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This opinion will be unpublished and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
A19-1920

State of Minnesota,
Respondent,

vs.

Dustin Alexander Depiano,
Appellant.

Filed August 10, 2020
Affirmed
Jesson, Judge

Clay County District Court
File No. 14-CR-19-742

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

Brian J. Melton, Clay County Attorney, Pamela L. Foss, Chief Assistant County Attorney,
Moorhead, Minnesota (for respondent)

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

Considered and decided by Jesson, Presiding Judge; Wo rke, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
After stealing a vehicle and leading police on a high-speed chase, appellant Dustin
Alexander Depiano pleaded guilty to second-degree assault with a dangerous weapon and

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fleeing a police officer. Because we conclude that Depiano’s guilty plea was accurate, we
affirm.
FACTS
In February 2019, just after midnight, a man stole a vehicle from a home in West
Fargo, North Dakota.1 The man, later identified as a ppellant Dustin Alexander Depiano,
evaded police in Cass County and Moorhead. A few hours later, police in Clay County
located Depiano, who was driving the stolen vehicle. A police chase ensued, with speeds
exceeding 100 miles per hour.
Eventually, an officer observed Depiano pu ll into the parking lo t of an apartment
complex. The officer approached Depiano in his squad car. Bu t Depiano accelerated
toward the officer in reverse, at a high rate of speed. The officer swerved to avoid a
collision. Depiano stopped, drove toward the officer, and hit his rear passenger door.
After striking the police car, Depiano con tinued driving. He encountered another
police vehicle, containing two of ficers, driving in the opposite direction. Depiano drove
straight toward the police vehicle, causing th e officer to brake in an attempt to avoid a
head-on collision. Then, Depiano turned the st olen vehicle in front of the police vehicle,
causing a collision. The impact caused the airbags to deploy in the police vehicle, and one
officer was taken to the hospital to be evaluated for injuries. Depiano and the stolen vehicle
became stuck in a snow bank.

1 This description of what occurred is based on the facts alleged in the amended complaint.

3
Police arrested Depiano. Based on his actions, the state charged him with seven
criminal offenses.2 In lieu of going to trial, Depia no agreed to plead guilty, pursuant to a
plea agreement, to one count of second-degr ee assault involving the collision with the
officer in the apartment comp lex parking lot and the felony charge of fleeing a police
officer.3
At the plea hearing, Depiano expressed that he understood the rights he was waiving
by pleading guilty and that he had enough time to consult with his attorney about the plea.
To form the factual basis of his plea, Depiano testified that he drove to Clay County from
Fargo. He acknowledged that law enforcem ent wanted him to stop because he was
speeding and driving a stolen vehicle. Depi ano explained that he saw police lights and
heard the sirens but continued driving anyway. The state then asked Depiano “[w]hat did
you do that makes you guilty of a second-degree assault agains t [the officer]?” Depiano
responded that he “[p]ut fear in his life” by “not stopping.” Seeking to clarify Depiano’s
actions, the state again asked him what he did to make him guilty of second-degree assault,
and Depiano explained that he “wouldn’t stop in the chase.”
The state then expressed c oncern that Depiano’s testim ony did not establish an
adequate factual basis for his guilty plea to second-degree assault. To remedy this

2 The state charged Depiano with three counts of second-degree assault with a dangerous
weapon (one count for each officer involved), one count of receiving stolen property, one
felony count of fleeing a police officer, and two counts of first-degree damage to property
based on the damage to the police vehicles.
3 In exchange for his plea, the state agreed to dismiss the rest of the charges and recommend
a bottom-of-the-box sentence for second-degree assault, to be served concurrently with his
sentence for fleeing a police officer. Depiano also agreed to pay restitution.

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apprehension, Depiano’s counsel asked him a dditional questions. Depiano agreed that
when the officer’s vehicle was behind him, he put the stolen vehicle in reverse, causing the
officer to veer to avoid a collision. His counsel then asked him “when you say you put
‘fear’ of immediate bodily harm or death in him, is that what you did?” And Depiano
answered “[y]es.” The state then asked Depiano if he intentionally attempted to strike the
officer’s vehicle in order to “get away,” and Depiano testified that he did.
In accordance with the plea agreement, the district court sentenced Depiano to
52 months in prison for second- degree assault and 22 months for fleeing a police officer,
to be served concurrently. Depiano appeals.
D E C I S I O N
Depiano argues that he is entitled to wit hdraw his guilty plea to second-degree
assault because it was inaccurate. Specifically , Depiano contends th at his plea did not
establish that he harmed the o fficer or specifically intended to cause the officer to fear
harm. We review the validity of a guilty plea de novo. State v. Raleigh, 778 N.W.2d 90,
94 (Minn. 2010).
After entering a guilty plea, a defendant does not have an absolute right to withdraw
it. Id. at 93. A court must allow a defendant to withdraw a guilty plea after sentencing
only if “withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05,
subd. 1. And a “manifest injustice” oc curs when a guilty plea is not valid. Raleigh,
778 N.W.2d at 94. To be valid, a guilty plea must be “accurate, voluntary, and intelligent.”
Id. Depiano bears the burden of demonstrating facts that establish that his plea was invalid.
State v. Mikulak, 903 N.W.2d 600, 603 (Minn. 2017).

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Here, Depiano contends that his guilty plea to second-degree assault was not
accurate. “The accuracy requirement protects the defendant from pl eading guilty to a
charge more serious than he could have been convicted of at trial.” Id. To be accurate, the
record must contain a factual basis “showi ng that the defendant’s conduct meets all
elements of the charge to wh ich he is pleading guilty.” Barnslater v. State ,
805 N.W.2d 910, 914 (Minn. App. 2011). Typically, a district court satisfies the accuracy
requirement “by asking the defe ndant to express in his ow n words what happened.”
Lussier v. State, 821 N.W.2d 581, 589 (Minn. 2012) (quotation omitted). But we may also
evaluate the entire record, be yond the defendant’s testimony, when assessing the factual
basis for a guilty plea. See State v. Trott, 338 N.W.2d 248, 251-52 (Minn. 1983).
To determine whether Depiano’s guilty pl ea was supported by a sufficient factual
basis, we first examine the elements of sec ond-degree assault with a dangerous weapon.
That offense requires that a person “assa ult[] another with a dangerous weapon.” 4 Minn.
Stat. § 609.222, subd. 1 (2018). And the stat ute defines “assault” as either “an act done
with intent to cause fear in another of immediate bodily harm or death” or “the intentional
infliction of or attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02,
subd. 10(1)-(2) (2018). Ba sed on this definition, there are two forms of
assault: assault-harm and assault-fear. See State v. Fleck , 810 N.W.2d 303, 308
(Minn. 2012). The supreme court has determin ed that assault-harm is a general intent
crime, while assault-fear requires specific intent. Id. at 309.

4 Depiano does not challenge the dangerous-weapon element of his plea.

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With these elements in mind, we evalua te the factual basis of Depiano’s plea.
During the plea hearing, Depiano testified that he ignored police lights and sirens signaling
he should stop, and con tinued driving. Depiano agreed with his couns el’s statement that
he put the stolen vehicle in reverse while the officer’s vehicle was behind him, causing the
officer to veer to avoid a collision. And Depiano acknowledged that he intentionally
attempted to strike the officer’s vehicle to “get away.” Depiano explained that he
“wouldn’t stop the chase” and that he “[p]ut fear in [the officer’s] life” by “not stopping.”
Finally, Depiano responded affirmatively when his counsel questioned him “when you say
you put ‘fear’ of immediate bodily harm or d eath in him, is that what you did?” These
admissions created a sufficient factual basis for Depiano’s guilty plea.
Still, Depiano argues that his guilty plea did not establish that he acted with specific
intent, a necessary element of assault-fear. Rather, Depiano urges this court to conclude
that his intent was simply to “get away” instead of causing the officer to fear imminent
harm.
Because assault-fear is a specific intent crime, a person must engage “in an act with
the intent to cause fear in another of immediate bodily harm or death.” Fleck, 810 N.W.2d
at 308 (quotation omitted). And “[i]n an assault -fear crime, the intent of the [defendant],
as contrasted with the effect upon the vic tim, becomes the focal point for inquiry.” Id.
(quotation omitted). At the plea hearing, Depiano did not explicitly testify that he drove
toward or struck the officer’s vehicle with the intent to cause him to fear immediate bodily
harm or death.

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But intent is generally “proved by infe rences drawn from a person’s words or
actions in light of all the surrounding circumstances.” Nelson v. State, 880 N.W.2d 852,
860 (Minn. 2016) (quo tation omitted). And here, Depia no’s intent can be inferred from
the record. Depiano admitted that, after ignoring police signals to stop, he put his vehicle
in reverse and drove toward the police ca r behind him. He testified that he intentionally
attempted to strike the officer’s vehicle to get away and that he “put fear in his life.” These
statements support the inference that De piano acted with the required intent. See
State v. Gillam, 629 N.W.2d 440, 454 (Minn. 2001) (permitting a jury to “infer that a
person intends the natural and probable consequences of his actions” (quotation omitted));
see also Nelson, 880 N.W.2d at 861 (stating that “before a plea of guilty can be accepted,
the trial judge must make certain that facts exist from which the defendant’s guilt of the
crime charged can be reasonably inferred” (emphasis added) (quotation omitted)). Even
if Depiano did intend to “get away,” the record supports the inference that he also intended
to cause the officer to fear imminent harm or death while doing so. Because Depiano’s
plea was accurate, he is not entitled to withdraw it.5
Affirmed.

5 Because we conclude that a sufficient factual basis supports Depiano’s guilty plea to the
offense of assault-fear, we do not address his arguments related to other types of assault.