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This opinion is nonprecedential except as provided by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
A21-0803

State of Minnesota,
Respondent,

vs.

Ryan Timothy Kellen,
Appellant.

Filed June 6, 2022
Reversed and remanded; motion granted
Bryan, Judge

Stearns County District Court
File No. 73-CR-20-376

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

Janelle P. Kendall, Stearns County Attorney, Carl Ole Tvedten, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appe llate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Wheelock, Pres iding Judge; Jesson, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this direct appeal, appellant seeks to vacate his convictions, arguing that his guilty
pleas were unintelligent, involuntary, the produc t of mutual mistake by the parties, the
result of ineffective assistance of plea counsel, and the result of ineffective assistance of
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sentencing counsel. We conclude that a ppellant’s guilty pleas were invalid because
appellant entered into the plea agreement on the condition that he could request a
downward dispositional departure. Because such departures are prohibited by statute, we
vacate the convictions to correct a manifest injustice and remand for further proceedings.
FACTS
On January 14, 2020, respondent State of Minnesota charged appellant Ryan
Timothy Kellen with two counts of domestic assault and five counts of first-degree assault
of a peace officer. Kellen and the state reached an agreement prior to trial. According to
the written plea agreement, Kellen would plead guilty to one count of domestic assault and
two counts of first-degree assault of a peace officer. The parties assumed that Kellen could
request a downward dispositional departure. To that end, the plea petition noted that Kellen
intended “to argue for a durational or dispos itional departure,” and that the court could
“stay up to 146 months (top of the box)” if it granted Kellen’s dispositional departure
request. In addition, the petition stated that Kellen’s sentences would run concurrently
“regardless of commit or probationary term.” The state agreed to dismiss the remaining
counts.
During the plea hearing, Kellen acknowledged the rights he was giving up, and the
parties again acknowledged that Kellen would ar gue for a departure. The district court
explained that Kellen’s anticipated departure motion would be consid ered, but that there
was no guarantee that the district court would grant the request. Kellen provided the factual
basis for one count of domestic assault. Kellen also entered Norgaard pleas to two counts
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of first-degree assault of a police officer. 1 The district court entered convictions and
dismissed the remaining counts. Kellen’s counsel then requested a furlough for Kellen to
attend chemical dependency treatment “in support of the fact that we are motioning for a
dispositional departure.” The district court denied the furlough request.2
At sentencing, Kellen requested a downwa rd dispositional departure, or in the
alternative, a continuance to allow him to participate in trea tment. The state opposed the
motion, and the district court denied the departure request. The district court concluded
that Kellen was not particularly amenable to probation based on the applicable factors set
forth in State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982). The district court sentenced Kellen
to concurrent 120-month and 132-month terms of imprisonment for the first-degree assault
convictions and a concurrent sentence of on e year and a day for the domestic-assault
conviction. The district court stayed execution of the prison sentences for five years.
At no point prior to or during the sentencing hearing did the parties or the district
court acknowledge that Minnesota law prohibits dispositional departures when a person is
convicted of assaulting a police officer. Minn. Stat. § 609.221, subd. 2(b) (2018) (a person
convicted of assaulting a peace officer under subdivision 2(a), “is not eligible for probation,

1 A defendant enters a Norgaard plea if unable to admit facts due to memory loss, but
agrees there is sufficient evidence for conviction. State v. Ecker, 524 N.W.2d 712, 716-17
(Minn. 1994) (citing State ex rel. Norgaard v. Tahash, 110 N.W.2d 867, 871 (1961)).
2 Before sentencing, Kellen moved to wit hdraw his pleas. Kellen also obtained new
counsel who filed a separate motion to withdraw his pleas. In these requests, Kellen argued
that the decision to deny his furlough request effectively removed any opportunity he might
have to succeed in his departure motion. The district court denied the withdrawal requests,
determining that being held pending sent encing did not prevent Kellen from seeking a
departure. On appeal, Kellen argues that his new counsel provided ineffective assistance,
but Kellen does not appeal the denial of his presentence requests to withdraw his pleas.
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parole, discharge, work release, or supervised release, until that person has served the full
term of imprisonment as provided by law”). Kellen appeals.
DECISION
Kellen argues that he is entitled to withdraw his guilty pleas because the pleas were
unintelligent, involuntary, the product of mu tual mistake, and the result of ineffective
assistance of counsel.3 We agree that Kellen did not en ter intelligent pleas and conclude
that he is entitled to withdraw his pleas to prevent a manife st injustice. Given this
conclusion, we need not address Kellen’s alternative arguments.
“A defendant does not have an absolute right to withdr aw a guilty plea once it is
entered.” State v. Hughes , 758 N.W.2d 577, 582 (Minn. 2008). However, a defendant
must be allowed to withdraw the guilty plea at any time if “withdrawal is necessary to
correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice occurs
when a 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. The validity of a guilty plea is a question of law that we review de novo.

3 On appeal, Kellen moved to strike portions of the state’s brief and the state’s addendum
that relate to defendants in other cases rece iving “dispositional or durational departures
despite the statutory language.” “The documents filed in the trial court, the exhibits, and
the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.”
Minn. R. Civ. App. P. 110.01. “Appellate courts may not consider matters outside the
record on appeal and will stri ke references to such matters from the parties’ briefs.”
Stageberg v. Stageberg, 695 N.W.2d 609, 613 (Minn. App. 2005), rev. denied (Minn. July
19, 2005). Because the state relies on evidence outside th e record on appeal, we grant
Kellen’s motion to strike the identified portions of the state’s brief and addendum.
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Id. “The defendant bears the burden of establishing the facts that support his claim that the
guilty plea is invalid.” State v. Mikulak, 903 N.W.2d 600, 603 (Minn. 2017).
“A plea is intelligently made if the defendant understands the charges, understands
the rights that are waived by pleading guilty, and understands the consequences of the
plea.” Williams v. State , 760 N.W.2d 8, 15 (Minn. App. 2009) (citation omitted). We
determine whether a manifest injustice occurred due to an unintelligent plea by considering
what knowledge and understanding the defendant had at the time of the plea. Id.; State v.
Rhodes, 675 N.W.2d 323, 326 (Minn. 2004 ) (quoting Standards for Crim. Just.
14-2.1(b)(i)(C) (Am. Bar Ass’ n 1999)). “‘Consequences’ refe rs to a plea’s direct
consequences.” Raleigh, 778 N.W.2d at 96. Direct cons equences are those “which flow
definitely, immediately, and automatically from the guilty plea—the maximum sentence
and any fine to be imposed.” Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998).
In this case, at the time that he entered into the plea agreement, Kellen was unaware
of the statutory prohibition on dispositional departures when a person is convicted of
assaulting a police officer. See Minn. Stat. § 609.221, subd. 2(b). While he acknowledged
that his request for probation was not guarantee d, he did not know that such departures
were prohibited. Instead, he pleaded guilty on the conditio n that he would have the
opportunity to request probation. Because Kellen did not understand that the district court
could not legally grant this request, he was una ware of a direct consequence of his plea
agreement. His guilty pleas were, therefore, unintelligent and invalid. We vacate the
conviction and remand for further proceedings.
Reversed and remanded; motion granted.