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This opinion is nonprecedential except as provided by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
A21-0845

State of Minnesota,
Respondent,

vs.

Juan Bustamante,
Appellant.

Filed May 2, 2022
Reversed and remanded
Frisch, Judge

Polk County District Court
File No. 60-CR-19-1615

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

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

Considered and decided by Bjorkman, Presiding Judge; Frisch, Judge; and Kirk,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
FRISCH, Judge
Following his conviction for aggravated first-degree controlled -substance sale,
appellant argues that he is entitled to withdraw his guilty plea because it was inaccurate
and therefore manifestly unjust. We reverse and remand.
FACTS
In August 2019, respondent State of Minnesota charged appellant Juan Bustamante
with one count of aggravated sale of controlled substance in the first degree in violation of
Minn. Stat. § 152.021, subds. 1(1), 2b, 3(d) (2018),1 and one count of conspiracy to commit
the same, in violation of Minn. Stat. § 152.096, subd. 1 (2018).2
The state alleged that, in October 2018, Bustamante facilitated the sale of 110 grams
of methamphetamine through an intermediary, his son. The state further alleged that this
controlled-substance sale involved the following three aggravating factors: Bustamante’s
son trafficked the narcotics across state lines; his son traveled through a park zone with the
narcotics; and his son possessed a significant amount of money, evidencing that the sale

1 This charge includes aggravating factors as an element of the controlled-substance crime
as defined by Minn. Stat. § 152.021, subd. 2b, as distinguished from an aggravated,
upward-departure sentence . See State v. Dettman , 719 N.W.2d 644, 649 (Minn. 2006)
(explaining that an aggravation -based upward-departure sentence is only permissible “if
the facts authorizing the departure were either found by a jury . . . or admitted to by [the
defendant]”).

2 The state clarified at the plea hearing that it was charging Bustamante under an
accomplice-liability theory. See Minn. Stat. § 609.05, subd. 1 (2018).
3
was for “quantities substantially larger than the minimum threshold amount for the
offense.” Minn. Stat. § 152.01, subd. 24(4), (9), (10) (2018).
In October 2020, the state offered Bustamante the opportunity to plead guilty to the
aggravated first -degree controlled -substance charge in exchange for dismissal of the
conspiracy charge. Bustamante accepted the offer. In November 2020, the district court
held a hearing wherein Bustamante pleaded guilty. In his plea colloquy , Bustamante
testified that he facilitated the sale of methamphetamine between his son and a buyer in
Polk County and that the sale was for “a significant amount” of methamphetamine .
Bustamante did not contest that the sale was for 110 grams of methamphetamine.
Bustamante then testified that he was unaware of the factual circumstances giving
rise to each aggravating factor. The district court asked Bustamante whether he knew and
understood that his son trafficked the narcotics across state lines:
Q: That methamphetamine came from the state of North
Dakota into the state of Minnesota, correct?
A: I’m not sure wher e it came from really, I just know [my
son] had it. I don’t know where he got it from or where he
brought it from.

Q: Okay. Do you, did you know the route that [your son]
drove to get to East Grand Forks?
A: No ma’am.

Q: Okay. Where was he coming from, what city?
A: I’m not sure if it was Willmar or Austin.

Q: Okay. Alright. Do you know if he was on Interstate 29
coming up from Fargo . . . ?
A: No.

Q: You don’t know?
A: No ma’am.
4

The district court next asked Bustamante if he knew and understood that his son traveled
with the methamphetamine through a park zone. See Minn. Stat. § 152.01, subd. 12a
(2018) (defining a park zone as the area within 300 feet of a public park). Bustamante
testified that he was unaware of whether his son passed through a park zone:
Q: Are you aware . . . , that [your son], in travelling to the
exchange location . . . was within 300 feet of Sherlock Park and
within 300 feet also of Itts Williams Park . . . ?
A: No ma’am.

Q: Okay. Would you have any reason to dispute that?
A: Um, no.

The district court then asked Bustamante whether his son possessed money evidencing that
the distribution was in “quantities substantially larger than the minimum threshold amount
for the offense.” Minn. Stat. § 152.01, subd. 24(10). Bustamante again testified that he
was unaware of this fact:
Q: And were you aware that [your son] had um, I believe pretty
significant amount of cash with him as part of the process?
A: No.

Following the district court’s quest ioning, the state “request[ed] that the Court
accept the probable cause portion of the complaint as part of the permanent record as part
of Mr. Bustamante’s guilty pleas.” 3 Bustamante’s counsel stated that he had no objection

3 The probable-cause portion of the complaint contained allegations that law-enforcement
officers witnessed Bustamante’s son drive from Grand Forks, North Dakota into East
Grand Forks, Minnesota and distribute methamphetamine to the confidential informant,
and that an officer knew that the son traveled through a park zone en ro ute to the
narcotics-sale location.
5
to the district court receiving the probable -cause portion of the complaint. The state then
engaged in a lengthy colloquy with Bustamante regarding the alleged aggravating factors:
Q: [F]irst of all, h[ave] you read through the complaint . . . ?
A: I, I, no not really. I glanced at it here and there, but no.

Q: You haven’t read through it?
A: Well I’ve glanced at it. I, you know, a bunch of it, I mean,
he just blamed us for everything, but I mean, he had a lot to do
with it too. So I just didn’t even bother going through it.

. . . .

Q: Okay. And you also understand that according to the facts
here and the reports that this methamphetamine that your son
brought to the [confidential informant] here came from Grand
Forks in North Dakota into East Grand Forks, do you
understand that?
A: No, I didn’t. I don’t know where he came from, I mean, I
know he was—

Q: I’m not asking if you were with, I’m asking if you
understand that? You’ve been through the reports with . . .
your attorneys, correct?
A: That’s what they said that it came from down there, but . . .

Q: Yep.
A: Yeah.

Q: Yeah. And in fact . . . that’s what your son even admitted
to when he was interviewed by law enfo rcement, that he was
supposed to meet someone . . . in Grand Forks and then it came
over to East Grand Forks. Do you understand that?
A: No, I didn’t. I didn’t understand that one.

Q: Okay, are you contesting that it came from Grand Forks
North Dakota into Minnesota?
A: Um, no. I read the report I seen it in the report.

6
Q: Okay. And you also understand that in doing that it went
through [a] park zone, that the methamphetamine here was in
a park zone?
A: Yeah, I read that also.

Q: Okay. And you’re not contesting that either?
A: No sir.

The district court found that a factual basis existed for Bustamante’s guilty plea and
accepted the plea. The district court expressly stated, “I am accepting the probable cause
portion of the complaint in furtherance of Mr. Bustamante’s plea here today.”
In March 2021, the district court held a contested sentencing hearing and thereafter
sentenced Bustamante to 144 months’ incarceration.
Bustamante appeals.
DECISION
Bustamante argues that his guilty plea was inaccurate because the state did not
establish the factual basis for the aggravati ng element of the offense .4 He further argues
that the allegations set forth in the probable-cause portion of the complaint cannot properly
be considered in determining whether a factual basis exists to support hi s plea of guilty.
The state disagrees, arguing that the probable-cause portion of the complaint establish es

4 Bustamante also argues in both his principal brief and in his pro se supplemental brief
that his sentence was based on an incorrect criminal -history score. Because we reverse
Bustamante’s sentence and conviction and because “[w]e do not issue advisory opinions,”
State v. Arens , 586 N.W.2d 131, 132 (Minn. 1998) (quotation omitted) , we decline to
address this issue.

7
the factual basis for the aggravati ng element of the crime and that Bustamante’s plea was
therefore accurate.5
A manifest injustice occurs when 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. “The accuracy requirement pr otects 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.” Id. For a guilty plea to be accurate, a proper
factual basis must be established for each element of the of fense. State v. Jones, 921
N.W.2d 774, 779 (Minn. App. 2018), rev. denied (Minn. Feb. 27, 2019) ; see Minn. R.
Crim. P. 15.01, subd. 2(7) (“The defendant must state the factual basis for an aggravated
sentence.”). A proper factual basis exists if there a re “sufficient facts on the record to
support a conclusion that defendant’s conduct falls within the charge to which he desires
to plead guilty.” Munger v. State, 749 N.W.2d 335, 338 (Minn. 2008) (quotation omitted).
“In a typical plea, where the defend ant admits his or her guilt, an adequate factual
basis is usually established by questioning the defendant and asking the defendant to
explain in his or her own words the circumstances surrounding the crime.” State v. Ecker,
524 N.W.2d 712, 716 (Minn. 199 4). The factual basis may also be established “with

5 The state also argues that Bustamante did not preserve the issue for appeal b ecause he
did not request to withdraw his plea in district court. Th is argument is without merit .
Bustamante does not forfeit his manifest-injustice argument by raising it for the first time
on appeal. See Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989) (“A defendant is free
to simply appeal directly from a judgment of conviction and contend that the record made
at the time of the plea was entered is inadequate” to establish that a plea was inaccurate,
involuntary, or unintelligent).
8
testimony of witnesses and statements summarizing the evidence.” State v. Trott , 338
N.W.2d 248, 251 (Minn. 1983). “While a guilty plea may be tactically advantageous for
the defendant, the plea is not simply a strategic choice; it is itself a conviction, and the high
stakes for the defendant require the utmost solicitude.” Florida v. Nixon , 543 U.S. 175,
187 (2004) ( quotations and citations omitted). “Accordingly, counsel lacks authority to
consent to a guilty plea on a client’s behalf.” Id.
“[T]he trial court has the primary responsibility for eliciting from defendant the
testimony needed to establish a factual basis.” State v. Nace, 241 N.W.2d 101, 102 (Minn.
1976). A district court should not a ccept a guilty plea when the defendant denies an
essential element of the offense. See State v. Olson , 133 N.W.2d 489, 492 (Minn. 1965)
(holding that “the court on its own motion should have refused to accept defendant’s plea
of guilty” when the defendant refused to testify that he committed the offense); State v.
Jones, 127 N.W.2d 153, 156 -57 (Minn. 1964) (invalidating a guilty plea when the
defendant “denied the commission of acts which constitute the essential elements of the
offense charged” by testifying, “God help me, I wasn’t even there”). “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). “Whether a plea is valid is a question
of law which we review de novo.” Lussier v. State, 821 N.W.2d 581, 588 (Minn. 2012).
Here, Bustamante asserts that his plea was inaccurate because he did not admit to
facts that established his guilt for the aggravating element of the charge. We agree.
To establish an aggravated controlled-substance crime in the first degree , the state
was required to prove two aggravating factors. Minn. Stat. § 152.021, subd. 2b(2). The
9
state alleged that the crime involved three aggravating factors: Bustamante’s son trafficked
the narcotics across state lines, his son trafficked the narcotics through a park zone, and his
son possessed money evidencing that the distribution was for “quantities substantially
larger than the minimum threshold amount for the offense.” Minn. Stat. § 152.01,
subd. 24(4), (9), (10).
Bustamante’s testimony, however, did not establish a factual basis for the
aggravating element of the crime requiring that the offense involve two aggravating factors.
Bustamante repeatedly stated that he did not know that his son traveled across state lines
with the narcotics, was unaware of whether his son traveled through a park zone, and had
no knowledge of the amount of money in his son’s possession following the drug sale.
The state appear s to concede that Bustamante’s testimony, on its own, did not
establish the necessary factual basis for the aggravating factors. The state instead asserts
that the probable-cause portion of the complaint, which was offered into the record by the
state without objection from Bustamante’s counsel, establishes the necessary factual basis
for the aggravating factors. We disagree.
In order for the allegations set forth in the probable -cause portion of the complaint
to become part of the record, the defendant must “expressly testify as to the truthfulness
and accuracy of the[] allegations of the complaint during his colloquy.” Rosendahl v. State,
955 N.W.2d 294, 298 (Minn. App. 2021). Bustamante did not expressly testify to the
accuracy of the complaint. To the contrary, Bustamante testified that he was not aware of
the contents of the complaint, had not read the entirety of the complaint, and only “glanced
10
at [the complaint] here and there.” Given Bustamante’s testimony, he was unable to testify
as to the accuracy and truthfulness of the allegations in the complaint.
The state relies on Bustamante’s counsel consenting to the state’s request to include
the complaint in the record. But counsel’s consent to include the state’s allegations in the
record does not equate to a defendant’s confirmation of the accuracy and truthfulness of
allegations in the complaint. Just as counsel cannot plead guilty on a client’s behalf, Nixon,
543 U.S. at 187, or testify to the factual basis of the offense on a client’s behalf, see Minn.
R. Crim. P. 15.01, subds. 1(8), 2(7); Ecker, 524 N.W.2d at 716, counsel cannot substitute
a defendant’s personal testimony that the state’s allegations are truthful and accurate with
a summary document—the complaint—setting forth the state’s alleged theory of the case,
see Rosendahl, 955 N.W.2d at 298. Without Bustamante’s express testimony or other
competent evidence establishing the truth and accuracy of the allegations set forth in the
complaint, the allegations in the complaint cannot establish the factual basis for the
aggravating element of Bustamante’s offense.
The state relies on Trott and cases citing Trott for the proposition that Bustamante’s
guilty plea constituted a judicial admission of the allegations in the complaint. Trott, 338
N.W.2d at 252; see Lussier, 821 N.W.2d at 589; Sanchez v. State, 868 N.W.2d 282, 289
(Minn. App. 2015), aff’d on other grounds, 890 N.W.2d 716 (Minn. 2017). Trott, however,
instructs that “[o]ther ways of establishing a factual basis include testimony of witnesses
and statements summarizing the evidence .”6 Trott, 338 N.W.2d at 251. We take this

6 Lussier similarly states that “the plea petition and colloquy may be supplemented by
other evidence to establish the factual basis for a plea.” 821 N.W.2d at 589 (emphasis
11
opportunity to emphasize that “a criminal complaint is an assertion, not evidence; it merely
details the allegations that establish the elements of the crime charged and that must be
proven beyond a reasonable doubt at trial.” State v. Pierce , 792 N.W.2d 83, 89 (Minn.
App. 2010). Thus, the allegations set forth in the probable-cause portion of the complaint
cannot support a factual basis for Bustamante’s plea of guilty in the absence of his
testimony or other evidence verifying the truth and accuracy of those allegations.
We are mindful of circumstances where a defendant may desire to plead guilty but
is unable to personally admit to the facts that make them guilty of the crime because of a
lack of firsthand knowledge.7 Here, Bustamante was able to testify to his role in arranging
the drug sale but lacked information about the details of the sale itself. In that circumstance,
our caselaw makes clear that the testimony of a defendant may be supplemented with
“other evidence.” Lussier, 821 N.W.2d at 589 ; Trott, 338 N.W.2d at 252 ; Sanchez, 868

added); see also Sanchez, 868 N.W.2d at 289 (“[A] defendant may not withdraw his plea
if the record contains sufficient evidence to support the conviction.” (emphasis added)
(quotation omitted)).

7 Bustamante also notes that “Minnesota law provides procedures for a defen dant in
Bustamante’s position to plead guilty: a Norgaard plea or an Alford plea.” See State v.
Goulette, 258 N.W.2d 758, 760 (Minn. 1977) (citing North Carolina v. Alford , 400 U.S.
25 (1970)) (providing that a defendant can plead guilty despite maintaining his innocence);
State ex rel. Norgaard v. Tahash, 110 N.W.2d 867 (Minn. 1961) (providing that a
defendant may plead guilty despite claiming a loss of memory through amne sia or
intoxication). Bustamante appears to argue that his plea should be treated as an Alford or
Norgaard plea with the attendant heightened guilty -plea procedures. But the
circumstances here do not fit into those that would give rise to an Alford or Norgaard plea
because Bustamante did not maintain his innocence or claim loss of memory or
intoxication. And at no point in time did any party or the district court specify that
Bustamante was entering an Alford or Norgaard plea. Thus, we treat Bustamante’ s plea
as a “typical” plea. See Ecker, 524 N.W.2d at 716.
12
N.W.2d at 289. But here the state did not supplement the record with other evidence.
Because Bustamante’s testimony did not establish the factual basis for the aggravatin g
element and the allegations set forth in the complaint cannot supplement his plea colloquy,
Bustamante’s guilty plea was not accurate.
Reversed and remanded.