This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,






Luis Raul Cervantes,




Filed October 28, 2003


Toussaint, Chief Judge


Kandiyohi County District Court

File No. K3-02-824


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Boyd A. Beccue, Kandiyohi County Attorney, 415 Southwest Sixth Street, P.O. Box 697, Willmar, MN 56201 (for respondent)


John E. Mack, Mack & Daby, PA, 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Shumaker, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


            On appeal in this controlled-substance criminal proceeding, appellant argues that the sentencing court erred in refusing to allow him to withdraw his plea after a pre-sentence investigation revealed a prior controlled-substance felony, which changed the presumptive sentence from probation to a 27-month commitment to the Commissioner of Corrections. Because the record contains evidence supporting the sentencing court’s conclusion that the plea was not contingent on probation, we affirm.


On May 29, 2002, appellant Luis Raul Cervantes was arrested after a police officer found cocaine in Cervantes’s pocket and in the engine compartment of the vehicle he was driving.  Cervantes was subsequently charged with a first-degree controlled-substance crime (Minn. Stat. § 152.021, subd. 2(1)), providing a false name to police (Minn. Stat. § 609.506, subd. 1), and driving after cancellation (Minn. Stat. § 171.24, subd. 3).  

            Before trial, the parties reached a plea agreement, whereby Cervantes would plead guilty to a third-degree controlled-substance offense, and the prosecution would drop all remaining charges.  Specifically, the petition signed by Cervantes stated:

Defendant will plead guilty to a 3rd degree controlled substance violation.  He will be sentenced dispositionally under the guidelines, which call for a stay of execution of sentence.  He will agree to a durational departure of 36 months, which would be served on probation (less time served in the Kandiyohi County Jail).


At Cervantes’s plea hearing, the prosecution reiterated the plea agreement:

MR. INMAN: . . . The agreement that I believe we have today is the State would be amending Count I to Controlled Substance Violation in the Third Degree.  We would dismiss all other counts.  The defendant would be – The recommendation to the court, basically guideline sentence on that.  That it is anticipated that it would be a stay of execution as far as the prison time.  However, we would be asking for a durational departure for the stayed time to thirty-six months.  Other than the original guideline sentence, that would be the recommendation to the Court of the sentence. . .

THE COURT:  Does the defense agree?

MR. MACK:  Yes, Your Honor.

MR. GUERRERO: Yes, Your Honor.

THE COURT:  Mr. Cervantes, you have no obligation to plead guilty.  If you would rather have a trial you certainly are entitled to a trial.  Do you wish to accept the benefit of this agreement or would you rather proceed to trial on the original charges?

THE DEFENDANT: No, I am going to accept it, the plea.


The judge presiding at the plea hearing was substituting for the judge originally assigned to the case, who was absent at the time set for the hearing. 

A subsequent pre-sentence investigation revealed a prior felony conviction for possession and intent to distribute marijuana.  This revelation changed Cervantes’s presumptive sentence under the sentencing guidelines from probation, as discussed in the plea petition, to a 27-month commitment to the Commissioner of Corrections.  When the judge who presided at the plea hearing appeared reluctant to depart from the guideline sentence, Cervantes moved to be sentenced by the original judge assigned to the case.  The court granted his motion.

            Cervantes argued at sentencing that his plea was actually conditioned upon his receiving a stayed sentence, and that he should have been able to withdraw the plea upon discovery of the presumptive sentence.  The sentencing court rejected Cervantes’s argument, quoting the following interaction between Cervantes and his counsel at the plea hearing:

Q: You understand that the plea agreement in this case is that you will plead guilty to a Third Degree Controlled Substance violation as possession.  You will be sentences dispositionally under the guidelines, which calls for a stay of execution of sentence.  You agree, however, that the State can impose, and the Court can impose, a durational departure to thirty-six months  Ordinarily the sentence would be twenty-one months of probation, and that the thirty-six months of probation would be served on probation, less the time that you have spent in jail unless, of course, you should have a relapse.  Do you understand that?

A: Yes.


The sentencing court determined, based on this interaction, that “there was an understanding that [Cervantes] would be sentenced according to the guidelines.”  As such, the court sentenced Cervantes to 27 months in prison.  Cervantes now appeals.


In determining whether a plea agreement was violated, courts look to what the parties to the agreement reasonably understood to be its terms.  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).  This determination involves issues of fact to be resolved by the district court.  Id.  These factual findings will not be disturbed if supported by sufficient evidence.  Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979). 

            Here, the sentencing court determined that Cervantes’s plea was not contingent on his receiving a stayed sentence.  First, the court observed that there was no clear language in the parties’ agreement that the plea was conditioned on probation.  The court next examined the transcript of the plea hearing, and noted the parties’ understanding that Cervantes would receive a guideline sentence.  Finally, the court indicated that it was Cervantes’s failure “to apprise either the State or his own counsel of the true nature of his criminal history” that ultimately led to his sentence. 

There is ample evidence in the record to support the sentencing court’s determination.  The plea petition, which was signed by Cervantes, stated that he would be “sentenced dispositionally under the guidelines.”  At the plea hearing, the parties agreed that Cervantes would receive “basically guideline sentence,” and that probation was “anticipated.”  Neither the plea petition, nor any comment made during the plea hearing, made reference to probation being a specific condition of acceptance.  Further, the pre-sentence investigation shows Cervantes’s felony marijuana conviction in 1992, a crime for which he spent 18 months in prison.  In light of the petition’s language, the statements made during the plea hearing, and the evidence in the record, the sentencing court clearly did not abuse its discretion in rejecting Cervantes’s assertions and sentencing him according to the guidelines.

Cervantes argues, however, that State v. Kunshier, 410 N.W.2d 377, 379 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987), and State v. Tyksa, 448 N.W.2d 546 (Minn. App. 1989)should control here.  But a careful examination of these two cases reveals that they are readily distinguishable.  In Kunshier, the transcript of the plea hearing showed a clear, unqualified promise that the defendant was to receive a 54-month sentence.  Kunshier, 410 N.W.2d at 378.  Nonetheless, the district court imposed consecutive sentences greater than 54 months after the defendant was accused of improprieties between the plea hearing and sentencing.  Id.  After carefully examining the record, this court held that the district court abused its discretion by preventing the defendant from withdrawing his plea after the unqualified promise went unfulfilled.  Id.  In so holding, however, the court noted the distinction between an actual promise and defendants “trying to stretch an optimistic estimate” into such a promise.  Id. at 379.

Here, the record shows Cervantes’s petition, plea, and sentence were all based upon the parties’ estimates of the guidelines, and all references made to his impending sentence during the plea hearing referred to the guidelines as well.  Neither the sentencing court nor the state explicitly promised that Cervantes’s sentence would be stayed; the only promise Cervantes received was that his sentence would follow the guidelines (which, at the time of negotiation, appeared to presume a stayed sentence).  As such, when examining the entire record, the sentencing court properly construed the statements concerning probation as “optimistic estimates,” rather than unqualified promises. 

Tyska is even less controlling under the circumstances.  In Tyska, the district court departed from the guidelines after the parties agreed the defendant would be sentenced without any durational departures. Tyska, 448 N.W.2d at 548.  This court held that the district court’s upward departure was a clear rejection of the parties’ agreement.  Id. at 549.  We noted that “if the trial court rejects an agreement as to sentence, the defendant is entitled to withdraw his plea; but if the trial court rejects a recommendation made pursuant to an agreement, the defendant is not automatically entitled to withdraw the plea.”  Id.  

Here, the sentencing court determined that the parties agreed to a guidelines sentence, and accepted the terms of the agreement.  It is clear from the record that, in so determining, the court did not stray from these terms — that Cervantes’s original charges would be reduced to a third-degree controlled-substance offenses and that he would receive a guidelines sentence in exchange for a guilty plea.  This case, therefore, is unlike Tyska because Cervantes got what he bargained for.

The sentencing court did not abuse its discretion in determining that Cervantes’s plea agreement was not contingent on probation.  Considering the plea petition’s reference to the sentencing guidelines, its failure to clearly indicate that probation was a condition of acceptance, and the statements made at Cervantes’s plea hearing, there is adequate basis in the record to support Cervantes’s guidelines sentence.