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This opinion is nonprecedential except as provided by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
A20-0073

State of Minnesota,
Respondent,

vs.

Gabriel Edward Towne,
Appellant.

Filed February 8, 2021
Reversed and remanded
Segal, Chief Judge

Hennepin County District Court
File No. 27-CR-18-10933

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

Michael O. Freeman, Hennepin County Attorney, Adam E. Petras, Assistant County
Attorney, Brennan Lee (certified student attorney), Minneapolis, Minnesota (for
respondent)

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

Considered and decided by Florey, Presiding Judge; Segal, Chief Judge; and Ross,
Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant brings this appeal claiming a breach of his plea agreement and
challenging his sentence. Specifically, appellant clai ms that (1) the state failed to prove

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that he violated a condition of the plea agreement; (2) the state breached the agreement by
requesting a sentence in excess of the agreed-upon range; and (3) the district court erred
by imposing a sentence in excess of the agreed -upon range without allowing him to
withdraw his plea. Because the plea agreement is ambiguous, we conclude that Towne’s
plea was “unintelligent.” We therefore reverse and remand.
FACTS
In April 2018, appellant Gabriel Edward Towne was charged with one count of first-
degree aggravated robbery . Towne allegedly committe d the crime with a codefendant
whom he had known for ten years. The codefendant was also charged, but was prosecuted
separately.
Prior to the trial of the codefendant, Towne entered into a plea agreement that was
accepted by the district court. The terms, as stated on the plea-agreement form, provide in
relevant part: “plead to Agg[ravated] Rob[bery] 1[st degree]; departure (either durational
or dispositional); other terms as set by court; defendant to provide truthful testimony re:
co-defendant[.]”
At the hearing on the plea agreement, the state described the agreement as follows:
PROSECUTOR: Mr. Towne will plead guilty to the sole count
in the complaint. The [inaudible] of this agreement would be
that in exchange for truthful testimony against co -
defendant . . . , the State would give Mr. Towne consideration
at sentencing from a bottom range of a dispositional departure
to 365 days in local jail to a durational departure. It is a
sentence—it is a range right now, and that is based on the
truthful testimony in the case against [codefendant ]. . . .
[S]entencing would be held after resolution of [codefendant’s]
case.

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THE COURT: Okay. So hold on, the agreement is that the
county attorney will give a sentencing in the range of what?
PROSECUTOR: A dispositional departure, 365 days in jail, to
a durational departure.
THE COURT: Okay. To a durational departure unknown at
this time?
PROSECUTOR: Correct.
THE COURT: Okay. Let me just look at something here.
Presumptive is a 58-month commitment.
PROSECUTOR: So the—I mean, yes.
THE COURT: And the box being 50 to 69.

While questioning Towne about his understanding of the plea agreement, Towne’s counsel
asked, “[T]his offer is a little complicated because the State is agreeing to a departure, but
we don’t know what kind of departure you’re going to get yet, do we?” To which Towne
replied, “No.” Towne’s counsel further asked , “And you are going to cooperate with the
presentence investigation. And you’re also going to—you’ve been served with a subpoena,
and you’re going to provide truthful testimony [at the trial of the codefendant] pursuant to
that subpoena; is that right?” To which Towne responded, “Yes.”
Additional discussion related to the plea agreement occurred at a later hearing in the
case. The hearing concerned whether Towne had violate d the terms of his conditional
release because he had been charged with another crime. At that hearing, the state
expressed concern that Towne might “pick[] up more offenses that are impeachable” before
codefendant’s trial and described the plea agreement as requiring “truthful” and “credible
testimony.” The state went on to describe the agreement as “an open sentence” that can be
“up to a dispositional departure.” Immediately after noting the range of the open sentence
and Towne’s potential additional charge that prompted the violation hearing, the court said
to Towne, “[Y]ou’re risking going to prison for a really long time.”

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Towne testified at the codefendant’s trial, but the state claimed at the sentencing
hearing that Towne did not testify truthful ly and th ereby breached the terms of the plea
agreement. Specifically, the state pointed to Towne’s failure to identify the codefendant
at the trial . The state asserted that the plea agreement was “off ” and asked the court to
impose a guidelines sentence. Towne’s counsel countered that Towne had not seen the
codefendant in over a year and that the codefendant had grown a beard and his hair was
longer such that Towne did not recognize the codefendant at the trial. Towne’s counsel
further argued that the state failed to properly prepare Towne for the trial and that the
prosecutor “pulled the plug pretty early” in ending Towne’s testimony.
The district court judge at sentencing was the same judge who presided over the
codefendant’s trial. After hearing arguments on the matter, the judge stated:
Well, Mr. Towne, I was here for the trial [of the codefendant],
and I think you knew you were subpoenaed to testify in the trial
. . . . And I witnessed your performance on the witness stand.
And quite honestly, Mr. Towne, . . . I’m not buying it. Okay.
The deal you made with the State is no longer in effect. You
entered a guilty plea; I accepted it. And today, Mr. Towne,
you’re going to go to prison on this one.

The district court sentenced Towne to the presumptive guidelines sentence of 58 months.
The sentence was immediately executed and Towne was taken into custody. Towne now
appeals.
DECISION
Towne claims that sentencing him in excess of the range set out i n the plea
agreement violated his rights. He asserts that the state failed to prove that he testified
untruthfully at the codefendant’s trial and that it is the state, not Towne, that is in breach

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of the agreement because the state sought a sentence in excess of the range established by
its terms. Towne asserts that, at a minimum, he should have been offered the opportunity
to withdraw his plea.
We review questions of fact related to a plea agreement for clear error. State v.
Robledo-Kinney, 615 N.W.2d 25, 32 (Minn. 2000). The validity of a plea agreement
involves a question of law that we review de novo. Nelson v. State, 880 N.W.2d 852, 858
(Minn. 2016).
The Minnesota Rules of Criminal Procedure allow a defendant to withdraw a guilty
plea if “withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05,
subd. 1. A m anifest injustice exists when a guilty plea is invalid. State v. Theis, 742
N.W.2d 643, 646 (Minn. 2007). A plea is invalid if it is not accu rate, voluntary, and
intelligent. State v. Byron, 683 N.W.2d 317, 322 (Minn. App. 2004), review denied (Minn.
Sept. 29, 2004). A plea is intelligent if it is made “knowingly and understandingly ,”
Uselman v. State , 831 N.W.2d 690, 693 (Minn. App. 2013) (q uotation omitted), “with
sufficient awareness of the relevant circumstances and likely consequences ,” Brady v.
United States , 397 U.S. 742, 748 , 90 S. Ct. 1463, 1469 (1970). “The intelligence
requirement ensures that a defendant understands the charges ag ainst him, the rights he is
waiving, and the consequences of his plea.” Nelson, 880 N.W.2d at 858 (quotation
omitted).
The conditions of the plea agreement required Towne to testify truthfully at the
codefendant’s trial and, in exchange, Towne would receive a dispositional or durational
departure in his sentence. The state claimed that Towne breached his end of the agreement

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when he failed to identify the codefendant (who m Towne had known for ten years) at the
codefendant’s trial. T owne’s counsel a rgued at the sentencing hearing that Towne
cooperated and testified truthfully and, because Towne did not actually recognize the
codefendant, he would have committed perjury if he had identified him. The district court
judge, who had presided over the cod efendant’s trial, agreed with the state that Towne’s
testimony had not been truthful and sentenced him to the presumptive guidelines sentence
of 58 months.
Under the particular circumstances of the plea agreement in this case, w e conclude
that the district court erred. Those circumstances include the fact that neither the written
plea agreement nor any statement on the record made clear that a consequence of failing to
testify truthfully , as determined by the court, would be the imposition of a sentence in
excess of the range set out in the agreement with no opportunity to withdraw his plea.
When this lack of clarity is paired with a subjective plea condition —whether testimony is
truthful—it risks rendering the guilty plea unintelligent.
The state argu es that Towne was put on notice of the consequences because the
district court referred to the presumptive sentence at the plea hearing during the following
exchange:
THE COURT: Okay. To a durational departure unknown at
this time?
PROSECUTOR: Correct.
THE COURT: Okay. Let me just look at something here.
Presumptive is a 58-month commitment.
PROSECUTOR: So the—I mean, yes.
THE COURT: And the box being 50 to 69.

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This reference, however, appears to be an effort by the district court to understand the scope
of the proposed reduction in sentence and falls short of a clear warning to Towne of the
consequences of failing to testify truthfully. The state also argues that the court made the
consequences clear at a subsequent hearing on whether Towne had violated the conditions
of release, warning Towne, “[Y]ou’re risking going to prison for a really long time.” Even
if we were to accept this as providing clear notice of the consequences, t his statement by
the district court was made after Towne’s guilty plea had been submitted and accepted by
the court.
We acknowledge, as the state points out, that there is no explicit requirement for the
district court to recite such a warning. While that may be so, the caselaw is clear that a
defendant must be apprise d of the full c onsequences of pleading guilty , regardless of
whether that is in a written plea agreement or by a statement made on the record by the
defense, the state, or the district court. State v. Montez, 899 N.W.2d 200, 204 (Minn. App.
2017); State v. Batchelor, 786 N.W.2d 319, 324 (Minn. App. 2010 ). Here, we have the
subjective condition of “truthful” testimony, combined with the absence of a clear warning
that, if Towne failed to testify “truthfully,” he would be sentenced as if he had entered a
straight guilty plea with no downward departure or opportunity to withdraw his plea .
Under these circumstances, we cannot conclude that the plea was made “knowingly and
understandingly.” Uselman, 831 N.W.2d at 693 (quotation omitted).
The cases relied on by the state, such as Batchelor and Montez, are distinguishable.
In those cases, the defendant was provided a clear warning of the consequences for failing
to abide by the conditions of the plea agreement. For example, in Batchelor, the terms of

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the written plea agreement stated that if the defendant did not appear for sentencing, he
would receive the guidelines sentence . The district court reinforced in a hearing the
consequences of failing to appear for the s entencing: “‘If you show up you get the 60
months concurrent. If you don’t show up, then when we catch you, you get the 160 months,
which is the presumptive sentence . . . .’” Batchelor, 786 N.W.2d at 321. This court
determined that the plea agreement was intelligent because the consequences for failing to
comply with a conditional term were “expressly contemplated” by the plea. Id. at 324.
Likewise, we emphasized in Montez that it was “clear from the record that appellant
understood the direct consequences of his plea.” 899 N.W.2d at 204 (quoting Batchelor,
786 N.W.2d at 324). In Montez, the defendant agreed to cooperate with the presentence
investigation, return for sentencing, and remain law -abiding. Id. at 202. The plea
agreement stated that if the defendant failed to meet the conditions “then the above plea
agreement is in jeopardy and the court may sentence me without regard to that agreement.”
Id. The defendant further confirmed his understanding of the condition s and the
consequences for failing to meet the conditions at the plea hearing in response to
questioning by his attorney.
The other cases cited by the state similarly contain a clear record that, either in the
written plea agreement or at the plea hearing, the defendant received an explicit warning
of the consequences of failing to abide by the conditions of the agreement. See, e.g., State
v. Brown, 606 N.W.2d 670, 675 (Minn. 2000) (holding the plea clearly set conditions and
consequences of defendant failing to be accepted into treatment or fail ing to complete

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treatment: “[Appellant] understood both when he entered his plea of guilty and at
sentencing that he risked an executed double durational departure sentence . . . .”).
We thus reverse and remand this c ase to the district court. In reaching this
conclusion, we do not question the district court’s determination that Towne failed to
testify truthfully at the codefendant’s trial. We are also mindful of the possibility that
Towne may, subjectively, have be en fully aware of the consequences of this failure.
Nevertheless, because of the magnitude of the rights being waived when a defendant enters
a guilty plea, a clear statement of the conseque nces of failing to satisfy a plea condition is
necessary to ensure that the plea, in a conditional plea agreement, is intelligent.
We note that Towne has requested, as his preferred remedy, that the court sentence
him in accordance with the plea agreement. On remand, the district court may, at its
discretion, choose to either sentence Towne within the range set out in the plea agreement
or allow Towne to withdraw his guilty plea and have the case proceed to trial.
Reversed and remanded.