State of Minnesota,

1

STATE OF MINNESOTA

IN SUPREME COURT

A19-2007

Court of Appeals Thissen, J.

State of Minnesota,

Respondent,

vs. Filed: December 1, 2021
Office of Appellate Courts
Anthoney Micheal Fugalli,

Appellant.

________________________

Keith M. Ellison, Attorney General, Saint Paul, Minnesota; and

John L. Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Fairbault, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.
________________________

S Y L L A B U S
Individuals “sell” a prohibited amount of a mixture containing a controlled
substance when they offer to sell that amount of a controlled substance , even if less than
the amount offered is delivered to the buyer.
Affirmed.

2
O P I N I O N
THISSEN, Justice.
This case requires us to determine whether, under Minn. Stat. § 152.021, subd. 1(3)
(2020), individuals “sell” 10 or more grams of heroin when they offer to sell 10 or more
grams of the substance, but less than 10 grams are delivered to the buyer. 1 Appellant
Anthoney Fugalli pleaded guilty to first-degree sale of a controlled substance under Minn.
Stat. § 152.021, subd. 1(3). During his plea hearing, Fugalli admitted that he offered to
sell 13 grams of heroin, but he admitted that only 8.906 grams of heroin were delivered to
the buyer. The district court denied Fugalli’s presentence motion to withdraw his guilty
plea and sentenced him to 78 months ’ incarceration. On appeal, Fugalli argued that the
factual basis for his guilty plea was inaccurate because he never admitted that 10 or more
grams of heroin were delivered to the buyer. The court of appeals affirmed.
We conclude that under the plain language of section 152.021, subd ivision 1(3),
individuals “sell” 10 or more grams of heroin when they offer to sell 10 or more grams of
heroin, even if the in dividual deliver s, or ha s the capacity to only deliver, less than 10
grams of heroin to the buyer. We therefore affirm.

1 Minnesota Statutes §§ 152.021–.025 (2020) define first-degree through fifth-degree
controlled substance sale crimes. Here, Fugalli was charged with, and convicted of, first -
degree sale of a controlled substance under section 152.021, subdivision 1(3). We use the
facts before us—an offer to sell more than 10 grams of heroin—to illustrate our discussion
of the issue. But our holding—that a person sells a controlled substance when they offer
to sell a controlled substance —is not limited to the first -degree controlled substance sale
crime. It applies to first-degree through fifth-degree controlled substance sale crimes under
sections 152.021–.025.
3
FACTS
On November 15, 2018, Fugalli pleaded guilty to first -degree sale of one or more
mixtures of a total weight of 10 grams or more containing heroin on one or more occasions
within a 90-day period in violation of section 152.021, subdivision 1(3).2 During his plea
hearing, he admitted selling heroin to an informant on four occasions between May 31 and
June 19, 2018. On May 31, Fugalli offered to sell three grams of heroin in exchange for
$650.00. He used a runner to complete the sale . The Bureau of Crimina l Apprehension
(BCA) later tested the package and determined that it contained 2.161 grams of heroin. On
June 7, Fugalli offered to sell three grams of heroin for $510.00. He used the same runner
to complete the sale . The BCA later tested the package an d determined that it contained
two grams of heroin. On June 12, Fugalli offered to sell three grams of heroin for $510.00,
this time completing the sale himself. The BCA tested the package and determined that it
contained 2.074 grams of heroin. Finally, on June 19, Fugalli offered to sell four grams of
heroin for $750.00, again completing the sale himself. Later BCA testing showed that the
package contained 2.671 grams of heroin. In summary, Fugalli admitted at the plea hearing
that on four occasions within a 90-day time period, he offered to sell the informant an
aggregate amount of 13 grams of heroin and delivered 8.906 grams of heroin.
Before accepting Fugalli’s guilty plea, the district court noted that “the definition of
sale includes offer to sell,” but asked the parties whether any case law addressed the issue

2 The statute provides that a person commits a first -degree controlled substance sale
crime when the person sells “mixture s of a total weight of ten grams or more containing
heroin.” For ease of reading, we will refer in this opinion to “mixtures . . . containing
heroin” as “heroin.”
4
of the disparity between the offered weight and the actual weight of the heroin delivered.
When neither party pointed to existing precedent, the district court accepted Fugalli’ s
admissions as a sufficient factual basis for his guilty plea, stating that, “if all Mr. Fugalli
had done was offer to sell the 13 grams he would still be convicted of selling the 13
grams . . . though the actual amounts delivered were less.”
On January 7, 2019, Fugalli moved to withdraw his guilty . Fugalli argued that
section 152.021, subdivision 1(3), requires proof that 10 or more grams of heroin were
actually delivered. B ecause Fugalli’s admissions at the plea hearing established that he
delivered less than 10 grams of heroin , he asserted that the plea hearing record did not
establish that he committed a first -degree controlled substance sale crime under section
152.021, subd. 1(3), and, therefore, he must be allowed to withdraw his plea.
Following an evidentiary hearing on June 14, 2019, the district court denied
Fugalli’s motion to withdraw his guilty plea . The court noted that the factual basis of
Fugalli’s guilty plea was his admission that he offered to sell 13 grams of heroin . The
district court concluded that his admission was sufficient and accurate for the first -degree
controlled substance sale crime. On September 17, 2019, Fugalli was sentenced to 78
months in prison.
On appeal, Fugalli challenged the district court’s legal con clusion that his offer to
sell more than 10 grams of heroin while delivering less than 10 grams was sufficient for a
conviction under Minn. Stat. § 152.021, subd. 1(3). State v. Fugalli, No. A19-2007, 2020
WL 7330586, at *2 (Minn. App. Dec. 14, 2020). Fugalli argued that his guilty plea was
5
inaccurate, and thus invalid, because the amount of heroin he actually delivered was less
than the statutory threshold for a first-degree controlled substance sale crime. Id.
The court of appeals rejected Fugalli’s argument and affirmed his conviction. It
held that his admission to offering to sell 13 grams of heroin “meets the straightforward
statutory definition of the crime to which he pleaded guilty.” Id. at *2. The court stated,
“[T]o conclude that . . . section 152.021, subd ivision 1(3), authorizes a first -degree
controlled substance conviction only if a defendant actually delivers, rather than merely
offers to sell or deliver” would require “ignoring the defining statutory language.” Id.
We granted Fugalli’s petition for review.
ANALYSIS
This case comes to us from an order denying Fugalli’s motion to withdraw his guilty
plea to a first-degree controlled substance sale crime in violation of section 152.021,
subdivision 1(3). Fugalli moved to withdraw his guilty plea under Minn. R. Crim. P. 15.05,
subd. 1, which provides: “At any time the court must allow a defendant to withdraw a guilty
plea upon a timely motion and proof to the satisfaction of the court that withdrawal is
necessary to correct a manifest injustice.” A manifest injustice exists when a guilty plea is
not valid. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). To be constitutionally valid,
a guilty plea must be accurate, voluntary, and intelligent. Id.
The manifest injustice claimed here is that the guilty plea was inaccurate. Fugalli
asserts that section 152.021, subdivision 1(3), requires proof not only that the accused
offered to sell 10 or more grams of heroin , but also that the accused delivered (or at least
had access to ) 10 or more grams of heroin. In contrast, the State argues that
6
section 152.021, subdivision 1(3), provides that a person commits a first-degree controlled
substance sale crime the moment the person offers to sell 10 or more grams of heroin.
To resolve this dispute, we must determine the meaning of section 152.021,
subdivision 1(3). That is a question of statutory interpretation which we review de novo.
State v. Townsend , 941 N.W.2d 108, 110 (Minn. 2020). When interpreting statutes, our
objective is to “effectuate the intent of the legislature.” State v. Stay, 935 N.W.2d 428, 430
(Minn. 2019) (citation omitted) (internal quotation marks omitted) . The first step in
statutory interpretation is to determine whether the statute’s language is ambiguous. Id.
The language of a statute is unambiguous when there is only one reasonable way to read
the text. State v. Khalil, 956 N.W.2d 627, 634 (Minn. 2021).
The statutory language at issue here provides: “A person is guilty of controlled
substance crime in the first degree if: . . . (3) on one or more occasions within a 90 -day
period the person unlawfully sells one or more mixtures of a total weight of ten grams or
more containing heroin . . . .” Minn. Stat. § 152.021, subd. 1(3). The Legislature defines
“sell” as: “(1) to sell, give away, barter, deliver, exchange, distribute or dispose of to
another, or to manufacture; or (2) to offer or agree to perform an act listed in clause (1); or
(3) to possess with intent to perform an act listed in clause (1).” Minn. Stat. § 152.01, subd.
15a (2020) (emphasis added).
When the Legislature has defined a term, that meaning prevails. See U.S. Jaycees
v. McCl ure, 305 N.W.2d 764, 766 (Minn. 1981). “The legislature defines a term only
because it intends in some measure to depart from the ordinary sense of that term. Thus,
there is a presumption that we are not to substitute the literal, ordinary meaning . . . for the
7
definition the legislature has provided.” Id. Under a plain reading of the statutory
definition, to sell includes offering or agreeing to sell.
Returning to the first -degree controlled substance sale provision under
section 152.021, subdivision 1(3), we insert the Legislature’s definition of “sell” into the
statutory definition of the crime. Cf. State v. Traxler, 583 N.W.2d 556, 560 (Minn. 1998)
(concluding that substituting the phrase “possess with the intent to manufacture” for “sell”
in jury instructions “did not materially misstate the law”) . After replacing “sell” with the
statutory definition relevant here , Minn. Stat. § 152.01, subd. 15a(2), section 152.021,
subdivision 1(3), reads: “A person is guilty of controlled substance crime in the first degree
if: . . . on one or more occasions within a 90 -day period the person unlawfully offers or
agrees to sell one or more mixtures of a total weight of ten grams o r more containing
heroin.”
The language self-evidently and unambiguously tells us that individuals “sell” 10
or more grams of heroin when they offer to sell 10 or more grams of heroin. The statutory
language does not require anything more. No additional grammatical parsing or
lexicographic analysis is necessary to understand what the language plainly says when we
apply the Legislature’s definition . Accordingly, because Fugalli admitt ed to offering to
sell more than 10 grams of heroin, his guilty plea to first-degree sale of heroin, under Minn.
Stat. § 152.021, subd. 1(3), is accurate and valid.
Fugalli insists, however, that section 152.021, subdivision 1(3), requires the State
to prove that the person making the sale actually delivered more than 10 grams of heroin,
or at the very least, had both access and capacity to deliver 10 or more grams of heroin. To
8
support this reading and avoid the plain and common -sense meaning of the statutory
language, Fugalli makes two interrelated arguments.
First, he points to prior decisions where we have held that the State must establish
four distinct elements to prove the commission of a first-degree controlled substance sale
crime: (1) a sale, (2) the unlawfulness of the sale, (3) the weight of the controlled substance
sold, and (4) the identity of the controlled substance sold. 3 Second, Fugalli observes that
the object of the word “offer” in the statutory definition of “sell” is the act of selling. See
Minn. Stat. § 152.01, subd. 15a(2) (sale includes “ to offer or agree to perform an act ”
(emphasis added)). According to Fugalli, the se textual clues mean that the definition of
“sell” in section 152.01, subdivision 15a, which includes the concept of offering to sell, is
relevant only to establish that a sale occurred (the first element), leaving the weight and
identity elements to be independently proven by the State as they would be in any other
controlled substance sale case.
We disagree with Fugalli’s analysis. To begin with, Fugalli’s argument works too
hard and unduly strains the ordinary meaning of the language adopted by the Legislature.
Fugalli essentially asks us to read section 152.021, subdivision 1(3), as follows: “A person
is guilty of a controlled substance crime in the first degree if on one or more occasions

3 Fugalli relies on three primary cases identifying these elements : State v. Vail, 274
N.W.2d 127 (Minn. 1979) (identity); State v. Robinson , 517 N.W.2d 336 (Minn. 1994)
(weight); State v. Olhausen , 681 N.W.2d 21 (Minn. 2004) (identity and weight). These
cases, however, do not address the legal question presented in this case—whether, standing
alone, an offer to sell drugs completes the crime of selling drugs. See Staub v. Myrtle Lake
Resort, LLC , 964 N.W.2d 613, 628 –29 (Minn. 2021) (noting that descriptive factual
similarities between the case before us and past cases are not analytically relevant to
questions of law that are not addressed in the prior cases).
9
within a 90-day period the person unlawfully offers to sell one or more mixtures of a total
weight of 10 grams or more containing heroin and delivers or transfers, or has the capacity
to deliver or transfer , one or more mixtures of a total weight of 10 grams or more
containing heroin.” Fugalli’s interpretation runs afoul of the interpretive principle that
courts cannot add words that the Legislature did not include. See State v . Schwartz,
957 N.W.2d 414, 419 (Minn. 2021).
Moreover, the premise of Fugalli’s argument is incorrect. The State here did prove
all four elements: (1) Fugalli made a “sale”—here, the offer to sell ; (2) Fugalli concedes
that it was unlawful for him to sell heroin; (3) Fugalli offered to sell 10 or more grams of
a substance, meeting the weight element; and (4) Fugalli offered to sell “heroin,” meeting
the identity element.
Fugalli also argues that the legislative history of the definition of “sell” in section
152.01, subdivision 15a, compels a decision different from the one we reach today. He
points to a short and indecisive discussion between a single legislator and a single witness.
We do not need to resort to legislative history when a statute is unambiguous. See State v.
Kirby, 899 N.W.2d 485, 492 (Minn. 2017) (“[L]egislative history is relevant only if the
statute is ambiguous.”). Because the statutory meaning of “sell” is plain and unambiguous
for the reasons stated above, we decline to use legislative history to create ambiguity in an
otherwise unambiguous statute.
Fugalli further asserts that the language of section 152.021, subdivision 1(3), must
be construed to require an actual delivery because the First Amendment prohibits the
10
criminalization of mere words .4 We do not apply constitutional avoidance statutory
interpretation principles when, as here, we have found a statute to be unambiguous. See
State v. Irby, 848 N.W.2d 515, 521–22 (Minn. 2014).

4 In a series of cases, the court of appeals has discussed the distinct question of
whether, when a charge is based on an offer to sell, the State must provide some
corroborating evidence that the accused had the intent to follow through on the words of
the offer. The court of appeals has reached different answers on that legal question.
Compare State v. Lorsung, 658 N.W.2d 215, 219 (Minn. App. 2003) (ruling that evidence
of intent to fulfill an offer to sell drugs is not required), rev. denied (Minn. June 17, 2003),
and State v. Hebrink , No. C6 -02-1288, 2003 WL 21384828, at *3 (Minn. App. June 17,
2003) (ruling that Minn. Stat. § 152.021, subd. 1, is unambiguous and “contains no specific
intent requirement”), with State v. Bautista , No. C5 -97-1668, 1998 WL 422221, at *3
(Minn. App. July 28, 1998) (ruling that proof of intent to follow through on an offer to sell
drugs is required because to “make any sense,” the statute has to be read to include “at least
some minimum mens rea, some specific intent requirement”), rev. denied (Minn. Sept. 22,
1998). See also State v. Rosillo , No. C2-00-1610, 2001 WL 881279, at *2 (Minn. App.
July 31, 2001) (ruling that no intent to perform is required, only “some conduct consistent
with fulfilling [the] offer” (citation omitted) (internal quotation marks omitted)), aff’d, 651
N.W.2d 499 (Minn. 2002) (order).
In each of those cases, resolution of the question was unnecessary because the State
had evidence of corroborating acts. See Lorsung, 658 N.W.2d at 217 (affirming a second-
degree conviction for offering to sell methamphetamine when over the phone the defendant
agreed to sell two eight balls of methamphetamine for $500 and agreed on a meeting
location, but never followed through); Hebrink, 2003 WL 21384828, at *3 (affirming first-
degree and second -degree convictions for offering to sell cocaine when the defendant
exchanged cocaine for $250 in one sale, then accepted $600 for a second sale and never
returned or delivered on that sale); Rosillo, 2001 WL 881279, at *2 (affirming first-degree
conviction for offering to sell cocaine when the defendant accepted $1,200 and arranged
to meet at a later time to deliver cocaine but never showed up or delivered any drugs);
Bautista, 1998 WL 422221, at *1 (affirming first -degree conviction for sale of cocaine
when defendant made phone calls to arrange a deal for six ounces of cocaine and accepted
$3,600 in payment but never delivered any cocaine).
We neither reach nor express an opinion on the issue of intent discussed in the cases
cited in this footnote because Fugalli did not raise this issue on appeal. Moreover, during
the plea hearing, he admitted evidence of corroborating acts: he in fact delivered heroin to
the confidential informant.
11
Fugalli finally argues that if a person sells more than 10 grams of heroin when they
merely offer to sell more than 10 grams of heroin and nothing more is required, a different
statute—the simulated controlled substances statute, Minn. Stat. § 152.097, subd. 1
(2020),5—is rendered irrelevant because the conduct criminalized by section 152.097,
subdivision 1, is wholly subsumed by the controlled substance sale crime provisions in
chapter 152. See Minn. Stat. §§ 152.021–.025 (defining first-degree through fifth-degree
controlled substance sale crimes). Fugalli’s argument asks us to apply the related-statutes
canon (also known as in pari materia ). That canon “allows two statutes with common
purposes and subject matter to be construed together” to determine statutory meaning.
State v. Prigge, 907 N.W.2d 635, 639 (Minn. 2018) (citation omitted) (internal quotation
marks omitted). But the canon applies only “after a determination of ambiguity.” Id. at
639–40. Because we conclude that the language of section 152.021, subdivision 1(3), is
unambiguous, the related-statutes canon is inapplicable.
The pre-ambiguity whole statute canon likewise does not help Fugalli. That canon
applies when two statutes were enacted at the same time and address the same subject. See
Prigge, 907 N.W.2d at 6 40 (stating that the whole statute canon did not apply to two
statutes enacted at different times and which do not address the same subject and apply to
different circumstances); Sheridan v. Comm ’r of Revenue, 963 N.W.2d 712, 718 (Minn.
2021) (stating that whole statute canon did not apply because the statutes being compared

5 Minnesota Statutes § 152.097, subd. 1, provides: “It is unlawful for any person
knowingly to manufacture, sell, transfer or deliver or attempt to sell, transfer or deliver a
noncontrolled substance upon: (1) the express representation that the noncontrolled
substance is a narcotic or nonnarcotic controlled substance . . . .”
12
were enacted at different times). In his brief, Fugalli acknowledges that the simulated
controlled substances crime provision serves a different purpose than the controlled
substance sale crime provisions. See generally Barrow v. State , 862 N.W.2d 686, 691
(Minn. 2015) (explaining that the statutory prohibition on sales (including offers) of
controlled substances serves to disincentivize the drug trade); State v. Olhausen ,
681 N.W.2d 21, 27–28 (Minn. 2004) (noting that the simulated controlled substances law
addresses the common problem of substituti ng noncontrolled substances for controlled
substances).
And the statutes were enacted at different times. It has been a crime to “sell, give
away, barter, deliver, exchange or distribute” a controlled substance since at least 1971.
Act of June 7, 1971, ch. 937, § 13, 1971 Minn. Laws 1923, 1931 –32; see Minn. Stat.
§ 152.15 (1972). Prohibition on the sale of certain drugs dates back many decades longer.
See, e.g., Act of March 31, 1939, ch. 102, § 1, 1939 Minn. Laws 162, 162–63. In 1982, in
a stand-alone bill, the Legislature enacted the simulated controlled substances provision,
section 152.097. Act of March 22, 1982, ch. 599, 1982 Minn. Laws 1434. Later, in 1989,
the Legislature reformatted the Controlled Substances Act, and established different
degrees of controlled substance sale crimes. Act of May 30, 1989, ch. 290, art. 3, §§ 8, 37,
1989 Minn. Laws 1580, 1596–97 (adopting first-degree controlled substance sale crime) ,
1612 (repealing Minn. Stat. § 152.15 (1988)). 6 In the same bill, the Legislature added a

6 In the 1989 law, the Legislature also added a penalty provision to the simulated
controlled substances act, setting a 3-year maximum penalty, but it did not change the
substance of the law. Act of May 30, 1989, ch. 290, art. 3, § 18, 1989 Minn. Laws 1580,
1603. That change does not affect our analysis of legislative intent or applicability of the
13
definition of “sell ,” which included “offer” to sell. Id. at 1596. Consequently, the pre -
ambiguity whole statute canon is inapplicable.
In sum, Fugalli’s efforts to avoid the plain meaning of the statutory language fail.
His guilty plea was accurate because he admitted to offering to sell more than 10 grams of
heroin, even though he delivered less than that amount.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.

whole statute canon. Notably, Fugalli did not deliver a noncontrolled substance to the
informant—he delivered heroin. Fugalli does not contend that he could have been charged
or convicted under section 152.097.