This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Vernon Dale Howard,



Filed February 10, 2004

Reversed and remanded

Lansing, Judge


Itasca County District Court

File No. K7-02-1593



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


John J. Muhar, Itasca County Attorney, Heidi Marie Chandler, Assistant County Attorney, Itasca County Courthouse, 123 Northeast Fourth Street, Grand Rapids, Minnesota 55744 (for respondent)


John M. Stuart, State Public Defender, Leslie Joan Rosenberg, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Wright, Judge, and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N


In a postconviction appeal from the denial of his presentence motion to withdraw his guilty plea to third-degree assault, Vernon Howard asserts three separate grounds for the plea’s invalidity:  that the plea is unintelligent or involuntary because it is based on a mutual mistake in both his criminal-history score and the offense-severity level, that the plea agreement impermissibly incorporated an upward durational departure unsupported by aggravating circumstances, and that the terms of the agreement were not honored in his sentence.  We agree that the plea is invalid because Howard and the state were mistaken on Howard’s criminal-history score and the offense-severity level and, accordingly, reverse and remand for withdrawal of the plea.



Vernon Howard and the state negotiated a plea agreement for Howard’s charge of third-degree assault under Minn. Stat. § 609.223, subd. 1 (2002).  The agreement, stated at the September 2002 plea hearing, provided that in exchange for Howard’s guilty plea, he would receive a sixty-six month sentence, stayed for five years on specified conditions, including a one-year jail term.  The plea agreement was based on the understanding of both defense and prosecution that Howard’s criminal-history score of three and the offense-severity level of five would yield a presumptive guidelines sentence of thirty-three months, executed.

The discussion at the plea hearing focused on whether Howard might be able to resolve the assault charge and two other pending charges by serving a jail sentence, which would allow work release, rather than a prison sentence, which would not.  The district court cautioned that the plea agreement on this offense would not control the outcome on the other offenses, accepted the plea agreement, continued the case for sentencing, and reminded the attorneys that the upward durational departure—from thirty-three to sixty-six months—must be supported by substantial and compelling circumstances.  The prosecutor agreed to prepare a memorandum setting forth the reasons for departure, but the memorandum was never prepared.

Before sentencing, Howard moved to withdraw his guilty plea.  In his affidavit supporting the motion, Howard stated that the department of corrections would not approve an arrangement that would allow work release, that he was not guilty of the assault, and that he had not been given sufficient time to consider the plea agreement.

While the plea-withdrawal hearing was pending, the state and Howard discovered that the thirty-three-month-executed presumptive sentence that was the underlying assumption in the plea agreement was inaccurate because the third-degree assault was a level-four rather than a level-five offense.  According to the presentence investigation report, the correct calculation yielded a presumptive stayed sentence of twenty-one months.  At the plea-withdrawal hearing, in recognition of the error, the prosecutor stated that she was withdrawing the earlier offer because it had no basis, and her “offer to [Howard] at this point would be . . . a stay of execution for a period of five years with 90 days in jail.”  When Howard’s attorney asked whether this was a new plea agreement, the court responded, “No . . . it would be the same plea . . . [but] the proposed plea agreement as to the sentence would be different.”  The court stated the plea agreement as “a stay of execution 21 months with five years of supervised probation.”

Howard’s attorney inquired whether Howard was still asking to withdraw his plea in light of the prosecutor’s “amended” recommendation of twenty-one months, stayed, with ninety days in jail.  Howard responded, “Yes, I am.”  Howard testified that his motivation for the plea agreement was his belief that his attorney could package his pending charges in a way that would allow him to retain his job on work release.  Howard said that he wanted to withdraw his plea and “have this matter set for trial.”

The district court denied Howard’s motion to withdraw his guilty plea, and the case was again continued for sentencing.  During this continuance, the department of corrections filed an amended presentence investigation report stating that Howard’s criminal history score was two rather than three.

The corrected offense-severity level (from five to four) and the corrected criminal-history score (from three to two) resulted in a presumptive guidelines sentence of eighteen months, stayed.  Three days before sentencing, a sentencing worksheet was filed that stated Howard’s offense-severity level as four and his criminal-history score as two.  The presumptive sentence was a “stay,” and the presumptive duration was “18 months.”

At the sentencing hearing, Howard indicated his intention to appeal the denial of his plea-withdrawal motion, saying that when he agreed to plead guilty the state had an “inappropriate sentence with the wrong severity level, the wrong amount of time on the sentence” and that the recommended sentence is now “totally different.”  The district court committed Howard to the custody of the commissioner of corrections for a total of eighteen months.  The court ordered that twelve months be served in prison and that six months be served on supervised release.  The court stayed execution for five years on supervised probation with specified conditions.  In this postconviction appeal, Howard challenges the denial of his motion to withdraw his guilty plea.


Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  But when necessary to correct a manifest injustice, “[t]he court shall allow a defendant to withdraw a plea of guilty.”  Minn. R. Crim. P. 15.05, subd. 1.  Involuntariness of a guilty plea is a manifest injustice that entitles a defendant to withdraw his guilty plea.  State v. Danh, 516 N.W.2d 539, 544 (Minn. 1994).  Plea agreements “presuppose fairness in securing agreement between an accused and a prosecutor,” and unfulfilled inducements provide a basis for vacating a plea.  Santobello v. New York, 404 U.S. 257, 261 (1971), 92 S. Ct. 495, 498; State v. DeZeler, 427 N.W.2d 231, 235 (Minn. 1988).  Minnesota courts have held that a mutual mistake as to a criminal-history score provides a sufficient ground to withdraw a guilty plea and allow a defendant to go to trial.  DeZeler, 427 N.W.2d at 235; State v. Benson, 330 N.W.2d 879, 880 (Minn. 1983).

Howard pleaded guilty based on an understanding, stated at the plea hearing, that the presumptive sentence for his third-degree assault charge was an executed thirty-three-month prison sentence.  The transcript demonstrates that this misunderstanding was shared by the prosecutor and the district court.  The transcripts from the plea hearing and the motion hearing establish that the basis for Howard’s negotiated plea was to avoid the risk of a prison sentence that would prevent him from continuing to work at his job at Leech Lake Gaming.  At the plea hearing, Howard’s attorney specifically stated that a defendant’s agreement to a double upward departure is unusual and was being done to assure that Howard would only have to do “local jail time” during which Howard could obtain a work release.

The negotiated plea, however, was based on two mutual mistakes:  that the offense-severity level was five and that Howard’s criminal-history score was three.  The offense-severity level was actually four and Howard’s criminal-history score was two.  These mutual mistakes led to the fundamental misunderstanding that if Howard went to trial and were found guilty he would be sentenced based on a presumptive guidelines sentence of thirty-three months, executed.  The actual presumptive guidelines sentence for third-degree assault, a level four offense, with a criminal-history score of two was a stayed sentence of eighteen months.  See Minn. Sent. Guidelines IV.

In declining to allow Howard to withdraw his guilty plea, the district court reasoned that Howard’s plea was based on his hope to resolve all of his pending charges in a way that would allow him to avoid imprisonment and continue his employment.  The court concluded that Howard’s inability to resolve his charges was a collateral issue that did not affect the accuracy, voluntariness, or intelligence of the plea.  But that analysis overlooks the threshold impediment that Howard believed that he faced:  a presumptive commitment for thirty-three months if he were found guilty of the assault charge.  He agreed to enter a plea of guilty and accept a double upward durational departure to obtain a stay of the assault sentence and eliminate the risk that he would have to serve thirty-three months in prison if found guilty.  Thus his plea was founded on incorrect information as to the actual presumptive sentence.  See Kim, 434 N.W.2d at 266 (distinguishing between plea withdrawal based on mutual mistake as to a material fact and plea withdrawal because of unknown collateral consequences of the plea).

A plea that is induced by a mistaken belief as to the length of a sentence defeats the voluntariness requirement.  See State v. Jumping Eagle, 620 N.W.2d 42, 44 (Minn. 2000) (invalidating sentence based on plea agreement induced by incorrect belief of maximum sentence).  The voluntariness requirement ensures that a defendant does not plead guilty because of improper inducements.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  As the supreme court said in DeZeler, “if [defense counsel] had known the correct criminal history score, he would have negotiated a different agreement.”  DeZeler, 427 N.W.2d at 235.  The error in Howard’s case is even more central.  If he had known the correct guidelines presumptive sentence, he would not have had the inducement to enter any plea agreement and could have gone to trial.  The rule that a plea must be intelligently made to be valid does not require that the defendant correctly assess every relevant factor entering into his decision.  Brady v. United States, 397 U.S. 742, 757, 90 S. Ct. 1463, 1473 (1970).  But a plea based on misrepresentation of the current-applicable law is vulnerable as involuntary.  Id.

Although the Minnesota cases dealing with mutual mistake are somewhat different from Howard’s circumstances, the rationale is the same:  the plea of guilty is based on a material mutual mistake of fact that provided a foundation for the plea agreement.  See State v. Thomas, No. C3-96-1173, 1997 WL20348 (Minn. Jan. 14, 1997) (mem.) (mutual mistake on nature of agreement requires that defendant be allowed to withdraw plea); DeZeler, 427 N.W.2d at 235 (mutual mistake on criminal-history score requires court to allow plea withdrawal); Benson, 330 N.W.2d at 880 (mutual mistake on criminal-history score was ground for letting defendant withdraw plea and stand trial).

The state argues that because the district court corrected any sentencing error by imposing a lesser sentence than that contemplated under the original plea, Howard was not prejudiced by the mistake.  The district court attempted to “correct” the sentence based on the information that the presumptive sentence was eighteen-months, stayed, rather than thirty-three months, executed.  But this attempt to modify ignored Howard’s fundamental objection that if he had known the presumptive sentence was a stayed sentence rather than an executed sentence, he would have had no incentive to plead guilty in order to avoid an executed prison sentence and would have proceeded to trial.

Because we reverse the district court’s denial of Howard’s motion to withdraw his plea on the grounds of mutual mistake, we need not reach Howard’s remaining challenges to the plea, including his claim of ineffective assistance of counsel.

            Reversed and remanded.

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