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This opinion is nonprecedential except as provided by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
A24-1215

State of Minnesota,
Respondent,

vs.

Dustin Joseph Kenda,
Appellant.

Filed May 19, 2025
Affirmed in part, reversed in part and remanded
Schmidt, Judge

Chisago County District Court
File No. 13-CR-23-536

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

Janet Reiter, Chisago County Attorney, Jillian Skaar, Assistant County Attorney, Center
City, Minnesota (for respondent)

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

Considered and decided by Reyes, Presiding Judge; Cochran, Judge; and Schmidt ,
Judge.
NONPRECEDENTIAL OPINION
SCHMIDT, Judge
Appellant Dustin Joseph Kenda argues the district court erred by (1) accepting an
insufficient factual basis for a guilty plea, (2) imposing a lifetime conditional-release term,
and (3) denying Kenda’s motion for a downward dispositional departure. Because the
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district court did not err in accepting Kenda’s guilty plea and did not abuse its discretion
in denying his motion for a downward dispositional departure, we affirm Kenda’s
convictions and sentence for second- degree criminal sexual conduct. But we reverse the
district court’s imposition of a lifetime conditional-release term and remand for the court
to impose a ten-year conditional-release term.
FACTS
Kenda was born on March 10, 1988. Around August to October 2022— when
Kenda was 34 years old—he stayed with his sister’s family. In December 2022, Kenda’s
eight-year-old nephew reported that Kenda had touched his private parts. The nephew had
previously told another adult that Kenda had also touched another child’s private parts
when that child was three years old.
Respondent State of Minnesota charged Kenda with two counts of second-degree
criminal sexual conduct. Kenda agreed to plead guilty in exchange for a stay of execution
of his sentence and 270 days of probationary jail. But if Kenda did “not cooperate with the
pre-sentence investigation and psychosexual evaluation, fail[ed] to appear for any
scheduled hearing, or [was] arrested for or charged with a new offense, then his plea would
be considered a straight plea.”
1 Kenda filed a plea petition before the plea hearing, which
included Kenda’s age and date of birth.
After establishing that Kenda understood his rights, the state elicited the following
factual basis from him in support of his guilty plea:

1 A “straight plea” involves pleading guilty to the charged offense without “any agreement
regarding sentencing.” State v. Sanchez-Sanchez, 879 N.W.2d 324, 327 (Minn. 2016).
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STATE: . . . . did you touch the anus area and the penis and/or
groin area of an individual who at the time was 7 or 8 years
old?

KENDA: Correct.

STATE: And did you have sexual contact insofar as you
touched the anus and/or penis and groin area of another
individual who at the time was 3 or 4 years old?

KENDA: Correct.

. . . .

STATE: And your touching of those two individuals, who
were both under the age of 14, that was intentional on your
part, correct?

KENDA: Correct.

STATE: And it was— you would agree that it was of those
individuals’ intimate parts?

KENDA: Yeah.

STATE: Okay. And you didn’t have any other legitimate
reason to be touching them there, correct?

KENDA: No.

STATE: And you did so with sexual or aggressive intent?

. . . .

KENDA: It wasn’t aggressive or anything like that, but I guess
that would be correct.

STATE: Was it— was it sexual?

KENDA: Yes.

The district court accepted Kenda’s plea.
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Before the sentencing hearing, Kenda participated in finishing the presentence
investigation report, but did not complete a psychosexual evaluation. Kenda failed to
appear for sentencing. Given Kenda’s failure to abide by the plea agreement terms, the
state informed the district court that the parties would be proceeding under a straight plea
rather than the agreed-upon dispositional departure.
Kenda filed a motion for a dispositional downward departure. At the rescheduled
sentencing hearing, the district court denied Kenda’s motion and imposed concurrent
sentences of 48 months and 60 months. The court also imposed a ten -year conditional-
release term for the first count and a lifetime conditional-release term for the second count.
Kenda appeals.
DECISION
I. The factual basis for Kenda’s guilty plea is sufficient.
Kenda argues he should be allowed to withdraw his plea because the factual basis
did not “establish that he was more than 36 months older than the victims” and because
“the factual basis consisted mostly of leading questions.” The validity of a guilty plea is a
question of law that appellate courts review de novo. State v. Raleigh, 778 N.W.2d 90, 94
(Minn. 2010). After a defendant is sentenced, a defendant may withdraw a guilty plea “to
correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice occurs
when a plea was not “accurate, voluntary, and intelligent.” Raleigh , 778 N.W.2d at 94.
Kenda does not dispute that the plea was voluntary or intelligent.
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A. The plea was accurate.
“To be accurate, a plea must be established on a proper factual basis.” Id. “[A]
defendant may not withdraw his plea simply because the court failed to elicit proper
responses if the record contains sufficient evidence to support the conviction.” Id. And
“[e]ven if an element to an offense is not verbalized by the defendant, a district court may
nevertheless draw inferences from the facts admitted to by the defendant.” Rosendahl v.
State, 955 N.W.2d 294, 299 (Minn. App. 2021) (emphasis in original).
The state charged Kenda with two counts of second-degree criminal sexual conduct.
The statute under which Kenda was charged states that “[a] person who engages in sexual
contact with anyone under 18 years of age is guilty of criminal sexual conduct in the second
degree if . . . the complainant is under 14 years of age and the actor is more than 36 months
older than the complainant.” Minn. Stat. § 609.343, subd. 1a(e) (2022).
Kenda argues that his plea was not accurate because the plea colloquy included no
evidence of Kenda’s “age” or facts about “the age difference” between Kenda and the
victims. But Kenda signed a plea petition that noted his age and date of birth.
Kenda contends the plea petition should not be considered because the Minnesota
Supreme Court has not held that a plea petition can be used to establish the accuracy factor.
See State v. Jones, 7 N.W.3d 391, 399 n.6 (Minn. 2024). But, unlike in Jones, Kenda did
not deny committing an element of the offense at the plea hearing by effectively asserting
his innocence of the crime. Id. at 397. And the supreme court has previously held that
“the plea petition and colloquy may be supplemented by other evidence to establish the
factual basis for a plea.” Lussier v. State, 821 N.W.2d 581, 589 (Minn. 2012).
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Kenda expressly admitted at the plea hearing that both victims were under the age
of 14 as required by the statute. Thus, Kenda’s argument boils down to the supposed lack
of a factual basis about his own age. But Kenda’s age was established by the signed and
filed plea petition in which he acknowledged the petition’s accuracy. Plus, there can be no
credible argument that Kenda—who was 34 years old at the time of the offenses and
charged as an adult— was not at least 36 months older than the eldest victim—who was
seven or eight years old at the time of the offense. See Minn. Stat. § 609.343, subd. 1a(e).
B. The use of leading questions does not invalidate the plea.
Kenda also argues that his plea was not accurate because of the use of leading
questions to establish the factual basis. “The defendant must state the factual basis for the
plea.” Minn. R. Crim. P. 15.01, subd. 1(8). Although the use of leading questions is
discouraged, Raleigh, 778 N.W.2d at 94, the Minnesota Supreme Court has never held that
“the use of leading questions on its own invalidates a guilty plea,” Jones, 7 N.W.3d at 396.
The cases that Kenda cites to support his leading-questions argument are
distinguishable. Although the supreme court discouraged the use of leading questions to
establish a factual basis in State v. Ecker, the supreme court still concluded that an
“adequate factual basis was established” even with the prosecutor asking leading questions.
524 N.W.2d 712, 717 (Minn. 1994). And in Shorter v. State, the supreme court reversed
to allow a defendant to withdraw a plea because the district court asked no questions, the
state committed possible discovery violations, and the district court refused to hold an
evidentiary hearing after the defendant collected evidence of inadequate assistance, fear,
and investigation deficiencies. 511 N.W.2d 743, 746-47 (Minn. 1994).
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Here, the plea petition signed by Kenda clearly established a factual basis related to
his age. In addition, both the prosecutor and the district court asked Kenda clarifying
questions. Thus, the use of leading questions in this plea colloquy, standing alone, is not
enough to conclude that the factual basis was inadequate.
II. The district court erred in imposing a lifetime conditional-release term.
Kenda argues the district court improperly imposed a lifetime conditional-release
term because he does not have a prior sex-offense conviction. The state agrees, as do we.
Whether a sentence conforms to the requirements of a statute is a question of law
that appellate courts review de novo. State v. Williams, 771 N.W.2d 514, 520 (Minn.
2009). A person convicted of second-degree criminal sexual conduct is subject to a
ten-year conditional-release term. Minn. Stat. § 609.3455, subd. 6 (2022). If “the offender
has a previous or prior sex offense conviction,” the district court must impose a lifetime
conditional-release term. Minn. Stat. § 609.3455, subd. 7(b) (2022).
At sentencing, the district court stated: “I hereby adjudicate you guilty of the
offenses of criminal sexual conduct in the second degree by virtue of your plea of guilty[.]”
(emphasis added). Because Kenda’s guilty pleas were entered simultaneously, with no
temporal gap between adjudication of the offenses, he had no prior sex offenses.
State v. Brown, 937 N.W.2d 146, 156 (Minn. App. 2019); State v. Nodes, 863 N.W.2d 77,
81 (Minn. 2015). We therefore reverse the imposition of a lifetime conditional release and
remand to the district court to resentence Kenda with a ten-year conditional-release term.
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III. The district court did not abuse its discretion when it denied Kenda’s motion
for a downward dispositional departure.

Kenda argues the district court abused its discretion because “substantial and
compelling circumstances existed to support the departure.” Kenda argues his amenability
to probation is shown by “his willingness to reform and the demonstrated motivation to do
so.” Finally, Kenda argues his limited criminal history, community support,
cooperation/attitude in court, and remorse all weigh in favor of a dispositional departure.
The state argues that the district court’s decision “is supported by the record and is
consistent with the wide discretion afforded to district courts.”
The district court must impose a presumptive sentence unless “aggravating or
mitigating circumstances are present, and those circumstances provide a substantial and
compelling reason not to impose a guidelines sentence[.]” State v. Soto, 855 N.W.2d 303,
308 (Minn. 2014) (quotations and citation omitted). Appellate courts afford the district
court “great discretion in the imposition of sentences and reverse sentencing decisions only
for an abuse of that discretion.” Id. at 307-08 (quotation omitted). “[T]he presence of
mitigating factors does not obligate the court to place a defendant on probation or impose
a shorter term than the presumptive term.” Wells v. State, 839 N.W.2d 775, 781 (Minn.
App. 2013) (quotation omitted), rev. denied (Minn. Feb. 18, 2014). Instead, the district
court retains broad discretion in deciding whether to grant a motion for a downward
departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Only in a “rare” case will we
reverse a district court’s imposition of the presumptive sentence. Id.
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The district court reviewed the complaint, plea petition, presentence investigation,
and the motion. The district court denied the motion for dispositional departure and told
Kenda: “because you failed to adhere to the agreement with the State, it is a straight plea.
As such, the onus is on you to show substantial and compelling reason to depart. I did not
make that finding of substantial and compelling reason to depart.” Although some
evidence supports Kenda’s argument that he is amenable to probation, this is not the “rare”
case in which the district court’s imposition of the presumptive sentence must be reversed.
Kindem, 313 N.W.2d at 7.
Affirmed in part, reversed in part, and remanded.