This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Israel Musawwir a/k/a
Filed January 2, 2001
Ramsey County District Court
File No. K1984587
Mike Hatch, Attorney General, 525 Park Sreet, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Lawrence Hammerling, Deputy State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Forsberg, Judge.*
In this appeal from a judgment of conviction of second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (1998), appellant Israel Musawwir argues that (1) the record is inadequate to permit acceptance of his guilty plea; (2) he should be permitted to withdraw his guilty plea because the prosecution breached the plea agreement; and (3) the district court abused its discretion by not granting his motion for a downward durational sentencing departure. Because an adequate record supports the acceptance of the guilty plea, we affirm the conviction. Because the claim that the prosecution breached the plea agreement has not been presented to the district court, we decline to address it. Because this is not the rare case warranting reversal of the district court’s refusal to grant a downward departure, we affirm the sentence.
Appellant believed that his best friend was involved in a conspiracy to kill him. Based on this belief, appellant killed his friend. Appellant was charged with two counts of second-degree murder. Appellant’s attorney made a Minn. R. Crim. P. 20.01 motion to determine appellant’s competency to proceed, and appellant was sent to the Minnesota State Security Hospital for a competency evaluation. On April 29, 1999, the district court determined that appellant was competent to proceed. Not guilty pleas were entered. Appellant’s counsel requested another rule 20 competency examination. On July 27, 1999, appellant was found incompetent to stand trial, and on August 4, 1999, appellant was civilly committed as mentally ill. On October 22, 1999, the trial court found that appellant was again competent to stand trial.
In a plea agreement with the state, appellant agreed to plead guilty to second-degree intentional murder in exchange for a promise by the prosecutor not to seek a double departure in sentencing and not to oppose appellant’s motion for a downward departure in sentencing.
At the plea hearing, appellant acknowledged signing a plea petition to be entered under the plea agreement. Before entering his plea, appellant indicated that (1) he understood the charges and proceedings; (2) he had read, understood, and signed his petition to plead guilty; and (3) he understood that by making the plea, he was waiving his right to a jury trial, the presumption of innocence, and associated rights. The court accepted appellant’s guilty plea.
Appellant moved for a downward durational departure. At the sentencing hearing, the prosecutor said that the state was supporting the second-degree intentional murder charge and was not taking a position on appellant’s departure motion. The following exchange then occurred:
THE COURT: It is not your intention to amend the Complaint to include a count for murder without the intent?
[PROSECUTOR]: That is correct, in fact we added a count.
THE COURT: All right, so your position not to take a stance in opposition to the departure is not to be read by me that you concur with it, is that right?
[PROSECUTOR]: No, in fact I think the record or in chambers, I know we talked about it, and I told the Court, and I think I put on the record, that as far as the plea negotiation is concerned, we did not - - we would not accept that as part of the plea negotiation, we felt it had to be a plea to the Murder Two.
THE COURT: With the intent.
[PROSECUTOR]: With the * * * full sentence that that count would bring.
THE COURT: All right, I think it is just important that we have on the record the County is not at this point in time giving me a wink and a nod, and saying sentence this with Murder Two without the intent, and that is okay with us, Judge, you are standing by your Complaint?
[THE PROSECUTOR]: It was our intent to add within, we did - - we did not plea negotiate off of that.
The district court concluded the sentencing hearing by asking if either party had anything further to add to the record. The prosecutor responded:
Your Honor, the state maintains its position that the defendant plead guilty to the intentional murder, that has been required, and he has done that. And we also did not agree to any type of reduction and sentence in that case, and we still maintain that position, and the State has no reason to object, and has stated in effect agrees to the Probation Department’s recommendation that there be a Guidelines sentence in this case.
The court sentenced appellant to the presumptive guidelines sentence.
[T]here are three basic prerequisites to a valid guilty plea: the plea must be (a) accurate, (b) voluntary, and (c) intelligent (that is, knowing and understanding). The main purpose of the accuracy requirement is to protect the defendant from pleading guilty to a more serious offense than he could properly be convicted of at trial. The accuracy requirement also helps the court determine whether the plea is intelligently entered and facilitates the rehabilitation of the defendant (it is thought that a defendant who expressly admits the basic facts underlying a guilty plea is a more likely candidate for successful rehabilitation). The voluntariness requirement helps insure that the defendant does not plead guilty because of any improper pressures or inducements. The requirement that the plea be knowingly and understandingly made is designed to insure that the defendant understands the charges, the rights being waived and the consequences of the guilty plea.
Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989) (citations omitted).
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 of these respects.
Id.; see also State v. Newcombe, 412 N.W.2d 427, 430 (Minn. App. 1987) (allowing direct appellate review of factual basis for a Goulette plea when defendant’s claim of innocence and reasons for entering plea were addressed extensively on the record at trial court level), review denied (Minn. Nov. 13, 1987).
Appellant argues that because the record does not show that he understood the charges against him, the rights and defenses that he was giving up, or the consequences of his plea, the record is insufficient to demonstrate that his guilty plea was intelligent and voluntary.
The record establishes that appellant had an opportunity to discuss the plea agreement with counsel before he pleaded guilty. In response to his counsel’s questions, appellant testified that he signed a petition to enter a plea of guilty, he discussed the petition with his counsel, he understood the rights set forth in the petition, and he understood that he was giving up those rights by pleading guilty. The court received the petition without objection.
The existence in the record of a petition that the defendant has signed and admitted reading and understanding is significant in determining whether a plea was voluntarily and intelligently made. State v. Propotnik, 299 Minn. 56, 58, 216 N.W.2d 637, 638 (1974). Also, throughout the proceedings, appellant was represented by counsel. Where the record shows that a defendant had a full opportunity to consult with counsel before entering a plea, the court “may safely presume that counsel informed him adequately concerning the nature and elements of the offense.” State v. Russell, 306 Minn. 274, 275, 236 N.W.2d 612, 613 (1975). The fact that a guilty plea is counseled “justifies the conclusion that counsel presumably advised defendant of his other rights.” State v. Simon, 339 N.W.2d 907, 907 (Minn. 1983). Appellant has not shown any reason why we should not conclude that his counsel informed him of his rights and of the nature and elements of the offenses with which he was charged. The record sufficiently demonstrates that appellant’s guilty plea was intelligent and voluntary.
Appellant argues that he should be permitted to withdraw his guilty plea because the prosecution breached its agreement to not oppose appellant’s motion for a downward durational departure. Appellant contends that the prosecutor breached the plea agreement when he stated (1) that the plea agreement required a plea to intentional murder, “[w]ith the * * * full sentence that that count would bring,” and (2) that the state “in effect agrees to the Probation Department’s recommendation that there be a Guidelines sentence in this case.”
Generally, a prosecutor’s violation of an essential element or inducement in a plea agreement, and a timely objection to the violation, entitles a defendant to a remedy, such as * * * an opportunity to withdraw the plea.
State v. Ferraro, 403 N.W.2d 845, 848 (Minn. App. 1987) (citing Santobello v. New York, 404 U.S. 257, 262-63, 92 S. Ct. 495, 498-99 (1971)).
[I]f the State breaches an agreement and there is any question of potential prejudice or injustice to a defendant, he is entitled to a remedy.
Id. (citation omitted).
But neither appellant nor his counsel, who had placed the plea agreement on the record, objected to the prosecutor’s remarks that appellant now claims breached the plea agreement. And appellant did not make a motion to withdraw his plea. This court has held that an appellant who did not object to a prosecutor’s actions as violating a plea agreement or move to vacate his plea on that basis waived any objection to the violation of the agreement. Id. Also, in State v. Witte, 308 Minn. 214, 215, 245 N.W.2d 438, 438-39 (1976), the supreme court declined to consider the defendant’s claim that remarks the prosecutor made breached the plea agreement, and therefore, he should be permitted to withdraw his guilty plea, because the defendant failed to object to the prosecutor’s remarks. The supreme court stated in Witte:
While facially it appears that the plea agreement may have been breached, it also appears that there may have been a waiver, as defendant did not object. In the absence of any explanation, it seems unjust for defendant and his counsel to sit idly by without objection and, after finding out what the sentence is, to then cry foul.
Id. The supreme court then concluded in Witte that the better practice in such a case is to allow the appellant to develop an appropriate record in postconviction proceedings. Id.; 245 N.W.2d at 439; see also, State v. Tamminen, 282 Minn. 523, 162 N.W.2d 369 (1968) (in appeal from judgment entered pursuant to guilty plea, asserted errors that had never been presented to or considered by trial court were a collateral attack upon judgment that should be presented, if at all, to trial court by petition for postconviction relief).
Because appellant’s claim that he should be permitted to withdraw his guilty plea because the prosecution violated the plea agreement has not been presented to, or considered by, the district court, and the record is not adequate to permit review of this claim, we will not review it.
The decision whether to depart from the sentencing guidelines is within the district court’s discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Absent a clear abuse of that discretion, we will not interfere with the district court’s decision to impose a presumptive sentence. See id. (only a rare case would warrant reversing refusal to depart); State v. Casady, 392 N.W.2d 629, 634 (Minn. App. 1986) (this court defers to district court’s discretion in sentencing unless it is clearly abused), review denied (Minn. Sept. 24, 1986).
Musawwir argues that the district court abused its discretion by not granting his motion for a downward departure based upon his mental illness. See, e.g., State v. Hennum, 441 N.W.2d 793, 801 (Minn. 1989) (holding years of abuse supported downward departure for wife who shot her husband); State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984) (concluding 21-year history of mental illness deprived husband of capacity for judgment in strangulation of wife). Minn. Sent. Guidelines II.D.2.a(3) provides that a lack of “substantial capacity for judgment” may be used as a mitigating factor in sentencing. However, only a rare case warrants reversal of a district court’s refusal to decrease a sentence on that basis. See Wall, 343 N.W.2d at 25 (holding district courts retain discretion to deny downward departure even when mitigating circumstances are present); Kindem, 313 N.W.2d at 7-8 (affirming district court’s refusal to make downward departure although mitigating factors existed).
A careful review of the record demonstrates that the sentencing court took all of Musawwir’s evidence into account. This is not the “rare case” warranting reversal of a district court’s exercise of discretion. Musawwir’s evidence of an impairment in judgment is different in kind and degree from the extreme mental impairments found in Hennum and Wall.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant pleaded guilty to second-degree intentional murder on November 24, 1999. At the sentencing hearing on February 4, 2000, the court noted that the earlier plea was “lacking” in that appellant’s intent had not been established. The court stated that it could not move forward with the “woefully incomplete” record, and therefore, reestablished the guilty plea before addressing the departure motion and sentencing.