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This opinion is nonprecedential except as provided by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
A20-0006

State of Minnesota,
Respondent,

vs.

Alex Bernard Cuffy,
Appellant.

Filed January 4, 2021
Affirmed
Bryan, Judge

Dakota County District Court
File Nos. 19HA-CR-18-2810, 19HA-CR-18-2809

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

James C. Backstrom, Dakota County Attorney, Anna Light, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Florey, Judge; and Bryan, Judge.
NONPRECIDENTIAL OPINION
BRYAN, Judge
In this direct appeal , appellant challenges the accuracy of his guilty pleas and the
district court’s decision to deny his motion for a sentencing departure. Because appellant’s
admissions provide sufficient evidence to support the guilty pleas, we conclude that both

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pleas were accurate and valid. In addition, we conclude that the district court did not abuse
its discretion when it denied appellant’s motion to depart.
FACTS
In October 2018, respondent State of Minnesota charged appellant Alex Bernard
Cuffy with two counts of possession of theft tools under Minnesota Statutes section 609.59
(2018), for two separate offenses. The first offense occurred on September 1, 201 8, at a
retail clothing store in Eagan, Minnesota. According to the complaint, an employee saw
Cuffy enter a dressing room carrying items of clothing and a bag from another retail store.
The employee heard “rustling” and noticed that when Cuffy left the dressing room he had
fewer items than when he entered. Officers stopped and searched Cuffy and found a “large
magnet” that the officer s recognized could remove securi ty tags. Cuffy told the officers
that he brought the magnet with him to the store “to see if it worked.”
The second offense occurred on October 28, 2018, at a Walmart in West St. Paul.
According to the complaint, store employees saw Cuffy use a “key,” kn own as an “alpha
key,” to remove security packaging from electronic items. An officer stopped and searched
Cuffy and found the “alpha key” and over $500 worth of stolen electr onics in his jacket
pocket.
Cuffy waived his right to trial and entered guilty p leas for both offenses. At the
joint plea hearing, Cuffy confirmed that he understood the plea petitions and the rights that
he was giving up by pleading guilty. He also agreed that he had discussed the decision
with his attorney. Cuffy confirmed his desire to enter a guilty plea in both cases, and his
attorney asked the following questions to establish a factual basis:

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Q: So I’ll start with court file ending in 2809[.] . . . Mr. Cuffy,
back on October 28, 2018, were you at the Walmart in West
St. Paul, Dakota County, State of Minnesota?
CUFFY: Yeah.
Q: And you went into the store and you had I guess what’s
termed as an “alpha” key that would remove kind of the
security packaging on some hard drives; is that correct?
CUFFY: Yep.
Q: And you had used that key to remove the packaging, and
then you attempted to leave the store with those hard drives; is
that correct?
CUFFY: Yep.
Q: And you’d agree that that alpha key would meet the
definition of possessing a burglary tool; is that correct?
CUFFY: Yep.
Q: And going into there, you had the intent to take those hard
drives, and no one gave you permission from the store to take
those; is that correct?
CUFFY: Yep.

. . . .

Q: So in file ending in 2810, I’m going to take your attention
back to September 1st, 2018. Did you go to the Tommy
Hilfiger store —I believe that’s at the Eagan outlet mall —in
Dakota County, Minnesota?
CUFFY: Yes.
Q: And you had on you one of those kind of electronic magnets
that would remove the magnets that are on clothing ; is that
correct?
CUFFY: Yep.
Q: And you went into that store, and you had selected some
shirts that were not yours. And in fact, you didn’t have to use
the magnet but you went into the store intending to use it if you
had to; is that correct?
CUFFY: Yep.
Q: And you took t hose shirts with the intent to take them ; is
that correct?
CUFFY: Yep.
Q: And that’s —and that magnet that you had would be
considered a burglary tool; is that correct?
CUFFY: Yep.

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Prior to sentencing, Cuffy moved the district court for a downward sentencing
departure. Cuffy argued that his offense was less serious than the typical felony offense
for possession of burglary or theft tools because his offense occurred during the day, and
the value of the goods at issue for one offense exceeded the misdemeanor theft threshold
by only $15. Cuffy requested that the district court impose a gross misdemeanor sentence
and stay execution of the prison term imposed. The state opposed a departure noting that
Cuffy was not charged with theft, so the statutory dollar thresholds had limited
applicability. In addition, the state emphasized that Cuffy did not merely possess the theft
tools, but also used the tools and attempted to leave the stores with the stolen items. The
state also argued that Cuffy used two different types of tools in each case and that the
“alpha key” can be used on multiple lock types used by electronics stores. The state
requested that the district court stay imposition of a felony sentence in both cases and place
Cuffy on probation.
The district court denied Cuffy’s request for a gross misdemeanor sentence,
explaining that the offenses were “premeditated[,] . . . not like a spontaneous theft,” and
that Cuffy “had every opp ortunity to back off” but did not do so . The district court
concluded, “I can’t find any facts and circumstances that are less onerous unless I make it
up, which I can’t.” The district court accepted the felony level convictions, but stayed
imposition of a sentence, and placed Cuffy on probation for three years. This sentence
would result in the conversion of both convictions to standard misdemeanors upon
successful completion of probation. Cuffy did not move the district court to withdraw his
guilty pleas, and instead filed this direct appeal.

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DECISION
I. Accuracy of Cuffy’s Guilty Pleas

Cuffy argues that his guilty pleas must be withdrawn because the pleas are
inaccurate and, therefore, invalid. Because there is a sufficient factual basis to support his
guilty pleas, we disagree.
A defendant does not have an absolute right to withdraw a guilty plea.
State v. Mikulak, 903 N.W.2d 600, 603 (Minn. 2017). But a court may permit a plea
withdrawal after imposition of a sentence wh en a guilty plea is not constitutionally 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.
Cuffy challenges only the accuracy of his pleas. “The accuracy requirement protects
a defendant from pleading guilty to a more serious offense than that for which he could be
convicted if he insisted on his right to trial. To be accurate, a plea must be established on
a proper factual basis.” Id. (citations omitted); see also Lussier v. State, 821 N.W.2d 581,
588 (Minn. 2012). “The factual basis must establish sufficient facts on the record to
support a conclusion that [the] defendant’s conduct falls wi thin the charge to which he
desires to plead guilty.” Munger v. State, 749 N.W.2d 335, 3 38 (Minn. 2008) (quotation
omitted). A factual basis must be established for all elements of the offense to which the
defendant is pleading guilty. State v. Jones , 921 N.W.2d 774, 779 (Minn. App. 2018),
review denied (Minn. Feb. 27, 2019). “A defendant bears the burden of showing his plea
was invalid. Assessing the validity of a plea presents a question of law that we review de
novo.” Raleigh, 778 N.W.2d at 94 (citations omitted).

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Cuffy argues that his pleas are inaccurate because , although they included
admissions regarding each and every essential element of the offense, they lacked
“sufficient detail” to permit the district court to determine guilt.1 Cuffy relies on two cases
for this argument: State v. Hoaglund , 240 N.W.2d 4 (Minn. 1976), and Shorter v. State ,
511 N.W.2d 743 (Minn. 1994). We are not persuaded for two reasons. First, neither of
the two cases relied on by Cuffy supports the proposition that accuracy requires admission
of any details beyond the essential elements of the offense. To establish guilt, the
kidnapping statute at issue i n Hoaglund required proof that the accused person acted to
fulfill one of the four specified statutory purposes. 240 N.W.2d at 4. T he supreme court
reversed the conviction because the factual basis did not address this element of the offense.
Id. at 4-6 (stating that the defendant “was not asked, nor did he testify to, his purpose in
taking the girl, even though a critical issue of his guilt under the statute depended on
whether he confined her for one of the specified unlawful purposes”). Here, Cuffy does
not dispute that he admitted each and every essential element of the offenses when he
pleaded guilty. Therefore, Hoaglund does not apply.
The decision in Shorter also does not stand for the proposition cited by Cuffy.
Contrary to Cuffy’s argument, the supreme court in Shorter did not require admission of

1 Cuffy also seems to argue that the pleas lack accuracy because his attorney asked leading
questions. Using leading questions is discouraged, but not fatal to the validity of the plea.
Nelson v. State, 880 N.W.2d 852, 860 (Minn. 2016) (“[W]e have never held that the use of
leading questions automatically invalidates a guilty plea, and we decline to do so in this
case.”). Instead we consider whether the record contains sufficient evidence to support the
conviction, even when that evidence consists of answers to leading questions. Id. at 859;
Raleigh, 778 N.W.2d at 95.

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details beyond the elements of the offense. 511 N.W.2d at 746 -47. Instead, the supreme
court reversed the district court’s denial of Shorter’s motion to withdraw his guilty plea
because of several “highly unusual facts” of the case , including the fact th at “the
Minneapolis police department reopened its investigation and was prepared to testify
before the trial court that the original police investigation into Shorter’s case was
incomplete.” Id. at 746. In addition, Shorter claimed that the state failed to disclose
required information, but based on the deficient record, the supreme court could not
determine whether any discovery violation occurred. Id. The supreme court rejected the
validity of Shorter’s guilty plea because the substandard police investigation and possible
discovery violation rendered the plea involuntary and unintelligent. See id. at 746-47 (“It
is clear, however, that the effect of the substandard police investigation on appellant was
compounded by defense counsel’s inability to locate his corroborating witnesses, whether
or not that inability was due to a discovery violation by the prosecutor. ”). While the
supreme court also criticized the use of leading questions to establish the factual basis in
support of Shorter’s guilty plea, id. at 747, Shorter does not stand for the proposition that
accuracy requires the accused to admit any details beyond the essential elements of the
offense. Given the absence of legal support for this proposition, we decline to adopt a new
standard of accuracy based on the facts and record before us.
Second, we conclude that under the existing standard for accuracy, the factual basis
in this case was sufficient to establish Cuffy’s guilt in both cases. Cuffy admitted all
elements of each offense at the plea hearings. See Minn. Stat. § 609.59 (providing that to
be guilty of possessing theft tools , a person must possess “any device, explosive, or other

8
instrumentality with intent to use or permit the use of the same to commit burglary or
theft”). Regarding the theft of electronics from Walmart, Cuffy admitted he possessed an
“alpha key,” he used the “alpha key” to remove security packaging containing hard drives,
and he did so because he intended to take the hard drives from the store without the
permission of the store. Regarding the theft of clothes , Cuffy admitted he possesse d an
electronic magnet used to remove security tags from clothing, and he intended to use the
device to take clothes that did not belong to him. These admissions provide a sufficient
factual basis to conclude that the admitted conduct “falls within the charge to which he
desire[d] to plead guilty.” See Munger, 749 N.W.2d at 33 8. Because we conclude that
Cuffy’s pleas are accurate, the pleas are valid and Cuffy is not entit led to withdraw his
guilty pleas.
II. Downward Durational Departure

Cuffy also argues that the district court abused its discretion when it denied his
motion for a downward departure. Because the district court carefully evaluated the record
before exercising its discretion , the district court did not abuse its discretion when it
sentenced Cuffy to the presumptive sentence.
The Minnesota Sentencing Guidelines establish presumptive sentences for felony
offenses. Minn. Stat. § 244.09, subd. 5 (2018). A district court “may” depart from the
presumptively appropriate guidelines sentence only if “identifiable, substantial, and
compelling circumstances” warrant doing so. State v. Solberg , 882 N.W. 2d 618, 623
(Minn. 2016) (quoting Minn. Sent. Guide lines 2.D.1). “[D]epartures from the guidelines
are discouraged and are intended to apply to a small number of cases.” Id. The sentencing

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guidelines provide “a nonexclusive list of factors that may be used as reasons for
departure.” State v. Hicks , 864 N.W.2d 153, 157 (Minn. 2015) (quoting Minn. Sent.
Guidelines 2.D.3.) . A downward durational depar ture is justified when an offender’ s
conduct is less serious than the typical conduct involved in a given offense. See State v.
Rund, 896 N.W.2d 527, 532 (Minn. 2017).
Based on Cuffy’s lack of prior convictions and the severity levels for the offenses,
application of the sentencing guidelines results in a presumptive stayed sentence. The
district court accepted this presumptive disposition and stayed imposit ion of sentence .
When the district court follows the presumptive guidelines disposition, we generally will
not interfere “as long as the record shows the sentencing court carefully evaluated all the
testimony and information presented before making a determination.” State v. Pegel, 795
N.W.2d 251, 255 (Minn. App. 2011) (quotation omitted). In f act, the supreme court
predicted that it would be a “rare case” that would warrant reversal of a district court’s
refusal to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). We “afford the [district]
court great discretion in the imposition of sentences and reverse sentencing decisions only
for an abuse of that discretion.” State v. Soto , 855 N.W.2d 303, 307 -08 (Minn. 2014)
(quotation omitted).
Cuffy argues that the district court abused its discretion when it denied his request
to impose a gross m isdemeanor sentence. On appeal, Cuffy contends that his offense is
less serious than the typical offense because his offenses occurred during the day, did not
involve a weapon, and the value of the goods at issue for one offense exceeded the
misdemeanor theft threshold by only $15. We disagree. As the dist rict court correctly

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noted, the relevant offense here is possession of theft tools, not theft. To depart, the district
court has to compare the conduct in this case to the typical conduct in other possession-of-
theft-tools offenses, not the typical misdemeanor or gross misdemeanor theft crime . The
district court concluded that Cuffy’s possession of an “alpha key” and an electronic magnet
indicated that his conduct was premeditated, not spontaneous or impulsive. The district
court also determined that Cuffy had “every opportunity” to stop the offense, but chose not
to do so. Moreover, in this case, Cuffy possessed two different types of tools and actually
used the “alpha key” to remove the packaging for the hard drives. After reviewing the facts
in the record and considering Cuffy’s arguments, t he district court explained that it could
not find “any facts and circumstances that are less onerous” than the typical facts
constituting possession of theft tools. As a result, the district court determined that it could
not depart from the presumptive guidelines sentence and impose a gross misdemeanor
sentence.
Based on this record, Cuffy has not shown that the district court failed to “carefully
evaluate[] all the testimony and information presented before making a determination .”
See Pegel, 795 N.W.2d at 255. Accordingly, we conclude that this is not one of those rare
instances in which the district court abused its sentencing discretion when it stayed
imposition of sentence and placed Cuffy on probation.
Affirmed.