This opinion will be unpublished and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

A14-1947

Kenneth Ernest Poland, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed September 28, 2015

Affirmed

Reyes, Judge

Mille Lacs County District Court

File No. 48CR131377

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for 

appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Damien F. Toven, Milaca County Attorney, Princeton, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Harten, 

Judge.



 

 

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
2

U N P U B L I S H E D O P I N I O N

REYES, Judge

Appellant Kenneth Ernest Poland challenges a postconviction court’s denial of his 

petition for postconviction relief. Poland argues that there was no factual basis for the 

restitution amount ordered by the district court and that the postconviction court erred by 

denying his petition and allowing him to withdraw his guilty plea rather than just 

vacating the restitution order altogether. We affirm. 

FACTS

In July 2013, Poland was at Geno’s Bar in Onamia when he came into contact 

with his neighbor S.D. Poland and S.D. got into an altercation after S.D. started yelling 

at him. Officer Sletten was called to the scene and advised Poland to return to his 

apartment and have no further contact with S.D. for the night. According to the criminal 

complaint, Officer Sletten was called to Poland’s apartment complex approximately 30

minutes later. He was advised by dispatch that Poland had attempted to push open the 

screen door and inner door of S.D.’s house across the street and had broken a wooden 

railing leading up to the patio. The criminal complaint also alleged that Officer Sletten 

discovered Poland attempting to leave the apartment parking lot in a vehicle. After he 

put his spotlight on Poland’s vehicle, Poland got out and charged at Officer Sletten. 

Poland was placed under arrest and was charged with misdemeanor disorderly conductbrawling or fighting and fourth-degree criminal damage to property. 

A plea agreement was reached wherein Poland pleaded guilty to the misdemeanor 

disorderly conduct charge, and the criminal damage to property charge was dismissed. 
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No plea petition was entered, and the only factual basis for the disorderly conduct charge 

was established via examination by Poland’s counsel on the record. Poland admitted that 

he created a disturbance in Geno’s Bar that caused others to become alarmed. Poland did 

not admit, however, to any of the conduct relating to the incident at S.D.’s home. When 

asked if he went over to S.D.’s home after the bar, Poland replied, “I went home.” The 

state had no questions for Poland, and the district court accepted his testimony as a basis 

for the guilty plea. Poland was sentenced to 90 days stayed subject to one year of 

probation, $385 in fines and fees, and restitution “as determined by probation within 45 

days.” The only other reference made to restitution at the plea hearing was when 

Poland’s counsel recited the terms of the plea, stating “restitution as determined by the 

probation agent within 45 days.” 

Mille Lacs County Probation filed a request for restitution on behalf of S.D. The 

state conceded that the only damages asserted were to S.D.’s property.

1

 On September 3, 

2013, the district court ordered restitution in the amount of $393.98. A motion to 

challenge restitution was filed on September 26, 2013, and a hearing was set for October 

17, 2013. Prior to the hearing, Poland failed to file a detailed sworn affidavit contrary to 

the requirements of Minn. Stat. § 611A.045, subd. 3(a) (2014). Poland’s counsel 

requested a one-week continuance to allow time to serve the affidavit, but the district 

court denied this request and denied Poland’s motion because he failed to comply with 

section 611A.045, subdivision 3. 

 

1

The claim-loss affidavit described damage to S.D.’s cedar post, rail panel, sliding screen 

door, storm door, and door handle. 
4

On June 18, 2014, Poland filed a petition for postconviction relief, requesting that 

the restitution award be vacated because it was unsupported by the facts in the record. In 

his memorandum accompanying his motion, Poland asserted that there was “no specific 

condition of the plea agreement that restitution would be paid to [S.D.] rather than to 

Geno’s Bar where the disorderly conduct occurred.” The state contested this point at the 

hearing, claiming that “[i]t was clearly articulated and agreed upon that the restitution as 

it pertains to the alleged criminal damage to property was going to be a part of [the plea 

agreement].” The postconviction court denied Poland’s request to vacate the order but 

gave him 30 days to withdraw his guilty plea. This appeal followed. 

D E C I S I O N

“Generally, a [district] court has wide discretion in ordering restitution.” State v. 

Anderson, 520 N.W.2d 184, 187 (Minn. App. 1994). But when restitution is ordered as 

part of a plea agreement, the district court’s discretion with respect to restitution is 

“severely limited” because the court must accept or reject the guilty plea on the 

agreement’s terms. Id.; Minn. R. Crim. P. 15.04, subd. 3(1). Accordingly, when 

restitution is made a part of a plea bargain, its specific form will be left to the parties to 

negotiate. For instance, this court has upheld restitution orders in which the parties 

agreed to pay restitution to non-victims. See State v. Wallace, 545 N.W.2d 674, 677 

(Minn. App. 1996), review denied (Minn. May 21, 1996) (affirming an order directing a 

defendant to pay restitution to the “buy fund” of a police drug task force because the 

defendant agreed to do so in the plea agreement). The district court’s limited discretion 
5

in this matter stems largely from the courts’ use of contract law in analyzing plea 

agreements. See id.

“In Minnesota, plea agreements have been analogized to contracts and principles 

of contract law are applied to determine their terms.” In re Ashman, 608 N.W.2d 853, 

858 (Minn. 2000). Plea agreements “represent a bargained-for understanding between 

the government and criminal defendants in which each side foregoes certain rights and 

assumes certain risks in exchange for a degree of certainty as to the outcome of criminal 

matters.” State v. Meredyk, 754 N.W.2d 596, 603 (Minn. App. 2008) (quotation 

omitted). Where, as here, plea agreements involve multiple crimes, this court has 

recognized that such agreements “are often intricate and require a delicate balancing of 

competing considerations.” State v. Montermini, 819 N.W.2d 447, 455 (Minn. App. 

2012) (quotation omitted). Essentially, we view these types of plea agreements 

holistically and recognize that changing any one part of the agreement could alter its 

validity. See State v. Misquadace, 629 N.W.2d 487, 491 (Minn. App. 2001) (stating that, 

in a plea agreement involving multiple crimes where “[e]verything was interrelated . . . it 

would be inappropriate for this court to make piecemeal corrections without regard to the 

effect of the corrections on the plea bargain”), aff’d, 644 N.W.2d 65 (Minn. 2002).

The present plea agreement involved a number of terms, one of which was that 

Poland agreed to pay restitution “as determined by probation within 45 days.” Poland 

argues that when the parties included restitution as part of the plea agreement, it was 

understood that it would be restitution solely for the conduct related to the disorderly 

conduct charge. Because there was no restitution resulting from the incident at Geno’s
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Bar, Poland contends that the restitution order must be vacated for a lack of factual basis. 

Such an argument would be persuasive if the plea agreement was clearly limited to 

restitution relating only to the disorderly conduct charge. But the record belies this claim. 

In describing the criminal damage to property charge, the criminal complaint alleges that 

Poland “intentionally cause[d] damage to the physical property of another . . . by 

breaking a hand rail and damaging a screen door.” The complaint further alleges that 

Poland “attempted to push open the screen door and inner door of [S.D.’s] house . . . after 

he broke off the wooden log stair rail on the steps leading up to the patio.” This conduct 

is all related to the criminal damage to property charge and, in fact, the complaint 

contains no indication that any damage occurred at Geno’s Bar. Therefore, when the 

parties were contemplating restitution as a part of the plea agreement, they were 

necessarily including a promise to pay restitution for conduct relating to the laterdismissed criminal damage to property charge. Because “[a]n unqualified promise made 

as part of a plea agreement must be honored,” the postconviction court properly denied 

Poland’s petition. Meredyk, 754 N.W.2d at 603.

The procedural posture of this case further supports this conclusion.2 In a petition 

for postconviction relief, the petitioner has the burden “to set forth facts entitling [the 

 

2 We note that the timeliness of Poland’s petition for postconviction relief is not at issue. 

Poland challenged the district court’s restitution order within 30 days. See Minn. 

Stat. § 611A.045, subd. 3(b) (2014). After his challenge was denied, Poland did not file a 

direct appeal within 90 days. See Minn. R. Crim. P. 28.05 (setting a 90-day deadline in 

filing an appeal from a sentence imposed); State v. Borg, 834 N.W.2d 194, 197 (Minn. 

2013) (“[W]e conclude that court-ordered restitution is part of a defendant’s sentence.”). 

But Poland is still entitled to a right of review of the district court’s decision. State v. 

Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (“The salient feature of 
7

petitioner] to the relief requested.” State v. Turnage, 729 N.W.2d 593, 599 (Minn. 2007); 

see also Minn. Stat. § 590.04, subd. 3 (2014). Here, Poland has simply made conclusory 

assertions that the parties understood that restitution applied only to the disorderly 

conduct charge. This unsupported statement is contradicted by the criminal complaint 

and the state’s claims. Poland’s assertion alone without any factual support is not enough 

to satisfy his burden. Turnage, 729 N.W.2d at 599 (“[T]o carry this burden, petitioners 

must do more than offer conclusory, argumentative assertions, without factual support.”). 

Therefore, Poland’s petition was properly denied. 

Finally, the postconviction court appropriately relied on State v. Chapman, to craft 

a remedy allowing Poland to withdraw his guilty plea if he so chooses. 362 N.W.2d 401 

(Minn. App. 1985), review denied (Minn. May 1, 1985). Therein Chapman, pursuant to a 

plea agreement, pleaded guilty to some counts while other counts were dismissed. Id. at

402-03. Restitution was not explicitly discussed in the plea agreement but “restitution in 

some amount was clearly contemplated by the parties, and included in Chapman’s own 

sentencing proposal.” Id. at 403. The district court, however, ordered restitution on all 

counts totaling approximately $31,000 more than what Chapman proposed. Id. at 404. 

We determined that the amount ordered by the district court went so substantially beyond 

the agreement’s terms that the parties could not have contemplated that amount when 

they entered into the agreement. Id. (“Although some restitution was contemplated, we 

do not believe that a plea agreement, voluntarily and intelligently entered into, should 

 

[section 590] . . . is that a convicted defendant is entitled to at least one right of review by 

an appellate or postconviction court.”) Therefore, his appeal is timely. 
8

include such a gamble on the amount of restitution.”). In other words, the restitution 

amount order in Chapman affected the validity of the original plea agreement. We 

remanded in order to “provide Chapman an opportunity to withdraw her plea and go to 

trial, or to negotiate another plea agreement with an explicit provision for the amount of 

restitution.” Id. Importantly, we remanded not because restitution was ordered for

dismissed charges, but rather because the restitution order went beyond the terms of what 

was voluntarily and intelligently agreed upon. Id. (stating that the district court’s 

sentence did not violate any provision of the plea bargain, but rather went beyond its 

terms); see also State v. Olson, 381 N.W.2d 899, 901 (Minn. App. 1986) (discussing 

Chapman and clarifying that in remanding, this court “did not agree with Chapman’s 

contention that restitution is limited to amounts charged in the counts to which she 

pled”). 

Chapman is analogous. In arguing that restitution applied solely to the disorderly 

conduct charge, Poland assumes that there was an initial valid plea agreement. But as 

was made apparent during the postconviction proceedings, the parties have differing 

viewpoints about what exactly was agreed upon with regard to restitution. This raises

questions as to the agreement’s validity. If Poland wishes to argue that he did not 

voluntarily and intelligently enter into an agreement to pay restitution on the dismissed 

charge, it is within the postconviction court’s discretion to allow him the opportunity to 

withdraw his guilty plea and go to trial or to negotiate another plea agreement. 

Affirmed.