This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,


Michael Karl Plain,



Filed July 11, 2000

Affirmed as modified
Klaphake, Judge


Washington County District Court

File No. K7-97-5071



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


Doug Johnson, Washington County Attorney, Eric C. Thole, Assistant County Attorney, 14949-62nd St. N., P.O. Box 6, Stillwater, MN  55082 (for respondent)


John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN  55414-3230 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Michael Plain challenges the district court’s revocation of his probation and execution of a 42-month prison sentence for felony-level violation of an order for protection under Minn. Stat. § 518B.01, subd. 14(a), (d) (1996).  Appellant violated the conditions of his probation by contacting his ex-wife on numerous occasions.  On appeal, he claims that (1) the waiver of his right to be sentenced under the sentencing guidelines was invalid because he was unaware of the presumptive guidelines sentence, and (2) the district court abused its discretion by revoking the stay because he did not intend to violate the terms of his probation and policy reasons favor continuing his probation.

Because the district court did not abuse its discretion in revoking the stayed sentence, we affirm its decision to execute the sentence.  To challenge the sentence, appellant must seek withdrawal of his plea and we decline to grant him relief that he has not requested.  Because appellant’s presumptive guidelines sentence, however, was based on an incorrect criminal history score, we modify appellant’s sentence from 42 months to 36 months.



            As part of a plea bargain, a defendant may waive his right to be sentenced under the sentencing guidelines and agree to a sentencing departure.  State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996).  “Such a waiver, however, must conform to the usual limitations accompanying the waiver of constitutional or statutory rights, that is, it must be knowing, intelligent, and voluntary.”  Id. (citation omitted).  In order to vindicate this right, Givens requires that the defendant be advised of his right to be sentenced under the guidelines, have the opportunity to consult with counsel, and be examined by the court for approval of the waiver.  Id.  The examination should be consistent with the examination required prior to a court’s acceptance of a guilty plea under Minn. R. Crim. P. 15.01.  Id

            Here, the record does not demonstrate that appellant was advised of his right to be sentenced in accordance with the guidelines.  Appellant’s plea petitions, which appear to be written on a standard form provided by Washington County, list the two crimes with which he was charged but do not specify possible sentences.  At his plea hearing, the court indicated that it “discussed the matter at length” prior to receiving his pleas. In sentencing appellant, the court commented that the sentence was a “double departure.”

            As the record does not reveal that appellant was apprised of his right to be sentenced under the guidelines as required by Givens,[1] the proper remedy would be to allow him to withdraw his plea.  See Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997) (if plea not accurate, voluntary and intelligent, defendant may withdraw it).  Here, however, appellant does not seek withdrawal of his plea; he seeks a reduction of his sentence to the presumptive sentence, a reformation of the plea agreement to which the law does not entitle him.  Where a defendant does not seek to withdraw his plea, an appellate court will not impose this remedy upon him.  See State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (finding grounds to withdraw plea but leaving choice to defendant).   

            Our inquiry into appellant’s sentence continues.  The parties agree that appellant’s criminal history score was improperly calculated on the second charge based on incorrect information provided in the sentencing worksheet.  Thus, the presumptive sentence should have been 18 months, rather than 21 months, and a double durational departure should have been 36 months, rather than 42 months.  See Minn. Sent. Guidelines IV.  A court has authority to modify or correct a sentence at any time if the sentence is the result of a clerical mistake, an error resulting from oversight, or unauthorized by law.  Minn. R. Crim. P. 27.03, subds. 8, 9.  This court will modify a criminal sentence that is based on an incorrectly calculated criminal history score.  State v. Walker, 351 N.W.2d 679, 680 (Minn. App. 1984).  Because appellant’s sentence was based on an incorrect criminal history score, we modify his sentence to 36 months in light of this undisputed error.


            Appellant also claims that the district court abused its discretion in revoking his probation because the violation was not intentional and because competing policy arguments favor continuing probation.  A district court has broad discretion in determining whether to revoke probation and this court will reverse “only if there is a clear abuse of that discretion.”  State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980); State v. Theel, 532 N.W.2d 265, 266-67 (Minn. App. 1995), review denied (Minn. July 20, 1995).  Before revoking probation, the district court must engage in a three-step analysis which (1) enumerates the conditions that were violated, (2) finds that the violation was inexcusable or intentional, and (3) finds that the need for confinement outweighs the policies supporting probation.  Austin, 295 N.W.2d at 250; Theel, 532 N.W.2d at 267.  A court’s failure to make the findings required by Austin does not amount to an abuse of discretion if the record includes sufficient evidence to support the revocation.  Austin, 295 N.W.2d at 250; Theel, 532 N.W.2d at 267.

            Appellant concedes that he violated the conditions of his probation by contacting his ex-wife.  The court did not make findings on whether the violation was intentional or weigh the need for appellant’s confinement.  The record, however, provides evidence on both issues.

Appellant’s contact with his ex-wife was prolonged, included many separate instances and types of contact, and was the same conduct for which he was found guilty in the first instance.  Given the court’s clear warning to appellant at his sentencing hearing that it would execute the sentence if appellant persisted in his behavior, appellant’s action in ignoring the warning demonstrates his intent to violate his probation.  Appellant’s claim that he thought he was able to contact his ex-wife to arrange for visitation with the children is directly contradicted by the court’s clear mandate to him to arrange for visitation through third parties and by his prior history of doing so.  Thus, the record demonstrates that appellant intended to violate the terms of his probation.

            The record also demonstrates that appellant’s need for confinement outweighs policies favoring probation.  His failure to follow the court’s order despite repeated warnings “indicates that the probation was not succeeding.”  Theel, 532 N.W.2d at 267; see also State v. Moot, 398 N.W.2d 21, 24 (Minn. App. 1986), review denied (Minn.  Feb. 13, 1987) (where probation was intended to allow defendant one last chance to succeed at treatment, defendant’s refusal to comply demonstrated need for confinement).  Thus, we conclude that the district court did not abuse its discretion in revoking appellant’s probation.

            Affirmed as modified.

[1] At a minimum, the court’s examination of a defendant to determine whether the defendant has been properly apprised of the right to be sentenced under the guidelines should ensure that the defendant knows the severity level of the offense, the defendant’s criminal history score, the presumptive sentence, any possible bases for departure from the presumptive sentence, and any other pertinent sentencing information that would be likely to affect the defendant’s sentence under the guidelines.