This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1455

 

State of Minnesota,

Respondent,

 

vs.

 

Mario F. Mancini,

Appellant.

 

Filed July 27, 2004

Affirmed

Willis, Judge

 

Ramsey County District Court

File Nos. K0-02-4361 and K2-02-4314

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney,

50 West Kellogg Boulevard, Suite 315, St. Paul, MN† 55102 (for respondent)

 

John M. Stuart, State Public Defender,† James R. Peterson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN† 55414 (for appellant)

 

††††††††††† Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.


U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

††††††††††† Requesting modification of his sentence, appellant argues that the district court erred by sentencing him to a consecutive presumptive-minimum sentence on his second-degree criminal-sexual-conduct conviction and that the sentence imposed was contrary to his understanding of the sentence that he would receive under his plea agreement.† Because appellant does not appeal from the district courtís denial of his request for withdrawal of his guilty plea, which is the first option to be considered when a plea agreement is breached, and we conclude that he is not entitled to modification of his sentence, we affirm.

FACTS

††††††††††† On November 25, 2002, appellant Mario Mancini was charged with third-degree criminal sexual conduct involving his 15-year-old niece (File K2-02-4314), in violation of Minn. Stat. ß 609.344, subd. 1(c) (2002); this charge was later amended to second-degree criminal sexual conduct, in violation of Minn. Stat. ß 609.343, subd. 1(h)(iii) (2002).† On November 27, Mancini was charged with third-degree criminal sexual conduct involving another 15-year-old female (File K0-02-4361), in violation of Minn. Stat. ß 609.344, subd. 1(b) (2002).† Mancini was also charged with another count of third-degree criminal sexual conduct (File K7-03-298) although it is not clear from the record when he was charged or who the alleged victim was.† When these charges were brought against him, Mancini was on probation for a 1992 criminal-sexual-conduct conviction.

††††††††††† At the plea hearing on March 25, 2003, Manciniís counsel stated that the plea agreement reflected that (1) Mancini would plead guilty to File K0-02-4361, one of the third-degree charges, and the sentence on this file would run concurrently with his sentence for his probation violation, (2) Mancini would plead guilty to File K2-02-4314, the second-degree charge, and the sentence on this file would run consecutively to the first two sentences, and (3) the state would agree to dismiss File K7-03-298, and a separate case of child pornography would not be charged.† Manciniís plea petitions on the two files also reflect this agreement.† The length of Manciniís sentences, however, was not discussed during the plea hearing and is not referred to in his plea petitions.† Mancini then pleaded guilty.

††††††††††† On July 1, 2003, Mancini filed a motion to withdraw his guilty plea.† At the sentencing hearing on July 2, 2003, Mancini argued in support of his motion that a county law-enforcement investigator who had given her investigative file to federal authorities two days after Manciniís guilty plea had attempted to manipulate the case so that Mancini would be prosecuted to the fullest extent by the federal authorities after he had entered his guilty plea.† The district court denied the motion to withdraw the plea.† The presentence-investigation report (PSI) was then discussed.† When it became apparent that the district court intended to follow the PSIís recommendation of a sentence of 38 months on the third-degree count and a consecutive presumptive-minimum sentence of 90 months on the second-degree count, Mancini again attempted to withdraw his guilty plea, claiming that he thought that his sentence would be calculated differently.† He claims that he thought he would receive either (1) consecutive sentences totaling 86 months that would consist of a guidelines sentence of 38 months on the third-degree conviction and a guidelines sentence of 48 months on the second-degree conviction or (2) concurrent sentences totaling 90 months that would consist of a guidelines sentence of 38 months on the third-degree conviction to run concurrently with a sentence of the 90-month presumptive minimum on the second-degree conviction.†

The district court denied Manciniís motion and sentenced him to 38 months on the conviction of third-degree criminal sexual conduct, to run concurrently with his incarceration for the probation violation, and to a consecutive 90-month sentence on the conviction of second-degree criminal sexual conduct.† This direct appeal follows.

 

D E C I S I O N

Mancini argues that this court should modify his sentence to comport with his plea agreement.† An appellate court will not interfere with the district courtís decision regarding sentencing unless there has been a clear abuse of discretion.† State v. Lundberg, 575 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. May 20, 1998).† Because Mancini asserts that his sentence was contrary to his understanding of the sentence contemplated by the plea agreement, his argument should be that the district court erred by denying his motion to withdraw his guilty plea.† See State v. Wukawitz, 662 N.W.2d 517, 527 (Minn. 2003) (stating that withdrawal of a guilty plea is the first option that must be considered for breach of a plea agreement); State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (determining that defendant who entered into plea agreement that failed to include statutorily mandated conditional-release term could not obtain specific performance of original sentence but could withdraw guilty plea or accept agreed-on sentence, as amended to include conditional-release term).† But Mancini specifically states that he ďis not appealing the denial of the motion to withdraw the guilty plea.Ē† We conclude that he is not entitled to modification of his sentence.

Mancini argues that the sentence imposed was unreasonable and inappropriate because it was contrary to his understanding that under the plea agreement he would receive either consecutive sentences totaling 86 months or concurrent sentences totaling 90 months.His argument is not supported by the record.† The length of Manciniís sentences was not discussed during the plea hearing and is not referred to in his plea petitions, and the sentencing judge expressly told Mancini at the plea hearing that the court had the option of sentencing him consecutively.†

††††††††††† Mancini further contends that the district court incorrectly believed that it was compelled to impose the 90-month sentence consecutively to the 38-month sentence.† But although Minn. Stat. ß 609.343, subd. 2(b), does not require a consecutive sentence, the sentencing guidelines provide that consecutive sentencing is permissive when, as here, there are multiple victims of a crime against the person.† See Minn. Sent. Guidelines II.F.† And the district court expressly recognized when sentencing that consecutive sentencing was permissive, not obligatory.† Manciniís argument that the district court unfairly exaggerated the criminality of his conduct by imposing a consecutive 90-month sentence is also without merit.† When more than one person is the victim of criminal sexual conduct, consecutive sentencing may be appropriate to recognize the severity of each instance of criminal behavior.† State v. Cermak, 442 N.W.2d 822, 824 (Minn. App. 1989).†

Mancini also argues that even though his sentence may be technically permissible, it should be modified in the interest of fairness.† See Neal v. State, 658 N.W.2d 536, 546 (Minn. 2003).† But we conclude that Manciniís sentence was not unfair; his sentence followed the sentencing guidelines, and, further, the plea agreement provided Mancini with a significant ďbargained-for benefitĒ:† one charge of third-degree criminal sexual conduct was dismissed, the state agreed not to charge him with possession of child pornography, and the plea agreement prevented the state from prosecuting him for first-degree criminal sexual conduct.

††††††††††† Affirmed.

†††††††††††