Kelsey Anna Ballman, petitioner, Appellant,

This opinion will be unpublished and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
A18-1979

Kelsey Anna Ballman, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 22, 2019
Reversed and remanded
Hooten, Judge

Le Sueur County District Court
File No. 40-CR-12-1347

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

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

Brent Christian, Le Sueur County Attorney, Jason L. Moran, Assistant County Attorney,
Le Center, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this appeal from the denial of a postconviction petition, appellant claims that she
should be allowed to withdraw her 2013 guilty plea in order to prevent a manifest injustice.

2
Because the district court erred when it modified the terms of appellant’s guilty plea
without calling on appellant in open court to either affirm or withdraw her plea, we reverse
and remand with instructions to allow appellant to withdraw her guilty plea.
FACTS
Appellant Kelsey Anna Ballman argues that she should be allowed to withdraw her
March 5, 2013 guilty plea to felony theft under Minn. Stat. § 609.52, subd. 2 (2012). She
claims that the district court erred when it modified her plea agreement without calling on
her to either affirm or withdraw her plea and failed to grant her the benefit of her plea
agreement with the state.
In October of 2012, appellant took her aunt’s ring, valued at more than $1,000, and
gave it to her boyfriend to pawn. State v. Ballman, No. A18-0746, 2019 WL 178540, at
*1-2 (Minn. App. Jan. 14, 2019). The state charged her with felony theft as noted above.
In March of 2013, appellant agreed to plead guilty to the charged offense in exchange for
a stay of adjudication with probation of up to three years. The district court did not accept
her plea and instead informed appe llant that i t was going to wait for the pre sentence-
investigation report (PSI). The PSI acknowledged the agreement for three years, but
recommended that if appellant received a stay of adjudication, she be placed on felony
probation for five years. At th e April 2013 sentencing hearing, appellant’s attorney
informed the court that both he and appellant had read the PSI and had “no factual additions
or corrections.”
The district court equivocated on whether to accept the plea granting the stay of
adjudication, but eventually agreed to accept it after both the prosecutor and appellant

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asked the district court to accept the plea and sentence appellant in accordance with the
PSI. Appellant’s att orney actually asked or moved the court three separate times to
sentence appellant in accordance with the PSI. After both parties asked it to accept
appellant’s guilty plea and sentence in accordance with the PSI, the district court did so,
sentencing appellant to a stay of adjudication and imp osing a five-year probation ary
sentence. Appellant did not object to the imposition of the five -year probationary term at
that time.
Now, over six years after appellant pleaded guilty, she appeals, asking this court to
either allow her to withdraw her guilty plea or order specific performance of her initially
agreed upon three-year probationary sentence. On January 30, 2017, after the expiration
of three years of probation but before the five-year probationary period actually expired, a
probation violation report was filed in district court. After appellant admitted to this
violation and ple aded guilty to a new charge, and then violated her probation two more
times, the district court revoked appellant’s stay of adjudication and sentenced her to an
executed sentence of one year and one day in prison for the 2013 conviction for felony
theft.
Appellant initially challenged the district court’s revocation of her probation, and in
the same appeal, argued that her initial guilty plea was invalid because she did not receive
the three-year probationary sentence that she bargained for. Ballman, 2019 WL 178540,
at *1. We rejected appellant’s claim that the district court abused its discretion when it
revoked her probation. Id. We also concluded that the issue of whether appellant’s initial
guilty plea was valid was not properly before the court because that appeal was f rom a

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revocation of appellant’s probation, and not from either a postconviction proceeding or
from entry of the sentence itself. Id. at *2-3.
While appellant’s first appeal was pending, appellant filed a postconviction petition
with the district court, a rguing that her 2013 guilty plea was not valid. Also before
appellant’s appeal was resolved, the district court denied appellant’s petition. This appeal
follows from the denial of appellant’s postconviction petition.
D E C I S I O N
This case requires us to determine whether the postconviction court abused its
discretion when it refused to allow appellant to withdraw her guilty plea. Sanchez v. State,
890 N.W.2d 716, 719 –20 (Minn. 2017). “ A postconviction court abuses its discretion
when its decision is based on an erroneous view of the law or is against logic and the facts
in the record.” Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation omitted). “We
review findings of fact for clear error and issues of law de novo.” Sanchez, 890 N.W.2d at
720. There is no absolute right to withdraw a guilty plea, but a guilty plea may be
withdrawn “upon a timely motion and proof . . . that withdrawal is necessary to correct a
manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice occurs when a
guilty plea is not accurate, voluntary, or intelligent. State v. Theis, 742 N.W.2d 643, 646
(Minn. 2007). To be intelligent, the guilty plea must be knowing and understanding to
“insure that the defendant understands the charges, the rights being waived and the
consequences of the guilty plea.” Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).
Appellant claims that her guilty plea was unintelligent because her plea agreement
required that the district court either sentence her to no more than three years of probation

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or explicitly reject her plea and allow her the option to proceed to trial. Appellant also
argues that her plea was involuntary because it was induced by an unfulfilled promise by
the state that she would receive three years of probation, and that we should either allow
her to withdraw he r guilty plea or grant her specific performance by retroactively
sentencing her to three years of probation. Respondent argues that we should reject
appellant’s argument because it is not timely.
The district court did not address the question of whether appellant’s motion was
timely in its order denying appellant’s postconviction petition . Instead, it appears to have
relied on the fact that appellant was represented by counsel at all times during the plea and
sentencing process to conclude that appellant’s plea was accurate , voluntary, and
intelligent. However, the district court also made a factual finding that appellant’s plea
agreement was for a “stay of adjudication and up to three years of probation.”
Timeliness
Addressing first the issue of timeliness, respondent relies on the language in Minn.
R. Crim. P. 15.05, subd. 1, which requires a “timely” moti on to withdraw a guilty plea.
Whether a motion for plea withdrawal is timely is a question of law subject to de novo
review. See Kubrom v. State, 863 N.W.2d 88, 91 (Minn. App. 2015).
Respondent cites to cases where Minnesota courts have applied an independent
meaning to this requirement. See State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986)
(holding that an 11 -month delay in moving to withdraw a guilty plea was not timely) ,
review denied (Minn. Feb. 14, 1986); Doughman v. State, 351 N.W.2d 671, 674–75 (Minn.
App. 1984) (holding that a 22 -month delay in moving to withdraw a guilty plea raised a

6
question as to the legitimacy of appellant’s claims that his guilty plea was not voluntary) ,
review denied (Minn. Oct. 16, 1984). But these cases came before the codification of a
statutory timeliness requirement in the form of the 2005 amendments to Minn. Stat.
§ 590.01, subd. 4 (2018). See Lussier v. State , 821 N.W.2d 581, 586 n.2 (Minn. 2012)
(noting that after the 2005 amendments to Minn. Stat. § 590.01 , delays in filing a motion
to with draw a guilty plea are treated no differently than delays in filing a petition for
postconviction relief). And after those amendments took effect , it appears that the
Minnesota Supreme Court abrogated the earlier caselaw cited by respondent. See id. ;
James v. State, 699 N.W.2d 723, 728 (Minn. 2005) (“[W]e conclude that there is no reason
to treat timeliness under Rule 15.05 differently from the manner in which delays in filing
petitions for postconviction relief are treated.”).
Therefore, the cases cited by respondent are inapposite, and in evaluating whether
appellant’s postconviction petition was timely, we look exclusively to the requirements in
Minn. Stat. § 590.01, subd. 4. That statute requires that petitions for postconviction relief
be filed within two years of “ the entry of judgment of conviction or sentence if no direct
appeal is filed.” Minn. Stat. § 590.01, subd. 4(a)(1). Here, while appellant pleaded guilty
in 2013 and received a stay of adjudication upon sentencing, she was not actually convicted
of the offense until February 26, 2018, when her stay of adjudication was revoked and she
was convicted and sentenced. And appellant filed the petition for postconviction relief on
August 17, 2018, well within two years of actually being convicted and sentenced for the
charge that is the subject of this appeal . Furthermore, respondent conceded at oral

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argument that appellant met the two -year postconvi ction timeliness requirement. We
therefore hold that appellant’s postconviction petition was timely.1
Plea agreement
Appellant claims that her guilty plea was unintelligent because her plea agreement
required that the district court either sentence her to no more than three years of probation
or explicitly reject her plea and allow her the option to proceed to trial. See Minn. R. Crim.
P. 15.04, subd. 3(1). Appellant also argues that she is entitled to plea withdrawal because
the district court did not comply with Minn. R. Crim. P. 15.04, subd. 3(1).
When a plea is entered and the defenda nt questioned, the
[district] court judge must reject or accept the plea of guilty on
the terms of the plea agreement. . . . If the court rejects the plea
agreement, it must advise the parties in open court and then call
upon the defendant to either affirm or withdraw the plea.

Minn. R. Crim. P. 15.04, subd. 3(1). If a district court rejects an agreement as to sentence
without complying with the requirement in Minn. R. Crim. P. 15.04, subd. 3(1), by calling
on the defendant in open court to either affir m or withdraw the plea, the only remedy that
the defendant is entitled to is plea withdrawal. See State v. DeZeler, 427 N.W.2d 231, 234
(Minn. 1988) (“[I]f the trial court rejects an agreement as to sentence, the defendant is
entitled to withdraw his plea.”); see also Melde v. State, 778 N.W.2d 376, 379 (Minn. App.
2010); In re Welfare of S.L., 663 N.W.2d 31, 34 (Minn. App. 2003); State v. Hamacher,

1 We note that respondent did not argue that the over five -year delay between the district
court granting a stay of adjudication and appellant’s postconviction petition constituted an
abuse of the judicial process. See McMaster v. State , 551 N.W.2d 218, 21 8–19 (Minn.
1996).

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511 N.W.2d 458, 460 (Minn. App. 1994); State v. Tyska , 448 N.W.2d 546, 549 (Minn.
App. 1989).
The postconviction court made a factual finding that the plea agreement required
that appellant receive a stay of adjudication and up to three years of probation .2 But after
granting the stay of adjudication, t he district court sentenced appellant to up to five years
of probation. Therefore, it rejected appellant’s “plea of guilty on the terms of the plea
agreement,” but did not either “advise the parties in ope n court” or “call upon [appellant]
to either affirm or withdraw the plea.” Minn. R. Crim. P. 15.04, subd. 3(1). 3
We therefore reverse the denial of appe llant’s postconviction petition and remand
to the district court with instructions to allow appellant to withdraw her guilty plea if she
so chooses.4
Reversed and remanded.

2 Respondent does not argue that appellant did not have a plea agreement for three years of
probation, or that the district court’s finding that the agreement was for three years of
probation was clearly erroneous.
3 While respondent arg ues that appellant’s plea was accurate, intelligent, and voluntary
because she was always represented by counsel , respondent cites to no authority which
excuses the district court’s failure to comply with the requirements of Minn. R. Crim. P.
15.04, subd. 3(1). That rule of criminal procedure places an affirmative obligation on the
district court. As above, the district court failed to comply with that obligation. Under this
rule, whether appellant was represented by counsel is irrelevant.
4 Because we conclude that the district court’s error in failing to call on appellant in open
court to either affirm or withdraw her guilty plea requires reversal and the specific remedy
of plea withdrawal, we do not reach appellant’s other argument that her guilty plea was
involuntary because it was induced by an unfulfilled promise by the state.