State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1059

State of Minnesota,
Respondent,

vs.

Joshua Raymond Armendariz,
Appellant.

Filed January 11, 2021
Affirmed
Hooten, Judge

Blue Earth County District Court
File Nos. 07-CR-18-319, 07-CR-17-4136, 07-CR-17-4198, 07-CR-18-5197

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

Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County
Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean M. McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Smith, Tracy M. , Judge; and
Halbrooks, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this appeal from the denial of his postconviction petition, a ppellant claims that
he must permitted to withdraw his guilty plea because the district court violated the plea
agreement by imposing consecutive, rather than concurrent, sentences for his multip le
convictions. Appellant argues that he did not voluntarily agree as a condition to concurrent
sentences that he remain law abiding between the time of his plea and his sentencing
hearing, and that, even if he had agreed, the district court erred by concluding that he failed
to remain law abiding. We affirm.
FACTS
The charges and guilty pleas
In 2017 and 2018, appellant Joshua Armendariz was charged with multiple offenses
in Blue Earth County. He pleaded guilty to the following charges: (1) one count of felony
threats of violence, (2) one count of felony domestic assault, (3) a felony violation of a no-
contact order, (4) felony fleeing a po lice officer in a motor vehicle, and (5) a gross -
misdemeanor DWI. All remaining charges were dismissed as part of a plea agreement.
The plea petitions and plea hearing
Before the plea hearing, Armendariz reviewed and signed four plea petitions for the
four separate matters in which he was entering guilty pleas, describing th e terms and
conditions of his agreement. All four petitions specified concurrent sentences, but none
contained a condition that Armendariz must remain law abiding in order to be sentenced
concurrently.

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At the outset of the plea hearing, the district cou rt explained that the attorneys “did
their best to summarize what the resolution was” before entering the courtroom. The
district court stated that he would recite the agreement and instructed Armendariz, “I want
you, your attorney and the State to let me know if, ah, you think I understand it correctly. ”
After detailing the agreement in the signed plea petitions, the district court explained that
the concurrent sentencing described in the written agreement was dependent on
Armendariz remaining law abiding:
The agreement, as I understand it, would call for all four of
these files, ah and five counts to be sentenced concurrently so
long as Mr. Armendariz remains law abiding between his re —
ah, between his plea and the date he appears for sentencing.
Um, if M r. Armendariz fails to remain law abiding, the State
would then, if it so desired, argue that the sentences, either
entirely or-or in part, should be sentenced consecutively.

After confirming that each attorney correctly understood the agreement, the district court
asked Armendariz, “Mr. Armendariz, you’ve heard me give my recitation. Does that
recitation accurately represent your understanding of the resolution?” Armendariz
responded, “Yes.” Next, the judge asked Armendariz, “Having heard that, is it your
intention and desire to enter into that resolution today?” Armendariz answered, “Yes, it
is.”
The district court reviewed Armendariz’s trial rights with him and found his waivers
to be intelligent. Then, the district court questioned Armendariz regarding his reasons for
entering into the plea agreement, asking, “Do some of those reasons also pertain to the
agreement that three of the files will be dismissed . . . and there’s an agreement, contingent
on law abiding behavior, that your sentence would be concurrent? Are -are those all

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benefits you recognize?” Armendariz replied, “Yes.” After the district court found
Armendariz’s waivers to be voluntary, it accepted his gu ilty pleas. Next, the district court
asked Armendariz, “[D]o you feel you understand the significance of the agreement that
the sentences, per agreement, would be concurrent so long as you’re law abiding between
now and sentencing?” Armendariz replied, “ Yes.” The district court then asked
Armendariz, “So you understand, to some degree, you’ve got a lot to lose if that doesn’t
go that way? Is that correct?” Armendariz responded, “Correct.” Finally, the district court
ordered a presentence investigation (PSI).
Presentencing events
Between the plea hearing and sentencing, Armendariz was arrested for failing to
complete the PSI. Armendariz was charged with felony violation of a no-contact order for
circumstances surrounding the arrest. He was also cha rged with three felonies and a gross
misdemeanor for his behavior in jail following the arrest. The state charged Armendariz
for these incidents in district court files 07 -CR-19-1307 and 07 -CR-19-1099. These
matters were unresolved at sentencing.
The PSI report contains the following comments regarding Armendariz’s behavior
between the plea hearing and sentencing:
The defendant has been non -compliant with probation, law
enforcement, correctional staff, and the Court. On 3/11/2019,
an apprehension and d etention order was issued by probation
for the defendant because of his alleged non -compliance with
his conditions of release. On 3/17/2019, the defendant was
involved in an 11 hour standoff with law enforcement where
he locked himself in a house while he made threatening
statements against law enforcement. Currently, the defendant
is in custody in the Blue Earth County Jail. The defendant has

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been both threatening and assaultive to jail correctional staff.
On 3/22/2019, the defendant assaulted a jail corre ctional
officer by throwing a food tray at the officer’s head. In addition
to assaultive behavior, the defendant caused approximately
$500.00 in damages to the Blue Earth County Jail. The
defendant’s history of non -compliance and on -going criminal
behavior is troublesome. It seems highly likely he will continue
to engage in illegal behavior and it is this agent’s opinion, the
defendant possesses a significant threat to the community if
released.

The PSI report also recommended consecutive sentencing.
Nothing in the record suggests that Armendariz sought to withdraw his plea before
sentencing.
Sentencing
Armendariz appeared with his defense counsel in district court for sentencing at a
combined hearing on the multiple court files. The four files in whic h Armendariz had
entered guilty pleas were set for sentencing, and district court file 07 -CR-19-1099,
pertaining to the charge for the felony no -contact order violation, was set for an omnib us
hearing. The complete record before the district court at the time of sentencing included
the record contained in 07-CR-19-1099.
At sentencing, the state provided the following summary of its claim that
Armendariz failed to remain law abiding between the plea hearing and sentencing:
[I]mmediately after [Defendant] was released [at his plea
hearing,] he went right back to the, ah, residence where he was
prohibited from going to. Ah, in fact, he had to be —ah, the
tactical team, in fact, had to go to that residence and attempt to
get him out of that residence. Additio nally, while in jail
awaiting sentencing, he’s assaulted a custody officer and he
now has felony charges for that offense and for the felony
DANCO violation that he recei ved while he was out on

6
custody—ah, while he was out of custody pending sentencing.
This [c]ourt was very clear to the defendant and the—the State
was very clear to the defendant that if he didn’t remain law
abiding that we were gonna likely ask for consecutive
sentencing. And you informed the defendant—

Armendariz interjected: “Waste of breath, man.” Then, the state continued its
summary by stating “that he had to remain in good behavior, and he has not done that. ”
The state argued that the PSI recommended consecutive sentencing due to Armendariz’s
failure to remain law abiding. Defense counsel requested concurrent sentencing:
[W]hen Mr. Armendariz entered his plea it was to the
agreement that he would be sentenced to 30 months, um,
everything would run concurrent, ah, which would be the
sentences in, ah 319, 4198, 4136 and 5197. He is asking the
Court to follow that agreement. * * * [H]e is asking the Court
to sentence him according to the agreement that was made
between the State and himself.

Nothing in the record from the sentencing hearing suggests that Armendariz either
challenged the PSI or denied any of the evidence that he had failed to remain law -abid ing.
Before allocution, the district court asked if there was “any additional record anyone
wishe[d] to make before [proceeding to allocution]?” Defense counsel noted Armendariz’s
attempts to complete the PSI, but made no denial of his failure to remain law abiding.
Armendariz then exercised his right to allocution, again entering no denial that he had
failed to remain law abiding.
The district court stated that his recollection , notes, and the record reflected that
Armendariz’s sentences would be concurrent as long as he remained law abiding between
the plea and sentence. The district court then sentenced Armendariz to consecutive
sentences totaling sixty-nine months and three days.

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Postconviction proceedings
Armendariz filed a notice of appeal to this court. We stayed the appeal and
remanded the case to the district court for postconviction proceedings. Armendariz then
filed a postconviction petition, challenging the volu ntariness of his plea. Armendariz
argued that (1) the imposition of a 33 -month sentence in file 07 -CR-17-4136 violated his
plea agreement, (2) imposition of consecutive sentencing violated the terms of his
agreements, and (3) being charged with a new offense did not violate any conditions of his
plea. The postconviction court amended Armendariz’s sentence in file 07 -CR-17-4136.
However, it denied Armendariz’s claims that his plea was involuntary by concluding that
(1) Armendariz’s plea allowed for consec utive sentencing if he failed to remain law
abiding, and (2) findings that Armendariz failed to remain law abiding were implicit in ,
and supported by, the record.
This court dissolved the stay and reinstated Armendariz’s appeal.
DECISION
This case requires us to determine whether the postconviction court abused its
discretion when it refused to allow Armendariz to withdraw his guilty plea. Sanchez v.
State, 890 N.W.2d 716, 719 –20 (Minn. 2017). “A postconviction court abuses its
discretion when it has exercised its discretion in an arbitrary or capricious manner, based
its ruling on an erroneous view of the law, or made clearly erroneous factual findings. ”
Pearson v. State , 891 N.W.2d 590, 596 (Minn. 2017) (quotation omitted). “ We review
findings of fact for clear error and issues of law de novo .” Sanchez, 890 N.W.2d at 720.

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I. The district court did not violate the plea agreement by imposing consecutive
sentences, rather than concurrent sentences, based upon Armendariz’s failure
to remain law abiding between the time of his plea and the sentencing hearing.

Armendariz argues that the district court must allow him to withdraw his guilty plea
because his sentence violated the plea agreement. “ A defendant has no absolute right to
withdraw a guilty plea after entering it.” State v. Raleigh, 778 N.W.2d 90, 93 (Minn. 2010).
However, a district court “must allow” a defendant to withdraw a plea at any time if it is
necessary to correct a “manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A manifest
injustice results from an invalid guilty plea. Raleigh, 778 N.W.2d at 94 . To be valid, “a
guilty plea must be accurate, voluntary, and intelligent.” Id. at 94. Whether a plea is valid
is a question of law that we review de novo. Id. It is the defendant’s burden to show that
his or her plea was not valid. Alanis v. State , 583 N.W.2d 573, 577 (Minn. 1998).
A. Voluntariness of plea
Armendariz argues that his guilty plea was involuntary because he never agreed to
remain law abiding as a condition of concurrent sentencing. He also argues that the district
court improperly participated in the plea negotiations by adding a law-abiding condition to
the agreement.
“The voluntariness requirement insures that a guilty plea is not entered be cause of
any improper pressures or inducements.” State v. Brown , 606 N.W.2d 670, 674 (Minn.
2000) (quotation omitted). “A guilty plea is involuntary when it rests in any significant
degree on an unfulfilled or unfulfillable promise.” Uselman v. State, 831 N.W.2d 690, 693
(Minn. App. 2013) (quotation omitted). If an unqualified promise in a plea agreement is
not honored, then the guilty plea may be withdrawn. Kochevar v. State , 281 N.W.2d 680,

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687 (Minn. 1979). If this court determines that a plea agreement has been breached, it may
also “order specific performance, or alter the sentence if appropriate.” Brown, 606 N.W.2d
at 674. However, when a defendant seeks to withdraw a plea because the sentence deviates
from the plea agreement, there is no basis for the withdrawal if the sentence accords with
the plea agreement. See State v. Hamacher , 511 N.W.2d 458, 460 (Minn. App. 1994).
In determining whether a plea agreement has been violated, we must look at what
the parties to the plea bargain “reasonably understood to be the terms of the plea
agreement,” which is a question of fact. Raleigh, 778 N.W.2d at 96. Courts consider “all
of the relevant circumstances” in making this determination. State v. Danh , 516 N.W.2d
539, 544 (Minn. 1994) (quotation omitted). Factual findings are reviewed for clear error.
See State v. Robledo -Kinney, 615 N.W.2d 25, 32 (Minn. 2000). But “[i]ssues involving
the interpretation and enforcement of plea agreements” are reviewed de novo. Brown, 606
N.W.2d at 674.
Armendariz argues that the plea agreement specified unconditional concurrent
sentencing. He contends that the only conditions of the plea agreement were the ones found
in the plea petitions and that no conditions were added to the agreement at the plea hearing.
Thus, we must determine whether Armendariz’s plea agreement included a condition that
he remain law abiding between the time of his plea and the sentencing in order to receive
concurrent sentencing.
A guilty plea agreement includes both the terms of a written plea agreement as well
as any terms clearly and unequivocally expressed by the parties at a plea hearing. See In
re Ashman , 608 N.W.2d 853, 858 (Minn. 2000). A defendant, however, must be

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questioned on his understanding of the terms of the plea agree ment. Minn. R. Crim. P.
15.01, subd. 1. None of the petitions Armendariz signed contained a condition that he must
remain law abiding in order to be sentenced concurrently. However, because the plea
agreement includes any oral agreements expressed in th e plea hearing transcript, we must
consider it to determine the parties’ understanding of the plea agreement.
This court has previously upheld a guilty -plea agreement, even when the entire
agreement was not contained in the written petition and certain t erms were agreed to on
the record at the guilty-plea hearing. Hamacher, 511 N.W.2d at 459 –60. In Hamacher,
the defendant, Hamacher, sought to withdraw his guilty plea after the district court declined
to stay the execution of his sentence. Id. Hamacher’s petition stated that he would receive
a stayed sentence if the district court concluded that it was in the best interest of the victim’s
family. Id. at 459. When the district court could not reach this conclusion and executed
Hamacher’s sentence, Hamacher argued that he should be able to withdraw his plea. Id. at
460. The district court denied Hamacher’s request, and Hamacher appealed. We
concluded that although the petition was ambiguous, “[t]he plea agreement as explained
on the record at the guilty plea hearing did not promise Hamacher . . . a chance to withdraw
his guilty plea if the sentence were executed.” Id. Under the district court’s reasoning in
Hamacher, Armendariz’s guilty-plea agreement includes terms contained in the petitio n as
well as terms agreed to at the guilty-plea hearing.
Armendariz argues that he never agreed to remain law -abiding as a condition of
concurrent sentencing. He contends that he “ only indicated that he agreed with a lengthy
list of conditions and benefits; he was never asked specifically if he agreed to consecutive

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sentencing as a possible outcome for violating the court’s new condition. ” (E mphasis
omitted). Armendariz is correct that he was never asked this specific question. However,
Armendariz is essentially asking this panel to either misconstrue or ignore the questions
that Armendariz was asked and the conditions to which he agreed on the record.
A review of the transcript from the plea hearing confirms that Armendariz agreed
to remain law abiding from the date of his plea until he was sentenced in order to receive
concurrent, rather than consecutive, sentencing. At three separate points during the plea
hearing, Armendariz clearly and unequivocally stated on the record that he understood this
obligation. First, the district court asked Armendariz, “Do some of those reasons also
pertain to the agreement that three of the files will be dismissed . . . and there’s an
agreement, contingent on law abiding behavior, that your sentence would be concur rent?
Are-are those all benefits you recognize?” Armendariz replied, “Yes.” Second, the district
court asked, “Mr. Armendariz, do you -do you feel you understand the significance of the
agreement that the sentences, per agreement, would be concurrent so long as you’re law
abiding between now and sentencing?” Again, Armendariz replied, “Yes.” Third, the
district court asked Armendariz, “So you understand, to some degree, you’ve got a lot to
lose if that doesn’t go that way? Is that correct?” Armendariz responded, “Correct.” In
these three instances during the plea hearing, Armendariz agreed to remain law abiding as
a condition of concurrent sentencing.
Further, the record indicates that the district court informed Armendariz that a
violation of the condition could lead to consecutive sentencing when it stated on the record,
“[I]f Mr. Armendariz fails to remain law abiding, the State would then, if it so desired,

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argue that the sentences, either entirely or -or in part, should be sentenced consecutively . ”
Armendariz indicated that this statement was an accurate representation of his
understanding of the plea agreement. The record is clear that Armendariz agreed to remain
law abiding between his plea hearing and the sentencing hearing as a condition of
concurrent sentencing, that he knew and understood this condition, and that he was aware
that any violation of this condition could result in a consecutive sentence. Thus,
Armendariz’s plea includes both the written plea petitions and his oral agreement to remain
law abiding as a condition of concurrent sentencing.
Armendariz makes one additional argument regarding whether his plea was
voluntary. Specifically, he contends that the district court improperly participated in plea
negotiations by adding a law-abiding condition to the agreement.
A district court should not participate in the plea bargaining negotiation itself .
Wheeler v. State , 909 N.W.2d 558, 564 (Minn. 2018). This principle “is not solely a
prohibition on judicial plea offers, promises, or threats. It also prohibits unsolicited judicial
comments regarding the propriety of the parties’ competing settlement offers.” Id. at 560.
Judicial participation includes “generat[ing] and propos[ing] a plea deal not presented by
the parties.” Id. at 567. But “a judge does not participate in the plea bargaining negotiatio n
by merely inquiring into the status of the parties’ plea negotiations, sharing general
sentencing practices, or disclosing nonbinding plea and sentencing information at the joint
request of the parties.” Id. at 560.
Here, the district court did not participate in the plea bargaining negotiation because
it never generated or proposed a plea deal which was not already presented by the parties.

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Instead, the district court recited th e agreement that the attorneys had previously
summarized to him, asking Armendariz and the attorneys to confirm that he correctly
understood the agreement. There is no case law suggesting that the mere recitation of an
agreement presented by the parties c ould constitute unlawful participation in a plea
bargaining negotiation. Thus, the district court neither improperly participated in the plea
negotiations nor independently added a condition to the plea agreement.
Because Armendariz clearly and unequivoc ally agreed to remain law abiding as a
condition of concurrent sentencing, and because there is nothing in the record suggesting
that the district court improperly participated in plea negotiations, we hold that
Armendariz’s plea was voluntary.
B. Failure to remain law abiding
Armendariz argues that e ven if his plea agreement included a valid clause that
required him to remain law abiding prior to sentencing , the district court erred by find ing
that he failed to comply with this condition. The state argues that “the district court had
sufficient evidence to determine [Armendariz] did not remain law abiding as required by
the plea agreement.” The parties’ disagreement on this issue centers around which burden
of proof should be applied. Armendariz contends that a district court determines whether
a defendant violates a condition to remain law abiding in a plea agreement using a clear
and convincing evidence standard. The state argues that it must only prove that
Armendariz failed to remain law abiding by a preponderance of the evidence.
No Minnesota case law has clearly stated the burden of proof to be applied in this
situation. However, we need not resolve the parties’ burden-of-proof dispute because the

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record adequately supports the district court’s fa ctual finding that Armendariz failed to
remain law abiding even under the clear-and-convincing standard he proposes. The district
court reviewed the PSI report describing how probation’s investigation revealed that
Armendariz had violated the law after hi s plea. The PSI describes specific instances
between Armendariz’s plea hearing and sentencing where he threatened and assaulted law
enforcement officials and jail staff, in addition to causing approximately $500 in damages
to the Blue Earth County Jail. This evidence, if credited by a factfinder, establishes
Armendariz’s failure to remain law abiding.
The district court, as the factfinder in this case, assessed the evidence and
determined that Armendariz failed to remain law abiding. At the sentencing h earing,
neither Armendariz nor his defense counsel made any evidentiary objections to the district
court’s reliance on the statements contained in the PSI in its finding that Armendariz failed
to remain law abiding. And when the district court specificall y inquired of Armendariz
and his defense counsel as to whether either of them had anything to add to the record
regarding whether Armendariz had remained law abiding, neither Armendariz nor his
defense counsel disputed the facts as described by probation i n its PSI report regarding the
crimes.
A defendant who does not object to the admission of evidence waives the right to
appeal such admission, even if the evidence should not have been admitted. State v. Litzau,
650 N.W.2d 177, 189 (Minn. 2002). Therefore, regardless of the evidentiary standard for
finding a violation of the plea agreement, the state met its burden of proof because the
statements in the PSI admitted and credited by the district court established Armendariz’s

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failure to remain law abiding between the plea hearing and sentencing by clear and
convincing evidence. Because we conclude that the record supports the district court’s
finding that Armendariz breached the plea agreement by failing to remain law abiding, we
have no basis upon which t o permit Armendariz to withdraw his guilty plea.
Affirmed.