State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1316

State of Minnesota,
Respondent,

vs.

Pierre Lemar Burgess,
Appellant.

Filed June 24, 2019
Affirmed
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-CR-17-5662

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John J. Choi, Ramsey County Atto rney, Peter R. Marker, Assistan t County Attorney,
St. Paul, Minnesota (for respondent)

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

Considered and decided by Sche llhas, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from a judgment of conviction, appellant Pierre Lemar Burgess
argues that his guilty plea to dri ving while impaired (DWI)—tes t refusal was invalid
because it was not supported by an adequate factual basis. We affirm.
FACTS
In July 2017, Saint Paul police re sponded to a report of gunsho ts fired, apparently
involving a white Lincoln sedan . Police thereafter encountered a white Lincoln sedan
driven by Burgess. Police determined that Burgess’s driving privileges were canceled1 and
noticed a strong odor of alcohol coming from him. His eyes were bloodshot, and his speech
was slurred. Burgess refused a preliminary breath test. At the law-enforcement center,
police read him the implied-cons ent advisory and let him call a n attorney. After Burgess
made several phone calls, police requested that he submit to a breath test. Burgess refused.
Respondent State of Minnesota charged Burgess with felony DWI—refusal to submit to a
chemical test, in violation of Minn. Stat. § 169A.20, subd. 2(1) (Supp. 2017).
On January 16, 2018, Burgess ag reed to enter a plea of guilty. At the plea hearing,
Burgess agreed that, once he was taken into custody, the office rs noticed that he had a
strong odor of alcohol and that his speech was slurred. He agreed that he refused to submit
to a breath test and that he had three prior DWI-related offens es. The district court found

1 Burgess’s most recent prior convictions include a 2013 convict ion for careless driving
(resulting in the revocation of his driving privileges), a 2015 conviction for DWI, and a
2016 conviction for test refusal.

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the factual basis adequate to support the plea. On May 15, 2018 , the district court held a
sentencing hearing. The district court denied Burgess’s motion for a dispositional departure
but agreed to a durational departure, imposing a sentence of 36 months’ imprisonment and
five years of conditional release.
This appeal follows.
D E C I S I O N
Appellant seeks to withdraw his guilty plea, arguing that he di d not admit to
sufficient facts to support a conviction for test refusal.
Burgess did not make this argument to the district court before entry of judgment.
However, the supreme court has stated that, “by pleading guilty, a defendant does not waive
the argument that the factual basis of his guilt was not establ ished.” State v. Iverson, 664
N.W.2d 346, 350 (Minn. 2003). Accordingly, “[a] defendant is fr e e t o s i m p l y a p p e a l
directly from a judgment of conviction and contend that the rec ord made at the time the
plea was entered is inadequate” to establish the requirements of a valid guilty plea. Brown
v. State, 449 N.W.2d 180, 182 (Minn. 1989). Thus, we consider Burgess’s argument even
though he did not present it to the district court.
“To be constitutionally valid, a guilty plea must be accurate, voluntary, and
intelligent.” Nelson v. State, 880 N.W.2d 852, 858 (Minn. 2016) (quotation omitted). If a
guilty plea fails to meet any of these three requirements, the plea is invalid. State v. Theis,
742 N.W.2d 643, 650 (Minn. 2007). We review the validity of a guilty plea de novo. State
v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010)

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To be accurate, a guilty plea must be supported by a factual b asis. Id. A factual basis
exists 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 gu ilty.” Iverson, 664 N.W.2d
at 349 (quotation omitted). The factual-basis requirement is satisfied if the record contains
credible evidence that would support a jury verdict that the defendant is guilty of the crime
to which he pleaded guilty. Nelson, 880 N.W.2d at 859.
Burgess pleaded guilty to test refusal under Minn. Stat. § 169 A.20, subd. 2 (Supp.
2017). That statute provides: “It is a crime for any person to refuse to submit to a chemical
test of the person’s breath under section 169A.51 (chemical tes ts for intoxication), or
169A.52 (test refusal or failure ; revocation of license).” Minn . Stat. § 169A.20, subd. 2.
The statute also incorporates two requirements. First, an offic er must have had probable
cause to believe the person was driving while impaired and, sec ond, one of the following
four conditions must exist:
(1) the person has been lawfully placed under arrest for
violation of section 169A.20 or an ordinance in conformity
with it;
(2) the person has been involved in a motor vehicle accident or
collision resulting in property damage, personal injury, or
death;
(3) the person has refused to take the screening test provided
for by section 169A.41 (preliminary screening test); or
(4) the screening test was administered and indicated an
alcohol concentration of 0.08 or more.

Minn. Stat. § 169A.51, subd. 1(b) (2016); see also State v. Koppi , 798 N.W.2d 358, 362
(Minn. 2011) (“Refusing a chemical test is not a crime, therefo re, unless it can be proven
beyond a reasonable doubt that an officer had probable cause to believe the person was

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driving, operating, or in physical control of a motor vehicle w hile impaired.” (quotation
omitted)). Burgess argues that neither requirement was satisfied.
During the relevant portion of Burgess’s plea colloquy, Burges s answered the
county attorney’s questions as follows:
Q. Did you make contact with police officers that night?
A. Yes, I did.

Q. And, in fact, they were investigating a shots fired call, is
that right?
A. Yes.

Q. And they talked to you and determined that you had been
driving a vehicle while your driver’s license had been
cancelled as inimical to public safety, is that right?
A. Yes.

Q. And they placed you under arrest?
A. Yes.

Q. Once you were in custody the officers observed that you had
a strong odor of alcohol coming from you and that your eyes
were bloodshot and watery and your speech was slurred, is that
right?
A. Yes.

Q. When they took you down to the Law Enforcement Center
did they read you the Implied Consent Advisory?
A. Yes.

Q. And they gave you an opportunity to make a phone call to
call an attorney?
A. Yes.

Q. And after that did they ask you to take a breath test?
A. Yes.

Q. Did you refuse to take that breath test?
A. Yes, I did.

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Q. And Mr. Burgess, this is a felony because you have three
prior DWI related offenses on your record, is that right?
A. Yes.

Before turning to the two requirements, we acknowledge Burgess’ s concern about
the leading nature of the inquiry. The supreme court has discou raged district courts from
permitting a factual basis for a guilty plea to be established through leading questions by
counsel. Raleigh, 778 N.W.2d at 94. Rather, district courts should ask defendants to express
in their own words what happened. Id. But “a defendant may not withdraw his plea simply
because the [district] court failed to elicit proper responses” if the record is sufficient to
support the conviction. Id. The supreme court has “never held that the use of leading
questions automatically invalidates a guilty plea.” Nelson, 880 N.W.2d at 860.
Turning to the two requirements of Minn. Stat. § 169A.51, subd. 1(b), Burgess first
argues that the record does not establish that the officers had probable cause to believe that
he was driving while impaired. H e asserts that he did not expli citly admit to the police’s
belief that he was driving while impaired and that he did not i mplicitly concede it by
testifying about his arrest, since he only acknowledged being a rrested for driving on a
canceled driver’s license, not being arrested for DWI. We are n ot persuaded. Burgess
acknowledged in the plea colloquy that he was driving a car and that police thereafter
observed his bloodshot and watery eyes, his slurred speech, and the strong odor of alcohol
coming from him. His admission to those facts, including the mu ltiple indicia of
intoxication, establishes that police had an objective basis to believe he was driving under
the influence. See State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004) (finding police
officer’s observation of driver’s bloodshot and watery eyes, slurred speech, and strong odor

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of alcohol sufficient to establish probable cause). Moreover, B urgess acknowledged that
police read him the implied-consent advisory and asked him to take a breath test. Together
with his admission that police observed indicia of intoxication, Burgess’s testimony gives
rise to the reasonable inference that the police believed they had probable cause he was
driving while impaired. See Barnslater v. State , 805 N.W.2d 910, 914-15 (Minn. App.
2011) (holding that intent ele ment of crime can be inferred fro m other facts admitted by
the defendant in plea colloquy).
Burgess also argues that the record does not establish the second requirement—that
one of four statutory conditions w as met. The state relies on t he condition that Burgess
refused to take a preliminary breath test (PBT). See Minn. Stat. § 169A.51, subd. 1(b)(3).
Burgess correctly points out that the colloquy is silent about his PBT refusal. But the state
urges us to consider the complaint, which states that Burgess “refused a preliminary breath
test.” Burgess disputes that the complaint may be considered, contending that the record in
his case is limited to the plea transcript.
We disagree. “[T]he plea petition and 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); see also State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983) (concluding that
the record as a whole, which included the complaint and photos of the victim’s injuries
taken at the hospital, was sufficient to establish factual basi s for guilty plea); State v.
Hoaglund, 240 N.W.2d 4, 6 (Minn. 1976) (looking to the record as a whole, including the
presentence investigation, in evaluating factual basis for guilty plea); Burnett v. State, 195
N.W.2d 187, 188 (Minn. 1972) (noting that the presentence inves tigation contained

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defendant’s version of crime in detail and, while its use is di sapproved, constituted an
adequate factual basis for guilty plea); Sanchez v. State, 868 N.W.2d 282, 289 (Minn. App.
2015) (looking to the complaint for factual basis to support gu ilty plea). While we would
not consider the statement in the complaint regarding refusing the PBT if Burgess had
negated that fact during his plea, see State v. Mikulak, 903 N.W.2d 600, 603 (Minn. 2017)
(holding that plea lacked factual basis when the defendant negated an essential element of
the crime), Burgess did not negate that he refused to take a sc reening test. The complaint
therefore establishes that Burgess refused to take the screenin g test, satisfying one of the
four statutory conditions. See Minn. Stat. § 169A.51, subd. 1(b)(3).
In sum, based on the plea colloquy and the facts in the complaint, a sufficient factual
basis exists to support Burgess’s guilty plea. His plea is therefore accurate and valid.
Affirmed.