Filed February 14, 2006
Reversed and remanded;
motions granted in part and denied in part
Mille Lacs County District Court
File No. K9-03-1442
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jan Kolb, Mille Lacs County Attorney, Christopher J. Zipko, Assistant County Attorney, Courthouse Square, 525 Second Street S.E., Milaca, MN 56353 (for appellant)
Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Crippen, Judge.
1. The district court may not enforce against the prosecution a plea agreement that remains executory pending notification of the victim of the terms of the agreement.
2. There is no manifest injustice permitting the district court to accept a guilty plea to a lesser offense over the prosecutor’s objection when the prosecution withdraws from the plea agreement prior to entry of a guilty plea because the victim opposes the terms of the agreement.
O P I N I O N
pretrial appeal, the state challenges a district court order allowing
Respondent is charged with a sexual assault that occurred in the early morning hours of February 2, 2003, at a resort in Onamia. The grand jury indicted respondent on charges of first- and third-degree criminal sexual conduct. Early in 2005, trial was set for September 26, a motion hearing was scheduled for August 25, and a court order directed that plea negotiations should be concluded at least 30 days before trial.
beginning of August 2005, the state discovered a scheduling conflict that would
On August 25, a day or two before the plea negotiation deadline, the parties assembled for the previously scheduled motion hearing. The matter apparently never went on the record. The court clerk’s notes for the day state: “inchamber conf[erence] – w[ith] att[orne]ys [–] no record made – further discussions w[ith] victim - Advise c[ou]rt 8/26.”
According to the district court’s memorandum filed a week later, a discussion on scheduling occurred in chambers; the court informed the parties it was “leaning” toward denial of continuance and asked the parties to discuss possible settlement. After
essentially an afternoon of discussion outside of the court’s presence, [an agreement was presented and t]he court expressed its willingness to accept those terms. There was discussion regarding taking the defendant’s plea on the record and prosecutor Kish requested that the plea be delayed as he had not yet notified the victim about the terms of the settlement and wished to do so before the plea was entered.
On September 1, the district court summarized what had occurred on August 25, concluding that there was “an agreement in this matter that would entail a stay of adjudication for a period of zero to five years to a plea of 4th Degree Criminal Sexual Conduct.” The court acknowledged learning that the victim was opposed to the settlement and that the state had withdrawn its offer, but the court stated it had “indicated to counsel in chambers my understanding is that an offer was made and has been accepted.”
stated that he thought he had made it “abundantly clear to both the Court and
Mr. Meshbesher” in the earlier discussion that the agreement “was not to be
considered an official offer as we wanted to run it by the victim before we
actually extended the official offer, that we were going to do that right away
district court pointed out the prosecution’s request to continue the trial date
The court proceeded to take an Alford plea from respondent. At the conclusion of the plea, the court stayed setting a sentencing hearing pending a pretrial appeal by the state. The court later granted respondent’s motion to supplement the record for appeal, following a hearing on October 27.
1. Did the district court err in enforcing the plea agreement after the prosecution withdrew from it when the court had not yet accepted the plea?
2. Was there a manifest injustice justifying the district court in accepting respondent’s plea to a lesser offense over the prosecutor’s objection?
To prevail in a pretrial appeal, the state must show clearly and unequivocally that the district court erred and that it’s ruling, unless reversed, will have a critical impact on the outcome of the prosecution. State v. Jones, 518 N.W.2d 67, 69 (Minn. App. 1994), review denied (Minn. July 27, 1994). Here, the reduction of the charge from first-degree to fourth-degree criminal sexual conduct, along with the stay of adjudication and other favorable terms of the plea, critically impact the prosecution.
of the rules of criminal procedure is a question of law, which this court
reviews de novo. State v. Whitley, 649 N.W.2d 180, 183 (
argues that it had a right to withdraw from the plea agreement when it was
merely executory in nature, before a plea had been entered on the record,
unless respondent could demonstrate detrimental reliance or prejudice.
undisputed facts establish, under
Respondent argues that he detrimentally relied on the plea agreement, or at least should have the opportunity to present evidence of detrimental reliance. But respondent has not suggested any act taken in reliance on the agreement that would establish detrimental reliance. (Respondent’s counsel conceded in the district court that the arrangements for the psychosexual evaluation, to be paid for by respondent, were cancelled when the state withdrew from the agreement.) Respondent argues that he would have been prejudiced by the “de facto continuance” sought by the state. But, since the district court accepted his plea more than three weeks before the September 26 trial date, there was no “de facto continuance.” And respondent does not suggest exactly how such a continuance would have prejudiced him.
undisputed facts of this case,
argues that the district court properly permitted him to plead guilty to a
lesser offense over the state’s objection because allowing the plea was
necessary to avoid a manifest injustice. The court may accept a plea of guilty to a
lesser offense if the court is satisfied “that the prosecution cannot introduce
evidence sufficient to justify the submission of the offense charged to the
jury or that it would be a manifest injustice not to accept the plea.”
Respondent argues that the prosecutor here committed an “abuse of process” in manipulating the plea negotiations to obtain a de facto continuance of trial, and that this constitutes a “manifest injustice.” But respondent cites no authority holding that “abuse of process” by the prosecutor, such as respondent alleges here, constitutes “manifest injustice” equivalent to a prosecution impermissibly based on race, religion, or other arbitrary classification. Moreover, there is no factual support for respondent’s claim.
prosecution made repeated attempts in the weeks before the August 25 hearing to
obtain a continuance of the September 26 trial date. The prospect that a continuance would be
denied, in accord with the announced “leaning” of the district court, may have
motivated the prosecution to make a favorable plea offer. But there is nothing in the record to dispute
the prosecutor’s asserted reason for withdrawing from the plea agreement,
namely, that the victim opposed it. It
is undisputed that all parties knew that
the record contradicts any suggestion that the prosecutor withdrew the state’s
offer to get a “de facto” continuance.
Perhaps the strongest evidence against the theory of “abuse of process”
is that, after the state withdrew from the plea agreement, it reassigned the
respondent’s abuse-of-process argument is aimed at the trial continuance issue,
we also address the fact that Favre introduces
the prospect of accepting a plea based on the “manifest injustice” of a “dishonored
plea bargain.” That term was not
explained in Favre and no authority
was cited for construing it as a “manifest injustice.” 428 N.W.2d at 831. But if the term extends to a withdrawn plea
offer, or at least to any withdrawal of a plea offer, it would conflict with
The Minnesota Supreme Court’s
decision in State v. Streiff, 673
N.W.2d 831, 835 n.3 (Minn. 2004), suggests that the roots for Favre’s dishonored-plea reference are in
an unpublished opinion of this court, an opinion that does not deal with a
withdrawn offer. The term “dishonored
plea bargain” had not been used in a reported
al. distinguishes between “broken bargains,” occurring after the guilty plea
has been entered, and “withdrawn offers,” occurring before the plea has been
entered. LaFave, supra. The Streiff court indicated that at the
plea-bargaining stage “discretion rests almost entirely with the
prosecutor.” 673 N.W.2d at 836. Although Streiff
did not involve a withdrawn plea agreement, the Streiff court’s analysis suggests that a district court would have
no authority to enforce a plea agreement against the prosecution unless a plea
had actually been entered. And that is
we concluded that the term could be read more broadly, there would be no
dishonored plea bargain in the facts of this case. The victim rights statute requires that
prosecutors notify crime victims of proposed plea agreements and advise them of
their right to object to a plea agreement or a proposed disposition. Minn. Stat. § 611A.03, subd. 1 (2004). Although the victim’s opposition here did
not obligate the prosecutor to scuttle the agreement, it provided a much
stronger reason for withdrawing from the agreement than the prosecutor’s second
Because the district court erred in enforcing the plea agreement discussed on August 25, we need not address the state’s argument that the court impermissibly interjected itself into the plea negotiations. In addition, because the state’s argument is based on the district court’s enforcement of the plea agreement, not its participation in the negotiations, this does not present a substantially different claim.
The remaining issues derive from motions filed by the parties and deferred to this panel.
The state moved to strike items that the district court admitted to supplement the record and the district court’s September 2, 2005 memorandum. This court’s record is limited to “the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.” Minn. R. Crim. P. 28.02, subd. 8.
The district court admitted affidavits of Meshbesher, another attorney in his firm, and a defense investigator. These documents relate to what occurred in and outside the court chambers on August 25 during the plea negotiations. Because the district court has determined that the record should be supplemented by those affidavits, we deny the state’s motion to strike them. We note that the documents are primarily relevant to the question of whether the district court impermissibly interjected itself into plea negotiations, an issue we have found unnecessary to resolve.
newspaper article received by the district court does not purport to supplement
the record as to what occurred in district court, and therefore it is not properly
part of the record on appeal. The
transcript of an unrelated
The district court’s September 2 memorandum explaining the court’s decision is properly included in the record on appeal because it is part of the court’s ruling and does not involve new evidence. The state’s motion to strike this document is denied.
Respondent filed a motion to submit supplemental briefing based on the documents accepted by the district court to supplement the record. Because we conclude that two of the documents are not properly part of the record on appeal and the other three do not relate to the issue that we have decided, we deny the motion for supplemental briefing.
Respondent filed a motion to strike portions of the state’s brief discussing the facts of the alleged offense. Although respondent argues that these facts are not relevant to the issues on appeal, the facts are taken from documents that were filed in the district court and are a proper part of the record on appeal. See Minn. R. Crim. P. 28.02, subd. 9. Respondent’s motion to strike is denied.
Finally, respondent filed a motion for an award of $6,000 in attorney fees plus $357.87 in costs. A respondent is entitled to reasonable attorney fees and costs in responding to a pretrial appeal filed by the state. Minn. R. Crim. P. 28.04, subd. 2(6). An award of $4,500 in attorney fees and $357.87 in costs is reasonable for responding to this appeal, and the prosecution shall pay attorney fees and costs in that amount to respondent.
D E C I S I O N
The district court erred in enforcing the withdrawn plea agreement, which was still executory, and in accepting respondent’s guilty plea to a lesser offense over the prosecutor’s objection. The matter is remanded for further proceedings. The state’s motion to strike is granted in part and denied in part. Respondent’s motions on the record and on supplemental briefing are denied. But respondent is awarded $4,500 in attorney fees and $357.87 in costs for responding to this appeal.
Reversed and remanded; motions granted in part and denied in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Although respondent did not present this issue to the district court, we address it because it has been thoroughly briefed on appeal and the record is adequate to decide it.
The decision to accept a plea to a lesser offense over the prosecutor’s
objection may violate the separation of powers. See State v. Streiff, 673
N.W.2d 831, 834 (
We reject respondent’s argument that this appeal must be dismissed or remanded
for a further record. Appellant is
responsible for ensuring that an adequate appellate record is presented to
decide the issues raised by appellant. State v.