This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A. 08, subd 3 (2000).






Earl Lawrence Sanders, petitioner,





State of Minnesota,



Filed October 9, 2001

Reversed and remanded

Lindberg, Judge*


Sherburne County District Court

File No. K3-98-1892


John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)


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


Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, 13880 Highway 10, Elk River, MN 55330 (for respondent)



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

U N P U B L I S H E D   O P I N I O N




This is an appeal from an order denying a postconviction petition that challenged a 1999 sentence for second-degree controlled substance crime.  Appellant argues that an upward durational departure based solely on the plea agreement was an abuse of discretion because the legislature has overruled the Minnesota Supreme Court decision that allowed departures based on plea agreements.  Appellant also argues that the plea was not intelligently made because appellant was erroneously told he would be eligible for the department of correction's “boot camp,” even though the promise was not part of the formal plea agreement.  Because we agree that the district court should have provided written reasons for the upward departure from the sentencing guidelines, we reverse and remand.



On November 12, 1998, Sherburne Deputy Sheriff Dean Cichy noticed a vehicle with flickering taillights.  He began following the vehicle, and when he turned on his emergency lights the vehicle accelerated.  After a high-speed chase, Cichy stopped the vehicle and arrested the driver, appellant Earl Lawrence Sanders.  During the search incident to arrest, Cichy discovered a bag containing a powdery substance, which Cichy believed was methamphetamine, in appellant's pants pocket.  He found more drugs and drug-making paraphernalia in appellant's vehicle.

Appellant was charged with controlled substance crimes in the first, second, and fifth degrees, two counts in the fourth degree, fleeing a peace officer in a motor vehicle, and driving after revocation.  Appellant entered into a plea agreement.  In exchange for the dismissal of most of the charges, appellant pleaded guilty to a controlled substance crime in the second degree, waived the application of the sentencing guidelines, and agreed to a 91-month sentence.  The prosecutor noted that, with appellant's criminal history score, the sentence was an upward departure for the second-degree controlled substance charge but a reduction from the sentence appellant faced for the first-degree charge.  Pursuant to the plea agreement, the district court sentenced appellant to 91 months in prison.

In October 2000, appellant petitioned forpostconvictionrelief, asking the court to resentence him within the sentencing guidelines.  At the January 2001 hearing, appellant testified that he agreed to the plea bargain because he had been told he was eligible for an alternative “boot camp” program. But when he applied, he was informed that he was ineligible for the program because of the fleeing-a-peace-officer charge on his record.[1]  Appellant's trial attorney confirmed that she and appellant had talked about the option of boot camp when discussing the plea agreement.  She acknowledged that she did not promise appellant that he would be accepted in the program.  The parties agreed that the boot-camp program was not mentioned on the record at the time of the plea or at the sentencing hearing.

Appellant also argued that State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996), which allows a defendant to relinquish his right to be sentenced under the guidelines, has been legislatively overruled.

The court denied appellant's motion, holding that appellant had “knowingly, intelligently, and voluntarily agreed” to the sentence when he pleaded guilty and that the agreement was “not based on a guarantee of participation in boot camp.”  This appeal followed.






Appellant argues that the district court erred by allowing the parties to waive application of the sentencing guidelines without specifying, in writing, substantial and compelling circumstances for a departure.

The sentencing guidelines were created to assure uniformity, proportionality, rationality, and predictability in sentencing.  See Minn. Stat. § 244.09, subd. 5(2) (2000). “The sentences provided in the Sentencing Guidelines Grid are presumed to be appropriate for every case.”  Minn. Sent. Guidelines 11.D.  But a court may impose an upward departure from the guidelines if the crime involves “substantial and compelling aggravating” factors.  Minn. Sent. Guidelines cmt. II.D.01.


When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.


Minn. Sent. Guidelines II.D; see also Minn. R. Crim. P. 37.17 (requiring district courts to provide written reasons justifying a departure).  The Minnesota SupremeCourt has held that defendants may “agree to a departure as part of a plea bargain with the prosecutor,” and in doing so, “may relinquish their right to be sentenced under the guidelines.”  State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996).  Thus, under Givens, appellant's agreement to the departure validates the sentence.

Appellant argues that Minn. Stat. § 244.09, subd. 5(2), amended in 1997, was a legislative attempt to overrule Givens.  The statute states in relevant part:


Although the sentencing guidelines are advisory to the district court, the court shall follow the procedures of the guidelines when it pronounces sentence in a proceeding to which the guidelines apply by operation of statute. Sentencing pursuant to the sentencing guidelines is not a right that accrues to a person convicted of a felony; it is a procedure based on state public policy to maintain uniformity, proportionality, rationality, and predictability in sentencing.


Minn. Stat. § 244.09, subd. 5(2) (emphases added).  Appellant contends that by using mandatory language in directing the courts to sentence under the guidelines, and stating that “[s]entencing pursuant to the sentencing guidelines is not a right,” the legislature intended to overrule  Givens. Id.

On July 10, 2001, this court decided a case addressing appellant's argument.  State v. Misquadace, 629 N.W.2d 487 (Minn. App. 2001) (Lansing, J. dissenting).  In Misquadace,the defendant agreed to depart from the sentencing guidelines.  Id. at 488­89. Except in regard to one of the charges, the only reason the district court gave for the upward departures was Misquadace's plea agreement.  Id. at 489-90.

Like appellant, Misquadace argued to this court that the 1997 amendment to section 244.09 constituted a legislative overruling of Givens.  The court discussed the 1997 amendment and Givens, ultimately deciding that “[w]e do not need to address that argument, which invites an exploration of the separation of governmental powers.”  Id. at 490.  Instead, it held that it need only analyze the case under the law as it stands and

under current statutorylaw, a sentencing court must support any departure from the presumptive sentence with substantial and compelling reasons and it is not sufficient that the defendant merely accede to the departure in a plea bargain.

Id. at 491.[2]

The doctrine of stare decisis directs this court to “adhere to former decisions in order that there might be stability in the law.”  Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn. 2000) (citing Naftalin v. King, 257 Minn. 498, 509, 102 N.W.2d 301, 308 (1960)). Although “stare decisis is not an inflexible rule of law but rather a policy of the law,” we do not find this a proper case to depart from the policy.  Johnson v. Chicago, Burlington & Quincy R.R. Co., 243 Minn. 58, 68, 66 N.W.2d 763, 770 (1954).

The procedural facts of this case are nearly identical to Misquadace. Appellant agreed to a departure from the sentencing guidelines in exchange for a plea agreement. The district court released its order March 5, 2001, four months before this court released the Misquadaceopinion, and properly followed the law as it stood at the time.  The district court, following Givens, allowed appellant to waive his rights under the sentencing guidelines without making findings to support the durational departure agreed to by the parties.  But Misquadaceholds that a defendant's agreement to depart from the presumptive sentence is insufficient to support a departure, therefore, we must remand.

Because we agree with appellant's first argument, we need not address appellant's alternative argument.


Appellant does not seek withdrawal of his plea; he seeks a reduction of his sentence to the presumptive guideline sentence of 78 months, a reformation of the plea agreement to which the law does not entitle him.  But 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 to withdraw plea or to “continue to be bound by the original plea agreement, as amended”).

Here, appellant's sentence was part of an “intricate plea agreement.”  Misquadace,629 N.W.2d at 491.  Modifying the sentence would, in effect, undo the plea agreement, allowing appellant to receive the benefit of the plea agreement—the dropping of multiple charges — while escaping the consequences he agreed to—an increase from the presumed sentence for the second-degree substance charge.

A court may impose a sentence for a term up to the length determined in the plea agreement if the sentence is lawfully supported by the record and the court recorded the reasons on the record. State v. Pieri, 461 N.W.2d 398, 401 (Minn. App. 1990). We therefore remand to allow the district court to resentence appellant and provide written reasons for the upward durational departure.  Only if the district court were to resentence appellant to a sentence longer than the agreed-on 91 months would appellant be entitled to withdraw his guilty plea.  See Perkins v. State, 559 N.W.2d 678, 687 (Minn. 1997).

Reversed and remanded.


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] “Boot camp” refers to the Challenge Incarceration Program which allows some prisoners the option of early release. See Minn. Stat. §§ 244.17-.173 (2000).

[2]  In her dissent, Judge Lansing disagreed with the majority that Minn. Stat. § 244.09, subd. 5, overrules Givens  and argued that, under IgivensI, a defendnat’s agreement to a sentence outside of the guidelines is an adequate reason for a departure.  Misquadace, 629 N.W.2d at 492-93.