This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Erwin Lanell Lewis,



Filed June 11, 2002

Affirmed and remanded

Randall, Judge

Concurring specially, Lansing, Judge


Beltrami County District Court

File No. K5-00-2120


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


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


Timothy R. Favor, Beltrami County Attorney, Judicial Center Annex, 619 Beltrami Avenue NW, Bemidji, MN 56601-3066 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

            Lewis appeals his sentencing on a conviction for second-degree criminal sexual conduct, alleging that the 86-month stayed sentence cannot be supported solely by the plea agreement; and further argues that the facts do not support a quadruple upward departure.


            Appellant, Erwin Lewis was charged on December 13, 2000, in Beltrami County district court with one count first-degree criminal sexual conduct.  In May 2000, S.R. and her parents went to the Bemidji law enforcement center.  S.R. reported that five years earlier, when she was 12 years old, appellant touched her with her clothes on and that appellant removed his clothes and attempted to engage in sexual intercourse.  S. R. also stated that a few days after Christmas she baby-sat at appellant's house where he engaged in oral and vaginal intercourse. 

            After plea negotiations, appellant and the prosecutor entered into a plea agreement, where appellant would plead guilty to second-degree criminal sexual conduct and accept an 86-month stayed sentence with the state dropping the charge of first-degree criminal sexual conduct.  The defendant and counsel entered into that plea with the state and presented it to the district court.  The district court accepted the proposed plea agreement and imposed the negotiated stayed 86-month sentence.  The court's explanation for the upward departure was the plea agreement. 

The plea agreement was on June 20, 2001.  Approximately four weeks later, on July 16, 2001, appellant filed a motion to withdraw his guilty plea.  The district court denied appellant's motion stating appellant "hasn't presented any evidence that his plea was not voluntary."  The district court further stated that there were no reasons that "justify [], under the fair and just standard, as well as the manifest injustice standard, to grant the request and withdraw the guilty plea."

            The district court sentenced appellant to a stayed 86-month sentence, with appellant to serve seven months in jail with Huber release privileges.  The district court rejected a recommendation for a more limited probationary period because appellant's "absolute denial of responsibility for [the] act." 


            Appellant challenges the district court's imposition of an 86-month sentence for second-degree criminal sexual conduct, arguing that the sentence is more than four times the presumptive sentence.  Appellant asserts that the district court abused its discretion by imposing an exaggerated sentence, claiming the sentence was not proportional to the level of culpability for his offense.  Respondent maintains that the extent of a sentencing departure imposed pursuant to a plea agreement is not limited.  Respondent asserts, correctly, that appellant was sentenced pursuant to a plea agreement that he and his attorney voluntarily entered into.  Respondent argues that if the plea agreement is intelligent and voluntary, a defendant can bargain for a guaranteed sentence even though it is outside the normal Minnesota Sentencing Guidelines.

            Up until today, a voluntary plea agreement accepted by a judge could form the basis for a departure.  "[C]ourts will honor a defendant's lawful, "intentional relinquishment or abandonment of a known right or privilege * * * [a]ccordingly * * * defendants may relinquish their right to be sentenced under the guidelines."  State v. Givens, 544 N.W.2d at 777 (Minn. 1996) (citations omitted).

            The record shows that appellant wanted to bargain for a stayed sentence, even though it meant 86 months on probation, rather than 21.  Appellant agreed to that bargain to avoid facing trial on the charge of first-degree criminal sexual conduct for which conviction carries a presumptive prison term of 86 months.  Appellant wanted the charge reduced from first-degree criminal sexual conduct to second-degree criminal sexual conduct and a guarantee that he would have a lengthy probation period only, and would avoid the possibility of a lengthy prison term.  Both parties bargained in good faith, and the trial court accepted the plea agreement and imposed the negotiated sentence.

            On May 9, 2002, the Minnesota Supreme Court released State v. Misquadace, ___ N.W.2d ___ (Minn. May 9, 2002) and analyzed the same issue -- can a defendant, who has voluntarily plea bargained for a fixed sentence outside the Minnesota Sentencing Guidelines, come back and appeal the sentence but not have to withdraw completely from the plea agreement and not stand trial on all the original charges, including those that may have been dropped as part of the plea agreement?  We can only read Misquadace to say that that is so.

            "Affirmed and remanded to the district court for further proceedings in accordance with this opinion."  Misquadace, ___ N.W.2d at ____, 2002 WL 9626950, at *7 (Minn. May 9, 2002).

            Misquadace, like appellant in our case, filed a motion in district court to withdraw his guilty plea.  In Misquadace, as in this case, the district court denied the motion to withdraw the guilty plea and proceeded with sentencing.  

            In the Minnesota Court of Appeals' Misquadace decision, we reversed only on Misquadace's sentence and remanded the case for resentencing under the guidelines.  See State v. Misquadace, 629 N.W.2d 487 (Minn. App. 2001), review granted (Sep. 25, 2001).  In other words, this court remanded only for resentencing and did not reverse the district court's denial of Misquadace's motion to withdraw his guilty plea.  Id.  A reversal would have meant that Misquadace would have been allowed to withdraw his guilty plea, re-enter a plea of not guilty on all charges, and stand trial on all the original charges, including murder in the first degree.  The Minnesota Supreme Court accepted the state's petition for review on this court's Misquadace, affirmed this court by unanimous decision, and remanded Misquadace to the district court solely for the purpose of resentencing on the plea agreement's reduced charges.   That is the only way Misquadace can be read.  Thus, we do the same.  We affirm appellant's conviction for criminal sexual conduct in the second degree and remand only for resentencing pursuant to the Minnesota Sentencing Guidelines.  

            It is possible that on remand the state may argue that when the supreme court upsets a plea bargain, it is no different than when the defense attorney and the prosecutor come to the district court with a proposed plea agreement which the district court rejects.  In that instance, both parties, defendant and the state, are back to square one.  The state can continue to negotiate or take the position that it will only accept an open plea of guilty to the original charge, and if the defendant does not want to do that the defendant can exercise his unqualified right to a jury trial on all charges.  For the defendant and his criminal defense attorney, square one means that the defense can continue to negotiate in the hopes of reaching a plea agreement that the district court will accept, or, if no suitable plea negotiations are forthcoming from the state, simply call the negotiating process off and demand that unqualified right to stand trial on all the original charges.  However, as stated above, Misquadace left open only sentencing on remand.  That is what we do. 

            To give guidance to the sentencing court on remand, it is clear that the original offense of criminal sexual conduct in the first degree cannot form the basis for any possible upward departure.

The reasons for a departure, while nonexclusive, are intended to apply to a small number of cases, and each departure must be based on the offense of conviction rather than charges that were dropped or never alleged.  Minnesota Sentencing Guidelines II.D.2, II.A.01 cmt., and II.D.01 cmt.

Misquadace, ___N.W.2d at ___. 2002 WL 926950 at *3 (Minn. May 9, 2002) (citation omitted).

            Misquadace further stated:

The question presented to the sentencing court when considering a departure is whether the defendant's conduct in the offense of conviction was significantly more or less serious than that typically involved in the commission of the crime in question.




            We point out that a sentencing court "has discretion to depart only if aggravating or mitigating circumstances are present."  State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).

            It would appear from this record that, on resentencing, this case is controlled by State v. Evans, 311 N.W.2d 481 (Minn. 1981), which generally limits upward departures to double the presumptive sentence absent those "rare cases in which the facts are so unusually compelling that an even greater degree of departure will be justified."  Evans, 311 N.W.2d at 483.

            An examination of the record before us shows nothing untypical or egregious about the facts.  The age of the victim, the touching and the sexual intercourse are part of the elements of the crime. See Minn. Stat. § 609.343 subd.1 (a) (A person who engages in sexual contact with another person is guilty of criminal conduct in the second degree if the complainant is under 13 years of age and the actor is more than 36 months older than the complainant).  At the time of the criminal acts alleged, the victim was 12 and appellant was 31.  There are no facts in the record showing anything remotely near the egregious facts and aggravating circumstances of those cases involving multiple upward departures over double.  See State v. Mesich, 396 N.W.2d 46 (Minn. App. 1986)  (sustained beatings, torture, threats of mutilation, stab wounds, insertion of the tip of a knife into victim's vagina); State v. Wellman, 341 N.W.2d 561 (Minn. 1983) (hitting, twisting and breaking of a small child's nose, arm and leg), review denied (Minn. Nov. 10, 1987); State v. Stumm, 312 N.W.2d 248 (Minn. 1981) (striking small child repeatedly, lacerating intestine and causing death); Rairdon v. State, 557 N.W.2d 318 (Minn. 1996) (multiple acts of sexual abuse of a small child over a number of years, death of the child).

            If the sentencing court can find facts in the record to justify an upward departure, the court should set them out clearly and articulate why this case contains facts untypical of criminal sexual conduct in the second degree.  In any event, the sentencing court should be guided by the limiting instructions of Evans.  Evans, 311 N.W.2d at 483.

            Upon remand the State may argue that the acts for which appellant was charged were committed in the mid 1990's, and appellant's conviction was in July of 2001; and thus, Misquadace does not apply because the conviction predated the release of Misquadace by close to a year.  The State might point to the words of Misquadace indicating that "retroactive application is not required," and "prospective application is appropriate."  However, in discussing State v. Olson, 258 N.W.2d 898, 907 n.15 (Minn. 1977), the Misquadace Court stated "We limit application of the ruling to this case and to pending and future cases."  Misquadace, ___ N.W.2d at ___, 2002 WL 926950 at *6 (Minn. May 9, 2002).  Thus, we apply Misquadace to this case.  When an appellate tribunal uses the word "pending," by definition, the ruling has to apply to cases where the facts and the underlying procedural posture predate the issuance of the case setting the new standard.  If pure prospective application is the only intention, that is denoted by the simple phrase articulating "the present case and only future cases."  Instead, the Misquadace court specifically referred to "the present case, future cases and pending cases."  The word "pending" is not unclear. Thus, we construe "pending" to include appellant.

            Affirmed and remanded to the district court for resentencing in accordance with this opinion.



LANSING, Judge (concurring)

            I concur in the majority’s analysis that under the holding of State v. Misquadace, ___ N.W.2d ___ (Minn. May 9, 2002) this case must be remanded to the district court for further proceedings.


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