Matthew Howard Isensee, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A22-0572

Matthew Howard Isensee, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 21, 2022
Affirmed in part, reversed in part, and remanded
Slieter, Judge

Koochiching County District Court
File No. 36-CR-19-128

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Jeffrey Naglosky, Koochiching County Attorney, International Falls, Minnesota (for
respondent)

Considered and decided by Bryan, Presiding Judge; Bjorkman, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal from an order denying postconviction relief, appellant argues that he
must be permitted to withdraw his guilty plea to threats of violence because the plea is
2
inaccurate. Appellant also claims that he is entitled to jail credit for time served at a
residential treatment facility.
A manifest injustice exists because appellant’s guilty plea was inaccurate and,
therefore, we reverse on that basis. However, because the treatment facility appellant spent
time at is not the functional equivalent of a correctional facility, he is not entitled to jail
credit, and we affirm on that issue. Therefore, we affirm in part, reverse in part, and
remand.
FACTS
In February 2019, and in response to a report that he was in a bar fight and threatened
to “kill everyone,” appellant Matthew Howard Isensee was arrested. The following day,
Isensee was charged with one count of threats of violence, based on the risk of causing
terror or inconvenience, in violation of Minn. Stat. § 609.713, subd. 1 (2018). 1
In October 2019, Isensee pleaded guilty to the charge. During the plea colloquy,
Isensee testified that on February 24, 2019, near midnight, he was at the “Outpost” bar in
International Falls, drinking alcohol, when “[m]ultiple people attacked” him. The plea
colloquy continued as follows between Isensee and his counsel:
Q: Okay and in the police reports, [the bartender] who would
testify, says that you made some threats to kill people, um
seems like it was just around her, either just inside the bar or
outside the bar, is that correct?

A: Yes.

1 “Whoever threatens, directly or indirectly, to commit any crime of violence . . . in a
reckless disregard of the risk of causing such terror or inconvenience may be sentenced to
imprisonment.” Minn. Stat. § 609.713, subd. 1.
3
. . . .

Q: So, you’re saying that you did say it, you would agree that
[the bartender] was at least a part of it that you either threatened
to kill someone or come back and do them in, right?

A: Yes.

Q: Okay. So, you made that statement, right?

A: Yes.

. . . .

Q: And you made these threats against the other people, or
people in the bar, and those threats were threats of violence,
would you agree with that?

A: Yes, but the other party was threatening me too in the same
exact matter.

Q: Okay. So, again, did you threaten to kill everyone?

A: Yes.

Then the prosecutor questioned Isensee:

Q: Mr. Isensee, how do you think, that the threats that you’re
now taking responsibility for making to F’ing kill everybody,
how do you think that made them feel?

A: Um, I believe only one person heard it, but I believe she
was probably could’ve been a little scared at the moment, but.

Q: Okay, which, do you know which person you think is the
one that heard it?

A: The one that made the record[ed] statement.
2 [The
bartender] or whatever.

Q: Okay, the bartender?

2 This recorded statement is not part of the record on appeal.
4
A: Yes.

Q: And so, you agree that when [the bartender] heard you say
that you were going to kill everyone that she was afraid that
you were going to act on that?

A: Um, I don’t think she was afraid I was going to act on it,
she personally knows me from, for like 15, 16 years now.

Then Isensee and his counsel resumed with this colloquy:
Q: [Y]ou made these threats, right? The second one is that
you all, didn’t actually intend, but you made the statements in
reckless disregard that could, could have or would tend to
objectively cause fear in another, right?

A: Yes.

Q: So, the statements that you have admitted to, you weren’t,
you recklessly made those statements --

A: Yes.

Q: -- would that be correct?

A: Yes.

The district court “defer[red] acceptance of the plea” until sentencing.
During the January 2020 sentencing hearing, the district court accepted Isensee’s
guilty plea, entered a conviction, granted a downward dispositional departure, stayed
execution of a 32-month prison sentence, and placed Isensee on probation for five years.
The district court awarded Isensee 169 days of credit for time served.
A probation condition required Isensee to successfully complete inpatient chemical-
dependency treatment at Project Turnabout. Isensee spent 46 days in treatment at Project
Turnabout in late 2020.
5
Multiple probation violation reports were filed, and a contested probation violation
hearing was held in June 2021. The district court found that Isensee violated two conditions
of his probation, revoked Isensee’s probation, and executed his 32-month prison sentence.
In March 2022, Isensee filed a petition for postconviction relief arguing that he
should be permitted to withdraw his guilty plea as “constitutionally inaccurate.” The state
did not respond. 3 In April 2022, without a hearing, the postconviction court denied
Isensee’s petition in its entirety. Isensee appeals.
DECISION
“We review the denial of a petition for postconviction relief for an abuse of
discretion. A postconviction court abuses its discretion when it has exercised its discretion
in an arbitrary or capricious manner, based its ruling on an erroneous view of the law, or
made clearly erroneous factual findings.” Pearson v. State , 891 N.W.2d 590, 596 (Minn.
2017) (quotation and citation omitted). We will sustain the postconviction court’s factual
findings if they are supported by sufficient evidence in the record. Cuypers v. State, 711
N.W.2d 100, 103 (Minn. 2006). “A petitioner bears the burden to establish by a
preponderance of the evidence that facts exist that warrant postconviction relief.” Tscheu
v. State, 829 N.W.2d 400, 403 (Minn. 2013).
I. Isensee’s guilty plea was inaccurate.

A defendant does not have an absolute right to withdraw a guilty plea. State v.
Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). But a court must allow withdrawal if it is

3 The state also did not file a responsive brief in this appeal and, pursuant to Minn. R. Civ.
App. P. 142.03, we determine the case “on the merits.”
6
necessary to correct a manifest injustice. Minn. R. Crim. P. 15.05, subd. 1; Lussier v. State,
821 N.W.2d 581, 586 n.2 (Minn. 2012) (reaffirming that “a motion to withdraw a guilty
plea made after sentencing must be raised in a petition for postconviction relief”) . “A
manifest injustice exists if a guilty plea is not valid.” Raleigh, 778 N.W.2d at 94. A
constitutionally valid plea must be accurate, voluntary, and intelligent. Id. The defendant
bears the burden of showing that his plea was invalid. Id.; see also Lussier, 821 N.W.2d
at 588 (holding that the accuracy requirement is intended to “protect 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” (quotation omitted)). The validity of a guilty plea is a question
of law that we review de novo. Raleigh, 778 N.W.2d at 94.
A guilty plea is accurate if it is supported by a proper factual basis. State v. Theis,
742 N.W.2d 643, 647 (Minn. 2007). “In a typical plea, . . . 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. 1994) . “The factual basis of a plea is inadequate when the defendant
makes statements that negate an essential element of the charged crime because such
statements are inconsistent with a plea of guilty.” State v. Iverson, 664 N.W.2d 346, 350
(Minn. 2003).
Minnesota Statutes section 609.713, subdivision 1, provides that a person is guilty
of threats of violence if he “threatens, directly or indirectly, to commit any crime of
violence with purpose to terrorize another . . . or in reckless disregard of the risk of causing
7
such terror.” The reckless-disregard provision is at issue here. The supreme court recently
concluded that:
a person recklessly makes threats of violence, in violation of
section 609.713, subdivision 1, when (1) through words or
actions, []he co mmunicates an intention to injure another or
their property; (2) the threat is to commit a statutorily defined
crime of violence; (3) in context, those words or conduct create
a reasonable apprehension that []he will follow through with or
act on the threat; and (4) []he makes the violent threat in
conscious disregard of a substantial and unjustifiable risk that
h[is] words or conduct will cause extreme fear.

State v. Mrozinski, 971 N.W.2d 233, 240 (Minn. 2022).
“[T]he question of whether a given statement is a threat turns on whether the
communication in its context would have a reasonable tendency to create apprehension that
its originator will act according to its tenor.” State v. Schweppe, 237 N.W.2d 609, 613
(Minn. 1975) (quotation omitted). “Because threats are context specific, a person who
might lack a specific intent to threaten or terrorize may nevertheless utter an objectively
threatening statement recklessly, committing a terroristic-threats crime.” State v. Bjergum,
771 N.W.2d 53, 57 (Minn. App. 2009), rev. denied (Minn. Nov. 17, 2009). Although
“declaring the intent to injure by an unlawful act constitutes a terroristic threat,” it is only
so “when the person who utters the statement recklessly disregards the risk of terrorizing
another.” Id. Again, Isensee’s testimony is the sole basis for our review as to the context
of Isensee’s statement in the bar. See Ecker, 524 N.W.2d at 716.
The postconviction court found that Isensee “admitted to threatening to kill
everyone with reckless disregard as to the risk of causing terror.” It based this finding on
Isensee’s affirmative responses to the questions that he “either threatened to kill someone
8
or come back and do them in, right?” and “So again, you threatene d to kill everyone?”
Lastly, the postconviction court found that he admitted “his threats were reckless and that
they could have caused fear in another.”
Isensee argues that withdrawal of his guilty plea is necessary to correct a manifest
injustice because his plea was inaccurate and, therefore, invalid. Specifically, Isensee
contends that there is an insufficient factual basis supporting his guilty plea as to the third
and fourth elements4 of the offense because he did not admit to acting in reckless disregard
of the risk of causing terror. Isensee does not challenge that the first two elements were
established by his testimony.
Element Three
Isensee’s plea colloquy does not establish that his threat created a reasonable
apprehension that he would follow through with or act on his threat. Mrozinski, 971
N.W.2d at 240. Isensee testified that only the bartender heard him say that he would “kill
everyone” and that he did not “think [the bartender] was afraid [he] was going to act on it”
because “she personally knows [him] from, for like 15, 16 years now.” And because the
sole basis for the conviction is Isensee’s testimony, there exists no circumstantial evidence
that Isensee’s threat created a reasonable apprehension that he would follow through, such
as the effect his statement had on the bartender, or anyone else. See Schweppe, 237 N.W.2d
at 614 (stating that a “victim’s reaction to [a] threat [is] circumstantial evidence relevant to

4 The term “elements” is based on the supreme court’s recent direction in Mrozinski, 971
N.W.2d at 240. We note, however, that jury instruction guidelines at the time of this case
describe three elements. See 10 Minnesota Practice, CRIMJIG 13.107 (2021).
9
the element of intent of the defendant in making the threat”). To the contrary, Isensee
testified that he did not believe that the bartender “was afraid” he would act on his words.
That is, Isensee’s testimony negated element three. Iverson, 664 N.W.2d at 350 (“The
factual basis of a plea is inadequate when the defendant makes statements that negate an
essential element of the charged crime because such statements are inconsistent with a plea
of guilty.”).
Therefore, Isensee’s plea colloquy fails to establish that his words, in the context he
provided by his testimony, created a reasonable apprehension that he would follow through
with or act on his threat. Id.
Element Four
During his plea colloquy, Isensee did not admit that his threat was made “in
conscious disregard of a substantial and unjustifiable risk that h[is] words or conduct
[would] cause extreme fear.” Id. “Recklessness requires deliberate action in disregard of
a known, substantial risk.” Bjergum, 771 N.W.2d at 57. Reckless disregard “means that
the defendant, even though not having the specific purpose of terrorizing another,
recklessly risks the danger that the statements would be taken as threats by another and that
they would cause extreme fear.” Id. (emphasis omitted) (quotation omitted). “Terrorize
means to cause extreme fear by use of violence or threats.” Schweppe, 237 N.W.2d at 614.
The totality of Isensee’s testimony as to this element was in response to the question
of whether he “made the statements in reckless disregard that could, could have or would
tend to objectively cause fear in another.” (Emphasis added.) Isensee answered, “Yes.”
However, Isensee was not asked, nor did he admit, that he consciously disregarded “a
10
substantial and unjustifiable risk that h[is] words or conduct [would] cause extreme fear.”
Mrozinski, 971 N.W.2d at 240 (emphasis added). Instead, he specifically testified that the
bartender heard him and she “could’ve been a little scared at the moment.” Therefore,
Isensee did not admit facts sufficient to establish the fourth element. Bjergum, 771 N.W.2d
at 57 (requiring extreme fear); Schweppe, 237 N.W.2d at 614 (same).
Because Isensee’s testimony did not establish the third and fourth elements of
threats of violence as set forth in Mrozinski, his guilty plea was inaccurate, and the
postconviction court abused its discretion in denying his petition to withdraw his guilty
plea.5
II. Isensee is not entitled to jail credit for his time spent at Project Turnabout.

Because the issue of jail credit may still be important despite our resolution of the
first issue, we now address Isensee’s argument on this question. Isensee contends that by
denying his request for jail credit for time in treatment, the postconviction court erred “by
focusing on cosmetic differences between Project Turnabout and other facilities.”
Additionally, he argues, the postconviction court erred in concluding that “Isensee could
simply have left the facility with no repercussions.” Lastly, he argues, the postconviction
court improperly “discounted the COVID- predicated restrictions” at the facility by

5 Isensee also argues that “threats made in reckless disregard of terrorizing another are
protected speech,” and therefore, the threats of violence statute is unconstitutional. Isensee
concedes, however, that “[t]he Minnesota Supreme Court recently rejected this argument”
in Mrozinski. We agree. Isensee’s argument is a facial challenge to the constitutional
validity of the statute, see Rew v. Bergstrom , 845 N.W.2d 764, 778- 85 (Minn. 2014) and
the supreme court in Mrozinski held that “the Statute is not facially overbroad.” 971
N.W.2d at 247.
11
concluding that “those restrictions ‘were instituted for the safety and protection of
participants to avoid an outbreak of [COVID -19] and not for purposes of restraining or
confining [Isensee] or other participants during this time period.’”
A defendant is entitled to credit against their sentence for time spent in custody prior
to sentencing. Minn. R. Crim. P. 27.03, subd. 4(B). “The defendant has the burden of
establishing that he is entitled to jail credit for any specific period of time.” State v. Clarkin,
817 N.W.2d 678, 687 (Minn. 2012). Awarding custody credit is not a matter within the
district court’s discretion. Id. Rather, the district court makes findings regarding the
circumstances of the custody for which credit is requested and applies the law to those
circumstances. Id. We review a district court’s factual determinations for clear error and
its legal conclusions de novo. Id. “Findings of fact are clearly erroneous if, on the entire
evidence, we are left with the definite and firm conviction that a mistake occurred.” State
v. Andersen, 784 N.W.2d 320, 334 (Minn. 2010); see also In re Civ. Commitment of
Kenney, 963 N.W.2d 214, 223 (Minn. 2021) (stating that, on review for clear error, the
“appellate court is not to weigh, reweigh, or inherently reweigh the evidence,” but must
consider evidence “only as is necessary to determine beyond question that it reasonably
tends to support the findings of the factfinder” (quotation omitted)).
In addition to receiving custody credit for time spent in jail or prison, the supreme
court has held that “fairness and equity demand that [custody] credit be awarded” to
defendants placed in residential treatment facilities when “the level of confinement and
limitations imposed” at the facility “are the functional equivalent of those imposed at a jail,
workhouse, or regional correctional facility.” Asfaha v. State, 665 N.W.2d 523, 528 (Minn.
12
2003). In determining whether this standard is met, “district courts must look closely at
the facts to determine the level of confinement and limitations imposed on a defendant.”
State v. Razmyslowski, 668 N.W.2d 681, 684 (Minn. App. 2003).
Lack of Security
Isensee claims that the postconviction court overemphasized “that there were no
bars on the windows at Project Turnabout” because “ the alarm system served the same
function: to deter and prevent people from using the windows to leave the facility.”
Additionally, Isensee claims the postconviction court overemphasized “that Project
Turnabout was not surrounded by a fence.” Isensee does not explicitly argue that these
findings are clearly erroneous but argues that they are “not significant” in the analysis of
whether a facility meets the Asfaha standard. And Isensee claims the postconviction court
underemphasized that “at least part of Project Turnabout is not easy to access because it is
located on a ‘very hilly/rocky area,’ providing a kind of natural fence.” We are not
persuaded.
In Asfaha, the supreme court concluded that the facility, a residential treatment
program for juveniles with severe conduct disorder, was the functional equivalent of a
correctional facility because the program was designed with security as “the most crucial
concern.” 665 N.W.2d at 524, 527, 528. The supreme court identified additional relevant
circumstances including that a “central control booth” controlled access to all doors within
the facility as well as entry to and exit from the facility, the windows were barred, the
exercise area behind the building was secured by fencing, staff continually monitored
surveillance cameras that captured activity throughout the building (except for the
13
individual cells), and if residents were transported from the facility, they were placed in
“mechanical restraints.” Id. at 527. The supreme court concluded that Asfaha was entitled
to custody credit because the facility “imposes essentially the same limitations on a
person’s freedom as a jail, workhouse, or regional correctional facility.” Id.
Thus, the lack of barred windows and fencing at Project Turnabout are relevant in
making this determination. Id. A picture of the facility shows that the windows do not
have bars and there is no fence surrounding the facility.
6 And to the extent that the alarm
system and the “rocky area” served to deter and prevent people from leaving the facility,
the record as a whole supports the postconviction court’s finding that the facility was not
designed with security as “the most crucial concern.” Id.
Leaving the Facility with No Repercussions
The postconviction court found that “[b]ased upon the evidence presented to this
Court, Project Turnabout is different than the treatment facility at issue in [Asfaha],” and
“if he left the program ‘without approval’ he would be discharged from the program and
would be required to reapply if he wished to re-enter the program.”

6 Isensee also cites a nonprecedential case to support his argument. See State v. Truesdale,
No. A17-1632, 2018 WL 4558168, at *2 (Minn. App. Sept. 24, 2018). Truesdale is
factually distinguished because residents in the facility in that case “were locked in and
their movements were closely monitored by staff via cameras, motion detectors, and
personal observation .” Id. Additionally, “[t]he facility included mechanical restraints”
such as “‘safety’ chains, leg locks and waist shackles. Secure cells were available as a
disciplinary measure, and at the beginning of his stay, whenever Truesdale was transported
outside of [the facility], he was moved in shackles and with a cinch on his waist and legs.”
Id. Our court concluded that “[t]hese are all components of a jail -like setting.” Id. This
record contains no such evidence.
14
Isensee argues that he “was required to be at the facility, both by the terms of
probation” and “the facility’s rules.” Moreover, he argues, “[n]othing in the record
supports the idea that he could leave as he saw fit.”
As we have already noted, the postconviction court correctly found that security is
not “the most crucial concern.” Id. Rather, “[i]f a resident leaves without approval, then
the resident will be discharged from the program” at which time the resident “must repeat
the application process” in order to reenroll. The record indicates that Project Turnabout
does not share any of the circumstances described in Asfaha, except cameras throughout
the facility and windows secured with an alarm system.
COVID-19 Restrictions
The postconviction court found that “the added restrictions were instituted for the
safety and protection of participants to avoid an outbreak of [COVID-19] and not for
purposes of restraining or confining [Isensee] or other participants during this time period.”
The record shows that:
In non-COVID times, residents would be escorted from
their unit to the dining area by a staff member who sits outside
the cafeteria while residents eat. The staff member informs
residents when the allotted mealtime has concluded and escorts
residents to their next destination. In non- COVID times,
residents would be permitted to use the gym during a specified
time each day but would always be supervised by a fitness
trainer and staff member during that time.

Prior to the pandemic, visitors were permitted during a
two-hour block of time on weekends. Staff supervised all
visit[s]. Visitors were required to check in with staff prior to
visitation and to submit their personal belongings to staff to be
searched.

15
The record also shows that “Isensee was restricted to the bedroom he shared with two other
men, and to the common room he shared with several. He was prohibited from using the
gymnasium or the chapel and from eating in the cafeteria,” and “Isensee could not have
any in-person visits.”
Isensee does not claim that the postconviction court’s finding was erroneous.
Instead, he argues that “the purpose of the [COVID-19] restrictions is irrelevant” because
“[t]he question is whether the effect of the restrictions made the facility comparable to a
jail, workhouse, or regional correctional facility.” But Isensee does not cite any authority
for this argument. And as already discussed, even with the COVID-19 restrictions in place,
Project Turnabout is not similar to the facility in Asfaha because it does not share the
critical circumstances noted in Asfaha, other than the presence of cameras throughout the
facility and windows secured with an alarm system. The record does not support that
security is “the most crucial concern” at Project Turnabout. Asfaha, 665 N.W.2d at 527.
There is no evidence that the COVID-19 restrictions had the purpose of security as the
most crucial concern. Additionally, there is no evidence to demonstrate, as existed in
Razmyslowski, that when residents were transported from Project Turnabout they “were
regularly cuffed, attached to security waist belts, and accompanied by an armed guard.”
668 N.W.2d at 684.
Thus, the postconviction court’s findings are not clearly erroneous, Andersen, 784
N.W.2d at 334, and, therefore, it properly concluded that Isensee was not entitled to
16
custody credit against his sentence for his time spent at Project Turnabout. 7 Pearson, 891
N.W.2d at 596 (reviewing the denial of postconviction claims for abuse of discretion).
Affirmed in part, reversed in part, and remanded.

7 Isensee filed a one- page pro se supplemental brief arguing that “the prosecutor, judge,
public defender and probation officer all worked to gether[sic] to false imprison [him]”; he
was charged with “false probation violations”; his attorney and the prosecutor did not
permit him to have a jury trial; the prosecutor “racially profil[ed]” him; and an investigation
should be opened against the prosecutor. The brief contains no citation to the record or
any legal argument and there is no indication that Isensee previously raised these
arguments. Therefore, Isensee has forfeited the arguments raised in his supplemental brief.
See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (concluding that pro se
defendant’s assertions are waived if they contain no argument or legal authority to support
allegations); Hecker v. Hecker , 543 N.W.2d 678, 681 n.2 (Minn. App. 1996) (requiring
that material assertions of fact be supported by citation to the record), aff’d, 568 N.W.2d
705 (Minn. 1997); Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (concluding that
appellate courts “generally will not decide issues which were not raised before the district
court”).