Erick Lamont Lindsey, 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This opinion will be unpublished and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
A19-0287

Erick Lamont Lindsey, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed October 21, 2019
Affirmed
Rodenberg, Judge

Ramsey County District Court
File No. 62-CR-16-1887

Cathryn Middlebrook, Chief Appe llate Public Defender, Michael M cLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, 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 Rodenb erg, Presiding Judge; Larkin, Judge; and
Stauber, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment 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
RODENBERG, Judge
Appellant Erick Lindsey appeals from the denial of his petition for postconviction
relief. He argues that (1) the factual basis for his guilty pl ea was insufficient to establish
that he was guilty of first-degree driving while intoxicated (DWI) because the plea colloquy
consisted of leading questions and (2) the plea record does not establish all of the elements
of first-degree DWI because an incorrect court file number was used to identify his third
qualified prior impaired driving incident, and the remaining record does not establish that
element. We affirm.
FACTS
On March 13, 2016, police officers stopped the car appellant was driving. Appellant
admitted to officers that he had consumed alcohol before drivin g. He provided a breath
sample which showed an alcohol concentration of 0.22, and the state charged him with two
counts of first-degree DWI under Minnesota Statutes sections 16 9A.20 and 169A.24
(2014). The complaint’s probable cause statement listed appell ant’s qualified prior
impaired driving incidents within the past ten years, including the sentencing date, level of
conviction, and court file number for each incident. The third qualified prior impaired
driving incident was described i n the complaint using the corre ct date and level of
conviction, but recited an incorrect court file number: “On Ap ril 24, 2012, Lindsey was
sentenced on a misdemeanor DWI in Ramsey County District Court file 62-CR-12-10.”
The correct court file number is 62-CR-12-210.

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Appellant pleaded guilty to one count of felony DWI in exchange f o r t h e s t a t e
dismissing the remaining count. During the plea colloquy, the prosecutor again identified
appellant’s third qualified prior impaired driving incident usi ng the correct date, but the
incorrect court file number. The district court found a suffic ient factual basis to support
the guilty plea. The district c ourt judge accepted the guilty plea and sentenced appellant
to 40 months in prison.
Appellant petitioned for postconviction relief arguing that, because the plea record
does not support his conviction, his offense of conviction shou ld be reduced from first-
degree to second-degree DWI, and he should be resentenced. In the alternative, appellant
argued that he should be permitted to withdraw his guilty plea.
The district court denied the petition for postconviction relie f, finding that the use
of the wrong court file number did not negate appellant’s testi mony admitting three
qualified prior impaired driving i ncidents. It concluded that the elements of first-degree
DWI were sufficiently established by appellant’s plea testimony.
This appeal followed.
D E C I S I O N
Appellate courts “review the denial of a petition for postconviction relief . . . for an
abuse of discretion.” Reed v. State, 925 N.W.2d 11, 18 (Minn. 2019). A postconviction
court “abuses its discretion if it exercised its discretion in an arbitrary or capricious manner,
based its ruling on an erroneous view of the law, or made clear ly erroneous factual
findings.” Id. (quotation omitted). The legal conclusions of a postconvictio n court are
reviewed de novo. Fox v. State, 913 N.W.2d 429, 433 (Minn. 2018).

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There is no absolute right to withdraw a guilty plea after it has been entered. Perkins
v. State, 559 N.W.2d 678, 685 (Minn. 1997). “[A] court must allow withdrawal of a guilty
plea if withdrawal is necessary to correct a ‘manifest injustic e.’” State v. Raleigh , 778
N.W.2d 90, 94 (Minn. 2010) (quoting Minn. R. Crim. P. 15.05, su b d . 1 ) . A m a n i f e s t
injustice occurs if a plea is not valid. Id. A constitutionally valid plea must be voluntary,
intelligent, and accurate. Id.; see also Perkins, 559 N.W.2d at 688. A defendant bears the
burden of showing that the plea was invalid. Lussier v. State, 821 N.W.2d 581, 588 (Minn.
2012).
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 “i f the record contains a
showing that there is credible e vidence available which would s upport a jury verdict that
defendant is guilty of at least a s great a crime as that to whi ch he pled guilty.” Nelson v.
State, 880 N.W.2d 852, 859 (Minn. 2016) (quotation omitted).
The plea colloquy establishes the elements of first-degree DWI and provides a proper
factual basis for appellant’s guilty plea.

Appellant pleaded guilty to first-degree DWI under Minn. Stat. § 169A.20 and
Minn. Stat. § 169A.24. The elements of the relevant first-degree DWI statute include that
the offense was committed “within ten years of the first of thr ee or more qualified prior
impaired driving incidents.” M inn. Stat. § 169A.24, subd. 1(1) . A “qualified prior
impaired driving incident” means “prior impaired driving convic tions and prior impaired
driving-related losses of license.” Minn. Stat. § 169A.03, sub d. 22 (2014). A prior DWI

5
conviction is a qualified prior impaired driving incident. Min n. Stat. § 169A.03, subd.
20(1) (2014).
Appellant first argues that the record does not establish that he has the three qualified
prior impaired driving incidents necessary to prove first-degre e DWI under Minn. Stat.
§ 169A.24 because he does not have a DWI conviction in the third court file number used
in the complaint and during the plea colloquy. The state argues that the use of the wrong
court file number is a simple clerical error and that the plea colloquy suffices.
The parties agree that the court file number for appellant’s th ird prior offense was
incorrectly stated in the compl aint and at the plea hearing. T he court file number used
relates to someone other than appellant. The recited file number is one digit different than
the correct court file number. Appellant does not argue that he did not have a third qualified
prior impaired driving incident.
The following factual basis was established at the plea hearin g concerning
appellant’s three qualified prior impaired driving incidents:
STATE: And lastly, Mr. Lindsey, you’ve been arrested and
convicted of drunk driving before, right?
APPELLANT: Yes.
STATE: Specifically, you were convicted in Ramsey County
District Court File—I’m just going to name the file number
that I pulled from your records, and if you have a reason to
disagree with it, please let me know. But it was file number
62-CR-14-1545. And in that file, back on March 6, 2014,
about two years ago, you were convicted of gross misdemeanor
DWI. Does that sound right?
APPELLANT: Yes, sir.
STATE: And the previous fall, back in 2013, October 4
th,
2013, were you also convicted of DWI then?
APPELLANT: Yes.

6
STATE: And for the record, you have no reason to disagree
with the fact that’s Ramsey County District Court File Number
62-CR-13-7698?
APPELLANT: Yes.
STATE: And lastly, sir, back the year before, so about four
years ago we’re talking about, April 24th, 2012, was that
another day you were convicted of DWI?
APPELLANT: Yes.
STATE: And that was again here in Ramsey County in court
file 62-CR-12-10?
APPELLANT: Yes.
STATE: And you understand that those three prior DWI
convictions of yours, they’ve all occurred in the last ten years?
APPELLANT: Yes.
STATE: And that’s what enhances this current offense to a
felony level, is the fact that you have three or more other DWIs
in the last decade?
APPELLANT: Yes.

Appellant also answered “yes” w hen asked if he pleaded guilty i n each of the previous
offenses referenced by the state.
None of appellant’s statements during the plea hearing negate t he qualified-prior-
impaired-driving-incidents element. See State v. Iverson , 664 N.W.2d 346, 350 (Minn.
2003) (stating that a factual basis is inadequate if defendant makes statements during the
plea hearing that negate an essen tial element of the charged cr ime as such statements are
inconsistent with a plea of gu ilty). The plea colloquy establi shes the correct dates for all
three of appellant’s qualified prior impaired driving incidents. Although the third of those
prior incidents was referred to using an incorrect court file n umber, appellant admitted to
having thrice been convicted of DWI. Appellant admitted all th r e e o f h i s p r i o r D W I
convictions when asked about each one during the plea colloquy. These admissions suffice
to establish that he did have three qualified prior impaired driving incidents. The state was

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not required to prove the court file number for each of appellant’s qualified prior impaired
driving incidents because the court file number is not an element of the offense.1 The three
prior convictions were admitted and thereby proved.
The plea colloquy sufficiently e stablishes the elements of firs t-degree DWI and
provides a proper factual basis for appellant’s guilty plea.
Leading questions do not render appellant’s guilty plea inaccurate.
Appellant also argues that his guilty plea was inaccurate and t herefore invalid
because the factual basis for his plea was established “exclusively” using leading questions.
“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. App. 2009), review denied (Minn.
Apr. 21, 2009). A “court should be particularly wary of situat ions in which the factual
basis is established by asking a defendant only leading questio ns.” Raleigh, 778 N.W.2d
at 94. District courts are “encourage[d] . . . to take an active role in asking direct questions
of defendants during plea hearings.” Id. at 95. “The use of leading questions is therefore
disfavored, but it does not by itself invalidate a guilty plea. ” Barnslater v. State , 805
N.W.2d 910, 914 (Minn. App. 2011).
Appellant argues that, if a plea colloquy consists largely of l eading questions, the
responses to those questions must be disregarded in determining whether the factual basis
for the plea suffices.

1 The correct court file number does appear elsewhere in the record in an older presentence
investigation report.

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First, in arguing that leading qu estions rendered his plea inac curate, appellant
misapprehends Shorter v. State, 511 N.W.2d 743 (Minn. 1994). The decision in Shorter
rested upon the supreme court’s supervisory powers. 511 N.W.2d at 747. Shorter did not
create a rule of law that a guilty plea is inaccurate if leadin g questions are used; neither
does it require that the remaining record after disregarding re sponses to leading questions
must establish every essential element of the crime in order fo r the factual basis to be
sufficient. See id.
Second, while many of the questi ons asked of appellant during t he plea colloquy
elicited “yes” and “no” answers, the questions were phrased in a way that asked appellant
to confirm information as true. The questions were not of the “isn’t it true that” variety.
And a number of appellant’s responses to the state’s questions were narrative. Moreover,
the district court took an active role in questioning appellant . The district court stopped
the state’s questioning of appellant at three separate points t o ask its own questions. In
total, the district court asked over 20 questions of appellant during the plea hearing.
Appellant also actively discussed his answers with the district court judge.
The postconviction court did not err in determining that appellant’s guilty plea was
valid based upon the factual basis provided at the plea hearing.
Affirmed.