Jennifer Natalie Bernard, petitioner, Appellant,

This opinion will be unpublished and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
A17-1720

Jennifer Natalie Bernard, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 13, 2018
Affirmed
Johnson, Judge

Ramsey County District Court
File No. 62-CR-14-7405

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

John Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Stauber,
Judge.

Retired judge of the Minnesota Court of Appeals, appearing by appointment
pursuant to Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
In 2014, Jennifer Natalie Bernard pleaded guilty to first-degree burglary. In 2017,
she petitioned for post -conviction relief on the grounds that her guil ty plea is invalid
because it is not accurate. The post-conviction court denied the petition. We conclude that
the post-conviction court did not err because Bernard’s plea has a proper factual basis.
Therefore, we affirm.
FACTS
In September 2014, Bernard ’s boyfriend visit ed his children at the home of his
estranged wife, A.C. Bernard was upset by t he fact that her boyfriend w as visiting his
children at A.C.’s house. While waiting for him to return, she drank heavily and called his
cell phone repeatedly. After receiving no response, she and a friend drove to A.C.’s house.
Bernard pounded on A.C.’s front door so hard that she broke the glass pane in the door.
A.C. came to the door. According to the complaint, A.C. saw Bernard reach her hand
inside the frame of the broken glass pane and unlock the door. Once inside the house,
Bernard and her friend repeatedly punched A.C. and pulled her hair. Bernard’s boyfriend
broke up the fight. Bernard and her friend drove away.
The state charged Bernard with first -degree burglary, in violation of Minn. Stat.
§ 609.582, subd. 1(c) (2014). In December 2014, Bernard plea ded guilty to the charge
without any agreement concerning her sentence. During the plea hearing, Bernard stated
that her boyfriend and A.C. had invited her to A.C.’s house to resolve conflicts among the
three of them. Bernard stated that she pounded hard on A.C.’s front door until the glass
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pane of the door broke. Bernard also stated (contrary to the complaint) that her boyfriend
let her into A.C.’s house. Bernard admitted that she struck A.C. after entering the house .
The district court determined that the factual basis of the plea was sufficient but deferred
acceptance of the plea until sentencing. The district court later imposed a sentence of 58
months of imprisonment but stayed the sentence and placed Bernard on probation. The
district court revoked Bernard’s probation in May 2015 after finding that she violated the
terms of her probation.
In February 2017, Bernard petitioned for post-conviction relief. She claimed that
she received ineffective assistance of c ounsel and that her guilty plea is invalid on the
ground that it is not accurate. The post-conviction court conducted an evidentiary hearing
on three days in April and June 2017. Bernard called four witnesses , three of whom
provided testimony that was re levant only to her ineffective -assistance claim. The state
did not call any witnesses.
In September 2017, t he post-conviction court issued a 31 -page order in which it
denied Bernard’s petition. The post-conviction court rejected Bernard’s claim that her
guilty plea is not accurate on the ground that Bernard admitted at the plea hearing that she
had no legal right to be in A.C.’s home when she assaulted A.C. Bernard appeals.
D E C I S I O N
Bernard argues that the post -conviction court erred by denying her petition on the
ground that her guilty plea is invalid.
A criminal offender may file a post-conviction petition to seek relief on the ground
that her conviction “violated [her] rights under the Constitution or laws of the United States
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or of the state .” Minn. Stat. § 590.01, subd. 1(1) (2016 ). An offender may obtain post -
conviction relief if she can prove that her guilty plea is invalid. Nelson v. State, 880 N.W.2d
852, 858 (Minn. 2016). A guilty plea is valid if it is “accurate, voluntary, and intelligent.”
State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010); State v. Ecker, 524 N.W.2d 712, 716
(Minn. 1994). If a guilty plea is not accurate, not voluntary, or not intelligent, the plea is
invalid. State v. Theis, 742 N.W.2d 643, 650 (Minn. 2007).
If the post -conviction court conducts an evidentiary hearing on such a claim, the
petitioner must “establish the facts by a fair preponderance of the evidence.” Min n. Stat.
§ 590.04, subd. 3 (2 016). This court applies a clear -error standard of review to a post-
conviction court’s findings of fact and will not reverse the post-conviction court’s decision
unless its findings “‘are not factually supported by the record.” Nelson, 880 N.W.2d at 858
(quoting Riley v. State , 819 N.W.2d 162, 167 (Minn. 2012)). If the relevant facts are
undisputed, this court applies a de novo standard of review to a post -conviction court’s
decision concerning the validity of a guilty plea. Id.; see also State v. Johnson, 867 N.W.2d
210, 214-15 (Minn. App. 2015), review denied (Minn. Sept. 29, 2015).
In this case, Bernard argues that her guilty plea is not accurate because the record
does not show that she assaulted A.C. after entering A.C.’s house without consent or
remaining in her house without consent. “The main purpose of the accuracy requirement
is to protect a defendant from pleading guilty to a more serious offense than [she] could be
convicted of were [she] to insist on [her] right to trial.” State v. Trott, 338 N.W.2d 248,
251 (Minn. 1983). The accuracy requirement requires that a guilty plea “be established on
a proper factual basis.” Raleigh, 778 N.W.2d at 94. A proper factual basis exists if “‘the
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record contains a showing that there is credible evidence available which would support a
jury verdict that defendant is guilty of at least as great a crime as that to which he pled
guilty.’” Nelson, 880 N.W.2d at 859 (quoting State v. Genereux, 272 N.W.2d 33, 34 (Minn.
1978)). “However, ‘[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.’” Id. (quoting State v. Iverson, 664 N.W.2d 346, 350
(Minn. 2003)).
To evaluate the accuracy of Bernard’s guilty plea , we must identify the essential
elements of first-degree burglary. A person is guilty of first-degree burglary if she “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 ,”
and “assaults a person within the building.” Minn. Stat. § 609.582, subd. 1(c). The phrase
“enters a building without consent” is defined by statute to mean:
(a) to enter a building without the consent of the
person in lawful possession;

(b) to enter a building by using artifice, trick, or
misrepresentation to obtain consent to enter from the person in
lawful possession; or

(c) to remain within a building without the consent
of the person in lawful possession.

Minn. Stat. § 609. 581, subd. 4 (2014). In light of th e definition of “enters a building
without consent,” Bernard’s guilty plea has a proper factual basis even if she entered A.C.’s
house with consent. Bernard is guilty of first-degree burglary if she remained in the house
without consent and assaulted A.C. See id. §§ 609.581, subd. 4(c), .582, subd. 1(c).
6
Bernard’s argument is based on the premise that, to be guilty of the offen se, she
must have entered or remained in the house without consent before she assaulted A.C.
Assuming without deciding that the premise is valid, t he record shows that Bernard
engaged in conduct that violated the statute. Even if Bernard was invited to A.C.’s home,
and even if her boyfriend let her into the house , as she stated in the plea hearing, consent
for her presence in the house was withdrawn immediately after she entere d the house .
During the plea hearing, Bernard stated that “we [ i.e., the three women] were all hitting
each other,” “we were all fighting,” and “it all happened very fast.” Bernard’s attorney
asked her, “would you agree that once you got into this fight in the house, any consent or
permission you had to enter the house was withdrawn? ” Bernard answered in the
affirmative. Similarly, the prosecutor asked, “Did it become clear to you once you were in
the residence that you were not welcome in the residence ?” Bernard answered, “Yes, it
became clear.” The prosecutor clarified the issue by asking further, “ You became aware
that you were not—whether you had been previously invited or not, you were not welcome
in [A.C.’s] home.” Bernard again answered in the affirmative. The prosecutor completed
her questioning by asking, “when you committed that assault, you had no legal right to be
in that home?” Bernard answered, “Yes.” Thus, it is reasonable to conclude that, even if
Bernard had consent to enter the house, that consent was withdrawn immediately after she
entered, either before she began her assault of A.C. or before she completed the assault.
See Nelson, 880 N.W.2d at 861 ( stating that guilty plea has proper factua l basis if “facts
exist from which the defendant ’s guilt of the crime charged can be reasonably inferred ”
(quotation omitted)).
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Bernard also contends that her guilty plea is invalid because it is based on her
answers to the prosecutor’s leading questions, which, she contends, are “directly contrary
to all statements made by Ms. Bernard throughout [her] colloquy.” The supreme court has
“repeatedly discouraged the use of leading questions to establish a factual basis .” Id. at
860 (citing cases). But the supreme court has “never held that the use of leading questions
automatically invalidates a guilty plea.” Id. We return to the central question : whether
“the record contains a showing that there is credible evidence available which would
support a jury ve rdict that defendant is guilty of at least as great a crime as that to which
he pled guilty.” Id. at 859 (quotation omitted). We conclude that the record does contain
such evidence. We also reject Bernard’s contention that her answers to the prosecutor’s
leading questions contra dicted statements she had made earlier in the plea hearing with
respect to whether she was present in A.C.’s house with or without consent . To be sure,
the prosecutor sought to establish that Bernard gained entry by op ening the locked front
door herself, as alleged in the complaint. But Bernard consistently maintained that she did
not herself open the door but that her boyfriend opened it for her. Nonetheless, the record
is clear that, immediately upon confronting A.C., Bernard no longer had consent to remain
in the house . In light of that fact, it does not matter whether Bernard entered the house
without consent. See Minn. Stat. § 609.581, subd. 4.
In sum, the post -conviction court did not err by concluding that there is a proper
factual basis for Bernard’s guilty plea and, thus, did not err by denying Bernard’s post-
conviction petition.
Affirmed.