This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,





Thomas Eugene Christianson,



Filed March 14, 2000


Kalitowski, Judge


Hennepin County District Court

File No. 98086991


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Thomas Eugene Christianson challenges his conviction of attempted first-degree criminal sexual conduct and second-degree criminal sexual conduct, claiming the district court abused its discretion in denying his motion to withdraw his guilty plea based on the parties’ mutual mistake concerning his criminal history score.  We affirm.


            The ultimate decision to allow a defendant to withdraw a guilty plea before sentencing is left to the sound discretion of the trial court, “and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion.”  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

            A court may allow a defendant to withdraw a guilty plea before sentencing if it is fair and just to do so, after considering defendant’s offered reasons for the withdrawal as well as “any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.”  Minn. R. Crim. P. 15.05, subd. 2.   The “fair and just” standard does not entail an absolute right to withdraw a guilty plea before sentencing, and the court must guard against a standard that “would undermine the integrity of the plea-taking process.”  Kim, 434 N.W.2d at 266 (citation omitted).  The defendant bears the burden of proving that the reason for withdrawing the plea is fair and just.  Id.

            Christianson claims that he is entitled to withdraw his guilty plea because the parties made a mutual mistake concerning his criminal history score.  We disagree.  A defendant may withdraw his guilty plea if the plea agreement provides for a specific sentence based entirely on a criminal history score that all the parties mistakenly believed was accurate.  State v. DeZeler, 427 N.W.2d 231, 235 (Minn. 1988).  Where a plea agreement does not provide for a specific sentence and the district court has made no promises concerning the nature or length of the sentence, a defendant may not withdraw a guilty plea simply because he receives a presumptive sentence based on a correct criminal history score.  Spann v. State, 368 N.W.2d 377, 379 (Minn. App. 1985).

            Here, there could be no “mutual mistake” because at the time of the plea hearing, the parties conceded they did not know Christianson’s exact criminal history score.  The prosecutor informed the court at the plea hearing that according to the plea agreement, Christianson

would plead guilty to count I * * * with an upward departure in sentencing.  If the defendant has one point, the departure would be upward to 68 months.  If he has two points on his criminal history score, it would be 80 months executed.  In other words, it’s dependent on where he falls on the guidelines and the final number would amount to the equivalent of 30 months off of the presumptive level 8 sentence.


(Emphasis added.)  The district court determined that the plea was not for a specific sentence but was instead an agreement to calculate the sentence on a specified formula once Christianson’s criminal history score became known.   The record supports this determination.  Moreover, although the prosecutor mentioned criminal history scores of one or two based on the Pretrial Evaluation Report, the report contained a disclaimer regarding the preliminary nature of the criminal history:

The information contained herein is based on the resources available at this time.  Given the current information, it does not purport to have identified all felonies, issues of active supervision, misdemeanor, or gross misdemeanor record.  This summary may not be viewed as a thorough or complete listing of the defendant’s prior record and is not intended to replace Guidelines.


Thus, the report did not purport to be a final determination of appellant’s criminal history. 

            The presentence investigation revealed that Christianson actually had a criminal history score of five as a result of two previously undisclosed burglary charges.  The district court justified its denial of the motion to withdraw in part on Christianson’s failure to disclose these convictions.  It is not “fair and just” to allow a defendant to withdraw a guilty plea if he deliberately misleads the court and counsel about his prior criminal record.  State v. Bridgeforth, 357 N.W.2d 393, 394 (Minn. App. 1984), review denied (Minn. Feb. 6, 1985).  On appeal, Christianson claims he had no reason to believe his old convictions were relevant.  But Christianson should have been aware that his prior convictions would affect the final calculation of his criminal history score.  Moreover, at the time of the plea hearing, he was the only individual capable of alerting the attorneys to his prior record.  We conclude the district court did not err in considering his failure to do so in refusing to permit him to withdraw his guilty plea.  See Perry v. State, 595 N.W.2d 197, 200 (Minn. 1999) (affirming denial of second postconviction petition for withdrawal of guilty plea based on mistaken score where defendant knowingly concealed previous felonies).

            Christianson also argues that the court erred in concluding that withdrawal of the plea might prejudice the state.   We disagree.  Christianson relies on Hirt v. State, 298 Minn. 553, 214 N.W.2d 778 (1974), for the proposition that the court may consider only “substantial prejudice” to the state in justifying denial of an otherwise valid motion to withdraw a guilty plea.  But both the language of the statute and caselaw subsequent to Hirt allow the trial court to consider “any prejudice” caused to the state by a plea withdrawal.  See Minn. R. Crim. P. 15.05, subd. 2 (stating the court can consider “any prejudice”); Kim, 434 N.W.2d at 266 (noting language of rule 15.05, subd. 2).  

            Thus, we reject Christianson’s argument that the court improperly determined that withdrawal would prejudice the state by requiring it to incur additional time, effort, and expense to reassemble its case.  Moreover, the district court also properly considered the negative emotional consequences that granting Christianson’s motion would have on the victims.  See Kim, 434 N.W.2d at 267 (noting trial court properly considered interests of victim in denying motion to withdraw plea).

            Although Christianson may have hoped that his sentence would be only 68 or 80 months, he did not receive an express promise concerning its duration.  Rather, the plea agreement had a built-in contingency tied to a determination of his criminal history score.  We conclude the district court did not abuse its discretion in refusing to permit withdrawal of his guilty plea and imposing a sentence consistent with the formula contained in the plea agreement.  Finally, we have carefully reviewed appellant’s assertions in his pro se supplemental brief and conclude these claims are without merit.