This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0615
State of Minnesota,
Respondent,
vs.
Leroy Hamer, Jr.,
Appellant.
Filed April 6, 2015
Affirmed
Kirk, Judge
Steele County District Court
File No. 74-CR-12-2331
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Daniel A. McIntosh, Steele County Attorney, Christy M. Hormann, Assistant County
Attorney, Owatonna, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant
Public Defender, Connor Chapman (certified student attorney), St. Paul, Minnesota (for
appellant)
Considered and decided by Ross, Presiding Judge; Kirk, Judge; and Reilly, Judge.
UNPUBLISHED OPINION
KIRK, Judge
Appellant challenges the validity of his guilty plea, arguing that the district court
erred in finding that there was a sufficient factual basis to support his conviction for
third-degree burglary. We affirm.
DECISION
The validity of a guilty plea is a question of law, which this court reviews de novo.
State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). Minn. R. Crim. P. 15.05, subd. 1,
states in relevant part that “[a]t any time the court must allow a defendant to withdraw a
guilty plea upon a timely motion and proof to the satisfaction of the court that withdrawal
is necessary to correct a manifest injustice.” A guilty plea is invalid and manifestly
unjust if it is not accurate, voluntary, and intelligent. Raleigh, 778 N.W.2d at 93. For a
guilty plea to be accurate, a proper factual basis must be established. State v. Ecker, 524
N.W.2d 712, 716 (Minn. 1994). A proper factual basis requires “sufficient facts on the
record to support a conclusion that defendant’s conduct falls within the charge to which
he desires to plead guilty.” Kelsey v. State, 298 Minn. 531, 532, 214 N.W.2d 236, 237
(1974). Ultimately, it is the district court’s responsibility to ensure that the parties have
established a proper factual basis on the record. Ecker, 524 N.W.2d at 716.
On October 31, 2012, respondent State of Minnesota charged appellant Leroy
Hamer, Jr., with second-degree burglary and fourth-degree damage to property. The
charges arose from an incident in which appellant broke into the apartment of K.K., his
ex-girlfriend, and punched a television in the living room, damaging the screen. K.K.
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submitted a request for restitution and affidavit requesting a total of $2,076 for damaged
or missing personal property, including two televisions, one valued at $350, the other at
$1,200.
At the plea hearing, appellant’s counsel stated on the record that the parties had
reached an agreement where appellant would plead guilty to an amended count of third-
degree burglary and, in exchange, the state would dismiss the damage-to-property charge
and appellant would pay restitution to K.K. The state also agreed to recommend a
bottom-of-the-box guideline sentence. Appellant confirmed to the district court on the
record that he had enough time to talk with his attorney about the plea agreement, and
that he went line-by-line through the plea petition with his attorney. Appellant’s counsel
questioned appellant on the record about his conduct on the day in question to establish
the factual basis for the plea.
The district court found that there was a sufficient factual basis to support the
entry of appellant’s guilty plea, and entered a judgment of conviction for third-degree
burglary, dismissed the damage-to-property charge, and ordered a restitution analysis.
On January 13, 2014, the district court sentenced appellant to 24 months in prison and
ordered that he pay $2,076 in restitution.
Appellant filed an affidavit contesting K.K.’s request for restitution. Specifically,
he challenged K.K.’s claimed value of “the television,” stating that there was no
supporting documentation of its value, and K.K. had admitted that she was unsure of its
value. Appellant failed to identify which television he was referring to in his affidavit.
The district court held a restitution hearing, and the state noted that it had received a letter
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from K.K. stating that she was no longer requesting restitution. Because K.K. refused to
testify, the district court voided its earlier order requiring appellant to pay restitution.
On appeal, appellant argues that the district court erred in finding that there was a
sufficient factual basis to support a conviction for third-degree burglary. For appellant to
be guilty of third-degree burglary, the state must establish that appellant (1) entered a
building; (2) without consent; and (3) had the intent to steal or commit a felony or gross
misdemeanor while in the building. Minn. Stat. § 609.582, subd. 3 (2012).
First, appellant argues that the plea colloquy did not establish that he lacked
consent to enter K.K.’s apartment. Appellant points to the exchange with his counsel
when she asked him, “[Y]ou didn’t have [K.K.’s] permission to go into the home and
break her items; is that true?” Appellant argues that his response to counsel’s compound
question—“No. Yes, that’s true”—does not conclusively establish that he admitted to
lacking consent to enter K.K.’s apartment. But appellant also stated in the plea colloquy
that he “broke into” K.K.’s place. “Breaking” is defined as “the act of entering a building
without permission.” Black’s Law Dictionary 215 (9th ed. 2009). Applying that
definition to appellant’s admission, appellant clearly admitted to entering K.K.’s
apartment without consent when he stated that he “broke into” her apartment.
Appellant next argues that there is insufficient evidence to establish that he stole
or intended to steal from K.K.’s apartment. But the statute requires that the state
establish intent to steal or intent to commit a felony or gross misdemeanor. In his plea
colloquy, appellant agreed with his counsel’s statement that he “intend[ed] to break some
of [K.K.’s] items” to get back at her for some relationship problems that they were
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experiencing. Appellant’s admission is sufficient to establish intent to commit damage to
property under Minn. Stat. § 609.595, subd. 1(3) or subd. 2(a) (2012).
Finally, appellant argues that his plea does not establish the sufficient amount of
property damage necessary to sustain his third-degree burglary conviction as the record is
unclear as to the value of the property damage that he caused or the reduction in the value
of the property. An element of third-degree burglary is the commission of a gross
misdemeanor or felony, such as criminal damage to property. See Minn. Stat. § 609.582,
subd. 3. Third-degree criminal damage to property constitutes a gross misdemeanor and
requires proof that a person intentionally damaged property, thereby reducing the value
of property by at least $500 but not more than $1,000. See Minn. Stat. § 609.595, subd.
2(a) (stating the elements and possible sentence for third-degree criminal damage to
property); see also Minn. Stat. § 609.02, subd. 4 (2012) (defining gross misdemeanor). A
conviction of first-degree property damage requires evidence that a defendant caused at
least $1,000 in damage to property. Minn. Stat. § 609.595, subd. 1(3) (2012).
The state was required to prove intent to commit property damage of at least $500
to support appellant’s guilty plea for third-degree burglary. This court may “also look to
the whole record, beyond what the defendant said, when evaluating the quality of a guilty
plea’s factual basis.” Barnslater v. State, 805 N.W.2d 910, 914 (Minn. App. 2011).
Here, appellant admitted at the plea hearing that he intended to damage K.K.’s property
and that he was aware that he would have to pay restitution. The record includes the
complaint of the responding police officer who observed the damaged television, a
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receipt for repair of the damaged front door, and the restitution affidavit, which in total
establishes that appellant committed property damage in excess of $500.
Affirmed.
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