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This opinion will be unpublished and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
A20-0282

State of Minnesota,
Respondent,

vs.

Dustin Lee Hicks,
Appellant.

Filed December 21, 2020
Reversed and remanded
Larkin, Judge

Goodhue County District Court
File No. 25-CR-19-968

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

Stephen F. O’Keefe, Goodhue County Attorney, Erin L. Kuester, Assistant County
Attorney, Red Wing, Minnesota (for respondent)

Cathryn Middlebrook, Chief App ellate Public Defender, John Donovan, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Johnson, Judge; and Bjorkman,
Judge.

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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges his conviction and sentence for criminal vehicular homicide—
alcohol concentration of 0.08 within two hours of driving. He argues that the district court
erred by convicting him of that offense even though he pleaded guilty to another offense.
We reverse and remand.
FACTS
In April 2019, respondent State of Minnesota charged appellant Dustin Lee Hicks
with several offenses, including criminal vehicular homicide —gross negligence, under
Minn. Stat. § 609.2112, subd. 1(a)(1) (2018). The record indicates that Hicks tendered a
“straight” guilty plea to that offense and that there was no agreement regarding the sentence
to be imposed. The district court asked Hicks: “To the charge of criminal vehicular
homicide, operating a motor vehicle in a grossly negligent manner, this [is] a felony offense
and it could carry a penalty of up to fifteen years in prison, a $20,000 fine, or both; how do
you plead?” Hicks responded, “Guilty.” Hicks waived his trial rights in response to a
series of questions from his attorney, and he submitted a petition to plead guilty to the
court. Hicks acknowledged that there was no agreement regarding the sentence to be
imposed, that the state would seek an executed prison sentence, and that based on the
severity level of the offense and his criminal histo ry, the presumptive sentencing range
under the Minnesota Sentencing Guidelines was 67 to 93 months.
As a factual basis for his guilty plea, Hicks admitted that, on April 27, 2019, he
drove a vehicle after consum ing alcohol and that his alcohol concentr ation, as measured

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within two hours of driving, was 0.202. While he was driving, he swerved to avoid a deer
in the road, which caused the vehicle to roll. His passenger , K.K., was killed as a result.
Hicks acknowledged that the alcohol in his system affected his ability to avoid the deer and
that he was grossly negligent by choosing to drive after consuming alcohol.
The prosecutor questioned whether Hicks’s admissions were sufficient to establish
a factual basis for his guilty plea to criminal vehicul ar homicide—gross negligence. She
suggested that Hicks’s proffer more readily aligned with criminal vehicular homicide —
alcohol concentration of 0.08 within two hours of driving, under Minn. Stat. § 609.2112,
subd. 1(a)(4) (2018). The prosecutor stated th at both charges had the same severity level
for sentencing purposes. After some discussion on the reco rd, defense counsel stated that
she would prefer to apply the proffered factual basis to the proposed new charge instead of
adding more facts to support the gross-negligence charge. The prosecutor moved to amend
the complaint to replace the charge of criminal vehicular homicide—gross negligence, with
criminal vehicular homicide —alcohol concentration of 0.08 within two hours of driving.
Defense counsel did not object to that amendment.
The district court granted the state’s request to amend the complaint. But the district
court did not ask Hicks if he wanted to plead guilty to the amended charge of criminal
vehicular homicide—alcohol concentration of 0.08 within two hours of driving. And Hicks
did not renew his waiver of trial rights in response to the amendment or otherwise indicate
a desire to plead guilty to the new charge. In fact, after the district court granted the state’s
request to amend the c omplaint, Hicks did not make any statements at the hearing. The

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district court continued the matter for sentencing and ordered a presentence investigation,
without indicating that it had accepted Hicks’s guilty plea or adjudicated him guilty.
The parties appeared for sentencing before a different district court judge. A
sentencing worksheet indicated that the presumptive sentencing range was 100 1/2 months
to 139 1/2 months. At that time, defense counsel informed the district court that the
presumptive sentencing range was higher than she had anticipated when Hicks pleaded
guilty. The increased range was due to a sentence modifier that applied to criminal
vehicular homicide—alcohol concentration of 0.08 within two hour s of driving. Counsel
explained, “for Mr. Hicks’ benefit mostly and also for Your Honor,” that when she and the
prosecutor had contemplated “possible options for this file and what to do from a
sentencing standpoint, I don’t believe that [the prosecutor] or myself had ever had explicit
conversations about that modifier; so the numbers that we had been contemplating in terms
of possible consequence were significantly smaller.” Defense counsel conceded, however,
that the presumptive sentencing range was accurate for the new charge. T he following
exchange occurred:
THE COURT: And you’ re saying that when [Hicks] pled to
[the plea judge] you -- when [Hicks] entered that plea you
weren’t -- you weren’t factoring that in?
DEFENSE COUNSEL: That is correct. The numbers here on
the workshe et filed are in fact accurate. I looked at the
modifiers and I --
THE COURT: Okay. But they’ re higher than you and
Mr. Hicks had thought, it was beyond that piece of paper?
DEFENSE COUNSEL: Correct.

Defense counsel did not object to proceeding with sen tencing. The district court
heard from several of K.K.’s family members regarding K.K.’s tragic death and the impact

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of Hicks’s offense. The state argued for a prison sentence of 139 1/2 months. Defense
counsel argued for a downward dispositional departure and a probationary sentence. The
district court entered a judgment of conviction for criminal vehicular homicide —alcohol
concentration of 0.08 within two hours of driving, and sentenced Hicks to serve 120 months
in prison. Hicks appeals.
D E C I S I O N
Hicks challenges his conviction and sentence for criminal vehicular homicide —
alcohol concentration of 0.08 within two hours of driving. He contends that he “never
pleaded guilty to that amended offense” and argues that because he pleaded guilty only to
criminal vehicular homicide —gross negligence, that was the only offense on which
judgment of conviction could be entered.
A conviction req uires either a guilty plea, a guilty verdict by a ju ry, or a guilty
finding by the court, and it must be “accepted and recorded by the court.” Minn. Stat.
§ 609.02, subd. 5 (2018). A guilty plea is not a conviction, as a conviction does not occur
until the district court both accepts and records the guilty plea. State v. Walker, 913 N.W.2d
463, 467 (Minn. App. 2018). “[A] court ‘records’ a guilty plea upon accepting the guilty
plea and adjudicating the defendant guilty on the record.” State v. Martinez-Mendoza, 804
N.W.2d 1, 6 (Minn. 2011).
Hicks pleaded guilty to the offense of criminal vehicular homicide —gross
negligence. The district court did not accept that guilty plea or adjudicate Hicks guilty of
that offense. Instead, the district court adjudicated Hicks guilty of the amended offense of
criminal vehicular homicide —alcohol concentration of 0.08 within two hours of driving.

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Hicks argues that the district court erred in doing so because “at the most basic level, [he]
never pleaded guilty to ” criminal vehicular homicide —alcohol concentration of 0. 08
within two hours of driving, and therefore “he cannot be convicted and sentenced for that
offense.”
The state counters that the district court did not err “when it accepted [Hicks’s]
guilty plea and sentenced [him] for the offense of ” criminal vehicular homicide—alcohol
concentration of 0.08 within two hours of driving , because defense counsel “consented to
the amended charge .” The state further argues that defense counsel “was aware of and
consented to the District Court accepting the guilty plea to the amended charge.”
We reject the state’s argument for two reasons. First, the argument ignores the fact
that Hicks did not plead guilty to the amended charge . Second, “[a] decision to make a
concession of guilt as a trial strategy is, like a guilty plea, a decision that may be made only
by a defend ant and only with the defendant’ s consent.” In re Welfare of B.R.C. , 675
N.W.2d 348, 352 (Minn. App. 2004). “[T]he accused has the ultimate authority to make
certain fundamental decisions regarding the ca se, [such] as . . . whether to plead guilty,
waive a jury, testify [on] his or her own behalf, or take an appeal . . . .” Jones v. Barnes, 463 U.S. 745, 751, 103 S. C t. 3308, 3312 (1983). We therefore will not treat d efense
counsel’s concessions as a guilty plea to the amended charge by Hicks.
The district court and counsel seem to have assumed that Hicks’s guilty plea to the
offense of criminal vehicular homicide —gross negligence , automatically app lied to the
amended offense of criminal vehicular homic ide—alcohol concentration of 0.08 within
two hours of driving. We are not aware of authority supporting that assumption. Indeed,

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it is inconsistent with our jurisprudence regarding guilty pleas. See Minn. R. Crim. P. 8.02,
subd. 1 (stating that an arrai gnment must be conducted in open court and that the court
must ask the defendant to enter a plea); Minn. R. Crim. P. 15.01, subd. 1 (stating that before
a judge accepts a guilty plea in a felony case, the defendant must be sworn and questioned
regarding whether the defendant understands the precise offense to which he is pleading
guilty); State v. Bertsch, 707 N.W.2d 660, 665 (Minn. 2006) (stating that a “defendant can
hardly be said to understand the consequences of his plea when the count to which he has
pled is a moving target subject to later amendment by the state” (quotation omitted)); State
v. Trott, 338 N.W.2d 248, 251 (Minn. 1983) (stating that a plea must be intelligent to ensure
“that the defendant understands the charges, understands the rights h e is waiving by
pleading guilty, and understands the consequences of his plea”); State ex rel. Lacklineo v.
Tahash, 126 N.W.2d 646, 649 n.4 (Minn. 1964) (stating that “ a plea of guilty must be
personally and formally made by the accused”).
It is also inconsistent with caselaw indicating that a prior waiver of constitutional
rights must be renewed if the state amends a criminal complaint to include a new offense .
See State v. Little, 851 N.W.2d 878, 879 (Minn. 2014) (“Existing case law plainly requires
a court to obtain a renewed jury -trial waiver when the State amends its complaint to add
an additional charge after the defendant has made an initial jury -trial waiver.”); State v.
Rhoads, 813 N.W.2d 880, 882 (Minn. 2012) (“When the State files an amended charge that
doubles the maximum possible punishment after a hearing at which the defendant waived
his right to counsel, a defendant must renew his waiver of his right to counsel in a manner
that demonstrates an understanding of the increased maximum possible punishment.”).

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In sum, the state does not cite —and we are not aware of —authority permitting a
guilty plea to one offense to serve as the basis for a conviction of another offense. We
therefore conclude that Hicks’s conviction for criminal vehicular homicide —alcohol
concentration of 0.08 within two hours of driving is invalid.
We turn to the issue of remedy. Hicks asks this court to reverse his conviction for
criminal vehicular homicide —alcohol concentration of 0.08 within two hours of driv ing
and remand to the district court “with instructions to enter a conviction for criminal
vehicular homicide—[gross negligence], and to impose a sentence within the permissible
presumptive range for that offense.” That relief is not appropriate because the district court
did not accept Hicks’s guilty plea to criminal vehicular homicide—gross negligence, and
it was not required to do so. There is no “absolute right on the part of a defendant to plead
guilty,” but a court may, in its discretion, “allow [a defendant] to do so in proper cases .”
State v. Linehan, 150 N.W.2d 203, 206 ( Minn. 1967). The acceptance of a guilty plea is
within the district court’s discretion. Petersen v. State, 937 N.W.2d 136, 143 (Minn. 2019).
Because the district court was not required to accept Hicks’s guilty plea to criminal
vehicular homicide—gross negligence, we will not compel the district court to do so on
remand. Instead, we reverse and remand for further proceedings consistent with this
opinion.1
Reversed and remanded.

1 Because we reverse on other grounds, we do not address Hicks’s argument that the factual
record does not support his sentence.