This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,


Joshua Alan Galle,


Filed March 1, 2005


Wright, Judge


Lake County District Court

File No. K4-03-196



John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Russell Conrow, Lake County Attorney, Lake County Courthouse, 601 Third Avenue, Two Harbors, MN  55616 (for respondent)



            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




Appealing from his conviction of first-degree burglary, appellant asserts that his guilty plea failed to comply with the constitutional requirements of due process because the factual basis for his guilty plea did not establish his possession of a dangerous weapon at the time of the offense.  We affirm.



            In connection with a home burglary committed on the morning of October 5, 2001, appellant Joshua Galle was charged with first-degree burglary while in possession of a dangerous weapon, in violation of Minn. Stat. § 609.582, subd. 1(b) (2002).  Galle pleaded guilty to this charge.  At the guilty-plea hearing, Galle’s counsel examined Galle regarding the factual basis for the guilty plea.  During the colloquy, Galle admitted that he took two firearms while he was inside the home.  Neither Galle nor the state challenged the sufficiency of the factual basis.  The district court accepted the guilty plea and subsequently sentenced Galle to 78 months’ imprisonment.  This appeal followed.



            Galle asserts that, because the factual basis for his guilty plea does not establish his possession of a dangerous weapon during the commission of the offense, his guilty plea was not accurate and, therefore, violated his right to due process.  Because Galle did not move to withdraw his guilty plea or otherwise object to the factual basis, the district court had no opportunity to consider this issue.  Under these circumstances, review is precluded unless the interests of justice require consideration of the issue and such consideration does not unfairly prejudice the adverse party.  State v. Foreman, 680 N.W.2d 536, 539 (Minn. 2004); see also Sykes v. State, 578 N.W.2d 807, 814 (Minn. App. 1998) (holding that when defendant fails to challenge factual basis for guilty plea before district court, appeal on issue is waived), review denied (Minn. July 16, 1998).  But 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 the plea was entered is inadequate in one or more . . . respects.”).  Here, the material facts are not in dispute, and the state addresses Galle’s argument on the merits.  Because there is no prejudice to the state, we proceed with consideration of this issue in the interests of justice.

To comply with the constitutional requirements of due process, a guilty plea must be accurate, voluntary, and intelligent.  State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004).  Here, the sole issue is accuracy—namely, whether the guilty plea is supported by sufficient facts to establish the elements of the offense.  State v. Iverson, 664 N.W.2d 346, 349 (Minn. 2003).  An accurate guilty plea is required to prevent a defendant from pleading guilty to a more serious offense than the defendant could be convicted of at trial.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).

The statute at issue here provides in relevant part:

Whoever . . . enters a building without consent and commits a crime while in the building, either directly or as an accomplice, commits burglary in the first degree . . . if: . . .

(b)  the burglar possesses, when entering or at any time while in the building, any of the following: a dangerous weapon, any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or an explosive[.]


Minn. Stat. § 609.582, subd. 1(b) (2002).  Galle contests the factual basis for the weapon-possession element on two distinct bases.  Because he did not have a weapon at the time of his entry, Galle argues that possession of a dangerous weapon “at the time of the offense” was not established.  Alternatively, because a victim was not on the premises at the time of the burglary, Galle asserts that he did not possess “any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon.”

When construing the statutory elements of a criminal offense, our object is to give effect to the intention of the legislature.  Minn. Stat. § 645.16 (2004); State v. Koenig, 666 N.W.2d 366, 372 (Minn. 2003).  If a statute’s language is not ambiguous, we interpret the language according to its plain meaning, without resorting to other principles of statutory construction.  State v. Anderson, 683 N.W.2d 818, 821-22 (Minn. 2004); see also Minn. Stat. § 645.08(1) (2004) (providing that words are construed according to their common usage).  When the statutory language is not reasonably susceptible of more than one meaning, it is not ambiguous.  State v. Collins, 580 N.W.2d 36, 41 (Minn. App. 1998), review denied (Minn. July 16, 1998).

The burglary statute refers to the possession of certain items “at any time while in the building,” not “at the time of the offense.”  Minn. Stat. § 609.582, subd. 1(b).  Furthermore, the statute refers to possession of “any of the following” items, which include “a dangerous weapon” or “any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon.”  Id. (emphasis added).  Because these terms are not reasonably susceptible of more than one meaning, we construe the statutory language according to its plain meaning.

To establish a factual basis for the weapon-possession element of first-degree burglary, it is sufficient to demonstrate that a defendant possessed a dangerous weapon at any time while the defendant was in the building.  This element was satisfied by Galle’s admission that he obtained firearms while inside the home.  Because Galle’s guilty plea is supported by sufficient facts to satisfy the elements of first-degree burglary, we conclude that Galle’s due process rights were not violated.

Our conclusion here comports with our decision in State v. Herbert, 601 N.W.2d 210 (Minn. App. 1999).  Herbert involved a defendant who, when pleading guilty to second-degree burglary, admitted that he obtained firearms while in the building.  Id. at 211.  The defendant was sentenced pursuant to Minn. Stat. § 609.11, subd. 5(a) (1998), which provides that “any defendant convicted of [enumerated felonies] in which the defendant or an accomplice, at the time of the offense, had in possession or used . . . a firearm” is subject to a mandatory minimum sentence of three years.  Id. 

To determine the meaning of “the time of the offense” for a burglary offense, we considered the elements of the first-degree-burglary-with-a-weapon statute, Minn. Stat. § 609.582, subd. 1(b), which penalizes weapon possession “at any time while in the building.”  Id. at 213.  We concluded that, when a sentence is imposed for a burglary offense under Minn. Stat. § 609.11, subd. 5(a), “the time of the offense” must reasonably include the time that the defendant is in the building.  Id.  Our decision in Herbert is consistent with the majority rule in other states, which provides that acquisition of firearms during a burglary subjects the defendant to prosecution for armed burglary.  Id.

Because the holding in Herbert does not directly address first-degree burglary with a dangerous weapon, Herbert is not controlling authority here.  But it supports our conclusion that the evidence in this case is sufficient to satisfy the dangerous-weapon element of the offense.

            Galle raises two additional issues in his pro se supplemental brief, asserting errors regarding the exercise of prosecutorial discretion and the performance of his counsel on this appeal.  Because arguments with respect to prosecutorial discretion were not raised before or decided by the district court, this issue is waived.  State v. Bolstad, 686 N.W.2d 531, 542 (Minn. 2004).  But we will briefly address Galle’s concerns with respect to the performance of appellate counsel. 

            To establish ineffective assistance of counsel, a defendant must demonstrate that (1) counsel failed to provide an objectively reasonable level of representation; and (2) the unreasonable representation resulted in prejudice that probably would have affected the outcome of the proceeding.  State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003).  When a defendant alleges ineffective assistance of appellate counsel but fails to establish prejudice that would affect the outcome of the proceeding, it is not necessary to consider whether the representation was unreasonable.  Zenanko v. State, 688 N.W.2d 861, 865 (Minn. 2004).  Ineffective assistance of appellate counsel based on failure to cite a case cannot be established when that case has no effect on the merits of the appeal.  Dukes v. State, 621 N.W.2d 246, 256 (Minn. 2001). 

Galle asserts that his appellate counsel erred by failing to cite State v. Kingbird, 412 N.W.2d 350 (Minn. App. 1987), review denied (Minn. Nov. 6, 1987). [1]  Kingbird addresses whether accomplice testimony was sufficiently corroborated to support a conviction of second-degree burglary.  Id. at 353.  It does not address the dangerous-weapon element in a prosecution for first-degree burglary.  Because Kingbird has no effect on the merits of Galle’s appeal, his claim of ineffective assistance of counsel fails.


[1] Although Galle cites “State v. Kingbird (1985)” in his pro se brief, our research has not produced a case with this caption and date.  Thus, our analysis is based on the reasonable inference that Galle intends to refer to State v. Kingbird, 412 N.W.2d 350 (Minn. App. 1987), review denied (Minn. Nov. 6, 1987).