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This opinion will be unpublished and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
A18-1502

State of Minnesota,
Respondent,

vs.

Shawn Douglas Ratcliff,
Appellant.

Filed July 1, 2019
Affirmed in part and remanded
Rodenberg, Judge

Dakota County District Court
File Nos. 19HA-CR-17-3300, 19HA-CR-17-3299,
19HA-CR-17-3298, 19HA-CR-17-3296, 19HA-CR-17-3132

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

James C. Backstrom, Dakota County Attorney, Torrie J. Schneider , Assistant County
Attorney, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawle r, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Rodenberg , Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this direct appeal from his convictions and sentences, appe llant Shawn Ratcliff
challenges the validity of his guilty plea to possession of amm unition by an ineligible

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person because his answers to his attorney’s questions did not establish a sufficient factual
basis for the plea. He also challenges the district court’s imposition of separate sentences
for four (4) violations of a domestic-abuse no-contact order (DANCO). We affirm in part
and remand.
FACTS
At 10:23 p.m., on July 29, 2017, Burnsville police received a call from a woman
who was concerned about her daughter, T.K., because of problems with appellant, who is
T.K.’s ex-boyfriend. Officers c ontacted T.K., who reported tha t she had been dating
appellant, but recently ended thei r relationship and was stayin g with appellant’s ex-wife,
P.B. T.K. reported that appellant had punched her in the head, accused T.K. of cheating
on him, threatened to cut his own throat with a pocket knife, a nd broke T.K.’s phone by
stabbing it with a knife.
Police then went to appellant’s home to arrest him, but appella nt had barricaded
himself in his apartment and refused to exit. The officers obt ained warrants, and, when
they entered the apartment, appellant claimed that he was standing in a bucket of water and
holding electrical cords. Appellant told the officers that he would electrocute himself and
stated that officers would have to shoot him, so the officers l eft and turned off the power
to the apartment. Police continued to watch the apartment and arrested appellant the next
morning as he left the apartment.
On August 1, 2017, officers returned to appellant’s apartment a nd, during a
warranted search, found 16 .45-ca liber cartridges in a hole tha t had been punched in the
wall and a ripped-up .45-caliber ammunition box in the trash.

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Appellant had multiple convictions that made him ineligible to possess ammunition.
The state charged appellant with one count of felony possession of ammunition by an
ineligible person under Minn. Stat. § 624.713, subd. 1(2) (2016 ), and one count of felony
domestic assault under Minn. Stat. § 609.2242, subd. 4 (2016).
When appellant appeared in dist rict court for the ammunition-p ossession and
domestic-assault offenses, the district court issued a DANCO wh ich prohibited appellant
from having contact with T.K., including contact by phone.
After the district court issued the DANCO, appellant made four phone calls from
the jail to the telephone of his ex-wife, P.B. At some point d uring each of those calls,
appellant also spoke with T.K. The calls were made at 4:57 p.m., 7:03 p.m., 7:24 p.m., and
7:47 p.m. The state charged appellant with four separate DANCO violations under Minn.
Stat. § 629.75, subd. 2(d)(1) (2016).
In April 2018, appellant entered straight guilty pleas to the ammunition-possession,
domestic-assault, and DANCO-violation offenses, with no sentencing agreement. During
the plea colloquy, appellant adm itted that law enforcement had found ammunition in his
apartment. Appellant’s counsel asked, “You don’t deny that the ammunition was yours,
correct?” Appellant responded, “ Yes.” Appellant also admitted that he was ineligible to
possess ammunition and that he threatened T.K. with a beer bottle.
Appellant admitted dur ing the plea colloquy that he was aware of the DANCO that
prohibited him from having contact with T.K. He acknowledged that the DANCO included
no phone contact and admitted that , after he appeared in court for the ammunition-

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possession and assault charges, he made calls to P.B.’s phone s o that he could talk with
T.K. He agreed that his conduct violated the DANCO.
The district court accepted a ppellant’s guilty pleas. Appellant’s attorney asked for
a downward dispositional depart ure to probation, arguing that a ppellant’s need for
treatment, his participation in jail programming during the pen dency of the case, and
diagnosis of leukemia warranted a dispositional departure. The district court declined to
depart and sentenced appellant t o concurrent prison sentences o f 21 months for the
domestic-assault offense and 60 months for the ammunition-posse ssion offense. It also
imposed 30-month sentences for each of the DANCO-violations, al l to run concurrent to
the other sentences.
This appeal followed.
D E C I S I O N
I. Appellant’s guilty plea to th e ammunition-possession offense was valid.

Appellant argues that he should be permitted to withdraw his gu ilty plea to the
ammunition-possession offense beca use his testimony during the plea hearing did not
establish a factual basis adequate to support his guilty plea. The state argues that we should
not review appellant’s guilty-plea challenge because the issue should have been raised in a
postconviction petition.
Appellant did not move the district court to withdraw his guilt y plea. But because
a defendant may appeal directly from a judgment of conviction contending that the record
made at the time the plea was entered is inadequate, appellant need not first have raised the
issue in a postconviction petition. Brown v. State , 449 N.W.2d 180, 182 (Minn. 1989);

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State v. Johnson, 867 N.W.2d 210, 214 (Minn. App. 2015), review denied (Minn. Sept. 29,
2015).
Appellate courts review the validity of a guilty plea de novo. State v. Raleigh, 778
N.W.2d 90, 94 (Minn. 2010). There is no absolute right to with draw a guilty plea after it
has been entered. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). However, a court
must allow withdrawal of a guilty plea if “withdrawal is necess ary to correct a ‘manifest
injustice.’” Raleigh, 778 N.W.2d at 94 (quoting Minn. R. Crim. P. 15.05, subd. 1). A
manifest injustice occurs if a plea is invalid. Id. at 94. A constitutionally valid plea must
be voluntary, intellig ent, and accurate. Id.; see also Perkins , 559 N.W.2d at 688. A
defendant bears the burden of showing that his plea was invalid . Lussier v. State , 821
N.W.2d 581, 588 (Minn. 2012).
A plea must be accurate to ensure that a defendant is not plead ing guilty to a more
serious crime than that for which he could be convicted at trial. Id. An accurate plea must
be established on a proper factual basis. State v. Theis, 742 N.W.2d 643, 647 (Minn. 2007).
A proper factual basis exists “if the 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 v. State, 880 N.W.2d 852, 859 (Minn.
2016) (quotation omitted).
“Ordinarily, an adequate factual b asis is established by questi oning the defendant
and asking the defendant to explain in his or her own words the circumstances surrounding
the crime.” Williams v. State, 760 N.W.2d 8, 12 (Minn. A pp. 2009) (quotation omitted),
review denied (Minn. Apr. 21, 2009). The supreme court has cautioned against the use of

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exclusively leading questions to establish a proper factual basis for a guilty plea. Lussier,
821 N.W.2d at 589. But a defendant may not withdraw his guilty plea as inaccurate if the
record contains sufficient evidence to support the conviction. Id.
The state charged appellant with possession of ammunition by an ineligible person
under Minn. Stat. § 624.713, subd. 1(2). That statute provides that “a person who has been
convicted of, or adjudicated delinquent or convicted as an exte nded jurisdiction juvenile
for committing . . . a crime of violence” is ineligible to possess “ammunition or a pistol or
semiautomatic military-style assault weapon.” Minn. Stat. § 624.713, subd. 1 (2016). The
state was required to prove that (1) appellant knowingly posses sed ammunition or
consciously exercised dominion and control over it; (2) appella nt had been convicted of,
or adjudicated delinquent or had convictions for, committing a crime of violence; and
(3) that appellant possessed the ammunition on August 1, 2017, in Dakota County.
10A Minnesota Practice, CRIMJIG 32.21 (Supp. 2018).
At the time of appellant’s guilty-plea hearing, the state did not contend that appellant
had actual possession of the amm unition on August 1, 2017. The only question was
whether appellant constructively possessed the ammunition. To establish constructive
possession, the state needed to sh ow either that the prohibited item was found in a place
under appellant’s exclusive control to which other people did not normally have access, or
if the prohibited item was found in a place to which others had access, there was a strong
probability that appellant was c onsciously exercising dominion and control over it. See
State v. Florine, 226 N.W.2d 609, 611 (Minn. 1975).

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Appellant argues that his plea was inaccurate because he did no t admit during the
plea colloquy that he possessed the ammunition. He asserts that his answer to his lawyer’s
question only conceded that he did not deny possessing the ammunition and that he never
affirmatively admitted possessing it.
During the plea colloquy, appellant testified that law enforcement entered his home
and found ammunition. Appellant ’s counsel asked appellant, “An d, you don’t deny that
the ammunition was yours, correct?” Appellant answered, “Yes.” Appellant then admitted
that he was ineligible to posse ss the ammunition. Neither the district court, appellant’s
counsel, nor the prosecution aske d any further questions as to the possession element.
Despite defense counsel’s ques tion concerning whether appellant “do[es] not deny” that
the ammunition was his, the plea colloquy was, in context, suff icient to amount to an
admission to possession. Just moments before that question and answer, appellant was
asked how he wished to plead to the unlawful-possession charge. He replied “guilty.” The
lawyers and the court discussed the charge related to unlawful possession of ammunition,
and it was after that exchange that the challenged “non-denial” answer was given.
We are satisfied that appellant’s testimony sufficiently admitt ed his having
possessed the ammunition, and the transcript contains nothing t o indicate that appellant
was disputing that element of th e offense or that he was uncert ain of the effect of his
answers. Cf. State v. Iverson , 664 N.W.2d 346, 350 (Minn. 2003) (stating that if a
defendant’s plea colloquy negates an essential element of the c harged crime, the factual
basis is inadequate). Although the questioning was not robust, and the district court should
have required more than a non-denial, in the context of the gui lty plea, appellant’s

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testimony in the overall context of the plea hearing provided a sufficient factual basis to
establish that he consciously exercised dominion and control over the ammunition within
the meaning of Minn. Stat. § 624 .713, subd. 1(2). His testimon y satisfied the possession
element.
II. On this record, we are unable to discern whether the distri ct court erred by
sentencing appellant for each sep arate DANCO violation, and we therefore
remand to the district court to make findings concerning whether the DANCO
violations are part of the same behavioral incident.

Appellant argues that the district court erred by imposing sent ences for each
DANCO-violation offense, because the offenses “shared a unity o f time, place, and
criminal objective.” Appellant asks us to vacate three of the DANCO-violation convictions
and sentences.
The state argues in reply that we should remand for additional findings because the
record does not contain sufficien t information to review the di strict court’s sentence.
Although appellant did not raise this issue at sentencing, an a ppellate court is not
necessarily precluded from reviewing the issue despite appellant not having raised it to the
district court. See Spann v. State , 740 N.W.2d 570, 573 (Minn. 2007) (stating that an
appellant does not waive his ri ght to challenge an unauthorized s e n t e n c e o n a p p e a l b y
failing to raise the issue at sentencing).
Even if a defendant is convict ed of multiple offenses, a distri ct court may only
impose a single sentence if the offenses arose out of a single behavioral incident. Minn.
Stat. § 609.035, subd. 1 (2016); State v. Williams , 608 N.W.2d 837, 841 (Minn. 2000).
Appellate courts apply a clear-error standard of review to a district court’s factual findings

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underlying the determination of whether multiple offenses constituted a single behavioral
incident, State v. O’Meara, 755 N.W.2d 29, 37 (Minn. App. 2008), and a de novo standard
of review to the ultimate determination, State v. Bauer, 776 N.W.2d 462, 477 (Minn. App.
2009), aff’d, 792 N.W.2d 825 (Minn. 2011); State v. Marchbanks, 632 N.W.2d 725, 731
(Minn. App. 2001).
The district court convicted and sentenced appellant for four s eparate DANCO
violations under Minn. Stat. § 629.75, subd. 2(d)(1). To be convicted of a felony DANCO
violation, the defendant “must have intentionally engaged in prohibited conduct, knowing
that such contact was prohibited.” State v. Watkins , 820 N.W.2d 264, 265 (Minn. App.
2012), aff’d on other grounds , 840 N.W.2d 21 (Minn. 2013). In determining whether
intentional crimes are part of a single behavioral incident, ap pellate courts focus on the
factors of time and place and consider whether the segments of conduct were motivated by
a desire to obtain a single criminal objective. Bauer, 776 N.W.2d at 478.
At sentencing, it is the state’s burden to prove by a preponder ance of the evidence
that the conduct underlying the o ffenses did not occur as part of one behavioral incident.
Williams, 608 N.W.2d at 841-42. But, on appeal, it is appellant’s burden to show that the
district court erred. See Waters v. Fiebelkorn, 13 N.W.2d 461, 464-65 (Minn. 1944) (“[O]n
appeal error is never presumed. It must be made to appear affi rmatively before there can
be reversal. . . . [And] the burden of showing error rests upon the one who relies upon it.”).
Although the district court implicitly determined that the four DANCO violations
did not arise from one behavioral incident, the absence of expr ess findings on that issue
precludes our effective review of it. The district court provi ded no explanation for its

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d e c i s i o n . W e a g r e e w i t h t h e s t a t e t h a t t h e r e c o r d i s i n s u f f i c ient to review whether the
district court erred in imposing separate sentences for each offense.
The district court’s reasoning is necessary for review in this case, because the phone
calls occurred at separate times, and the record reveals nothin g about appellant’s
motivation, intent, or purpose for each of the calls. The record is insufficiently developed
about the content of each of th e calls between appellant and T. K. Because appellant did
not raise this issue to the district court, the state had no occasion to prove that the multiple
phone calls were not part of one behavioral incident. See State v. Outlaw , 748 N.W.2d
349, 356 (Minn. App. 2008) (remanding the issue of whether out-of-state convictions were
felonies for sentencing purpose s, and permitting the state on r emand “to further develop
the sentencing record”), review denied (Minn. July 15, 2008).
Because we are unable, on this record, to determine whether the district court erred
in imposing multiple sentences, we remand to the district court to make findings
concerning whether the DANCO violations were part of one behavioral incident.1
Affirmed in part and remanded.

1 On remand, the district court may, in its discretion, reopen the record.