degree assault was sufficient on a record th at included the defendant’s admissions, the
criminal complaint, and photos of the victim’s injuries). The complaint here establishes
the facts surrounding the granting of appellant’s medical furlough and his failure to report
back to custody immediately upon discharge from the hospital. Appellant confirmed the
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accuracy of the complaint, which includes facts that demonstrate that appellant knew that
he should report to the NRCC upon discharge from the hospital, he was warned to return
to custody, and he intentionally did not return to custody. With regard to appellant’s failure
to return to custody, the co mplaint alleges that appellant’s attorney told Deputy Jessica
Nelson that he had informed appellant “the previous week” that he “needed to immediately
report back to jail,” but appellant did not do so. Based on all of the information in the
district court record, there is an adequate factual basis to establish the accuracy of
appellant’s plea.
II.
As an alternative argument to his plea-withdrawal request on the escape-from-
custody offense, appellant argues that his co nsecutive sentence for that offense must be
corrected because it constitutes an unauthorized sentencing departure. Generally, a district
court’s sentencing decision is discretionary and will not be reversed unless the district court
abused its discretion. State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002). But when
the sentencing issue requires determinati on of whether imposition of a consecutive
sentence was permissive or amounted to an upward sentencing de parture, the “issue
requires interpretation of the sentencing guide lines, which is a question of law subject to
de novo review.” State v. Rannow, 703 N.W.2d 575, 577 (Minn. App. 2005). Likewise,
this court reviews de novo a district court’ s interpretation of the Minnesota Sentencing
Guidelines. State v. Rouland , 685 N.W.2d 706, 708 (Minn. App. 2004), review denied
(Minn. Nov. 23, 2004).
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“[P]lea agreements cannot form the so le basis of a sentencing departure.”
Misquadace, 644 N.W.2d at 71; see Minn. Sent. Guidelines cmt. 2.D.104 (Supp. 2015)
(stating, “if a plea agreement involves a se ntence departure and no other reasons are
provided [for the departure], there is little information av ailable to make informed policy
decisions or to ensure consistency, proportionality, and rationality in sentencing”). Instead,
a plea agreement that constitutes a departur e from the sentencing guidelines “must be
supported by substantial and compelling circumstances,” and “[a] plea agreement standing
alone . . . does not create such circumstances in its own right.” Id. at 71-72. If the district
court imposes a sentence that constitutes a de parture without stati ng the basis for the
departure at the time of sentencing, th e departure is usually not allowed. State v. Geller,
665 N.W.2d 514, 516 (Minn. 2003); Minn. Sent. Guidelines 2.D (Supp. 2015).
The parties disagree about whether impos ition of a consecutive sentence for the
escape-from-custody offense was a permissi ble sentencing option or a sentencing
departure. The Minnesota Sentencing Guidelines allows consecutive sentencing only
under prescribed circumstances. Minn. Sent. Guidelines 2.F (Supp. 2015) (“Imposition of
consecutive sentences in any situation not described . . . is a departure.”) Guideline 2.F.1
specifies scenarios under which consecutive sentences are presumptive, and guideline
2.F.2 specifies scenarios under which consecutive sentences are permissive.
Guideline 2.F.2.a(2)(i), which encompasses the factual scenario represented here,
provides: “If the offender is convicted of felony escape from lawful custody—as defined
in Minnesota Statutes section 609.485—and the offender did not escape from an executed
prison sentence, the escape may be sentenced consecutively to the sentence for which the
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offender was confined.”1 This guideline language is consistent with Minn. Stat. § 609.485,
subd. 4(c) (2014), which provides that “unless a concurrent term is specified by the court,
a sentence under this section shall be consec utive to any sentence pr eviously imposed or
which may be imposed for any crime or offense for which the person was in custody when
the person escaped.” See State v. Humes , 581 N.W.2d 317, 319 (Minn. 1998) (applying
cannon of statutory construction that “shall” is mandatory to conclude that plain language
of a statute required a term of conditional release to be included in sex offenders’
sentences); Minn. Stat. § 645.44, subd. 16 (2016) (“‘Shall’ is mandatory.”). Given the
statutory mandate, the only reasonable interpreta tion of this language is that it applies to
an offender such as appellant, who escape s from custody while “confined” following
conviction on prior offenses but befo re sentencing on those offenses. See State v. Flynn,
313 N.W.2d 389, 390 (Minn. 1981) (affirming the imposition of a consecutive sentence for
attempted escape when “[t]he attempted es cape from the jail was made while awaiting
sentencing and during the pre-sentence investigation [on other convictions]”). Therefore,
under either the guidelines or the statute, the district court’s imposition of consecutive
sentences on appellant’s escape-from-custody conviction did not constitute a sentencing
departure.
Affirmed.

1 In other factual scenarios, consecutive sent encing for escape offenses may be either
presumptive or permissive. For example, a consecutive sentence is presumptive if the
offender escapes from custo dy “from an executed prison sentence.” Minn. Sent.
Guidelines 2.F.2.a(1)(ii). And a consecutive sentence is permissive if the offender commits
a new felony “while on felony escape.” Minn. Sent. Guidelines 2.F.1.a(1)(iii).