This opinion will be unpublished and

may not be cited except as provided by

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






In re:

Sanctions Imposed in State of Minnesota, Plaintiff,

Patrick W. Flanagan,





Edward Walter Parker,



Filed ­­­January 25, 2005


Harten, Judge


Mower County District Court

File No. K6-03-162


Jeremy L. Clinefelter, Assistant Mower County Attorney, 201 First Street Northeast, Austin, MN 55912; and


Earl P. Gray, 332 Minnesota Street, Suite W-1610, St. Paul, MN 55101 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Harten, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant, a county attorney, challenges the district court’s imposition of a monetary sanction because he and his opposing counsel misinformed the district court about a defendant’s guilty plea.  Because we conclude that the district court committed errors of law and abused its discretion, we reverse.


Appellant Patrick Flanagan, Mower County Attorney, represented the State of Minnesota in its prosecution of Edward Parker, who was charged with one count of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(a) (2002), and one count of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subd. 1(a) (2002).  In July 2003, appellant wrote to Parker’s attorney offering to dismiss the count of first-degree criminal sexual conduct if Parker would plead guilty to the count of second-degree criminal sexual conduct.  Parker rejected this offer, maintaining his innocence, and the matter proceeded to trial.

After two and one-half days of jury trial, appellant and Parker’s attorney agreed that Parker could plead guilty to third-degree criminal sexual conduct, which both attorneys thought had a presumptive sentence of 21 months stayed.  On the same day, Parker pleaded guilty to “Criminal Sexual Conduct in the Third Degree, in violation of Minnesota Statute 609.344, subd. 1(c),” and the district court said, “I will accept the admission to 609.344, subd. 1(c).”      

            The following day, the district court received and filed Parker’s petition to enter a plea of guilty, signed by Parker and both attorneys, stating that Parker “will plead guilty to criminal sexual misconduct in the 3rd degree amended charges,” that the state would not object to the pre-sentence investigation (PSI) recommendation, and that Parker would not be bound by the recommendation.

            Within the next few days, appellant consulted the sentencing guidelines and discovered that the presumptive sentence for a violation of Minn. Stat. § 609.344, subd. 1(c) (2002), to which Parker had pleaded guilty, was not 21 months stayed but 48 months executed, and that 21 months stayed was actually the presumptive sentence for a violation of Minn. Stat. § 609.345, subd. 1(c) (2002), criminal sexual conduct in the fourth degree, and for criminal sexual conduct in the second degree.

Appellant informed Parker’s attorney that Parker had unknowingly pleaded guilty to a crime having a presumptive sentence of 48 months executed.  Parker’s attorney then wrote to the district court:

After putting in the guilty plea, the State and myself, have determined that what [we] had intended [Parker] to plead guilty to was a fourth degree criminal sexual conduct.  The conditions of the plea agreement and the factual basis will remain the same.  We will just have to make the record reflect that the parties intended Mr. Parker to plead guilty to fourth degree criminal sexual conduct pursuant to Minn. Stat. § 609.345, subd. 1(c).


            The factual basis provided to the court at the time of the plea satisfactually (sic) meets all the elements of such offense, and also reflects the meeting of the minds that the stayed sentence would be 21 months versus the third degree which would be a presumptive commit of 48 months.  We apologize for any inconvenience that this may have caused, and I would just suggest that we make the record reflect the plea agreement at the time of sentencing.  If the court is not satisfied with this remedy, I would ask that it be set for a hearing so all parties may be heard on this matter.


            The district court set a hearing, at which Parker was told that he could either proceed with his guilty plea to a violation of Minn. Stat. § 609.344, subd. 1(c) or withdraw his guilty plea and proceed to trial.  The district court also informed appellant and Parker’s attorney that, if the plea was withdrawn, the court would impose, a sanction on the attorneys, “the cost of that trial as far as witness fees and as far as jury fees, because we wasted not only that time, which will not be charged, but we wasted those costs and those expenses because that trial would have proceeded.”  Parker requested and was granted a couple of days to consider the matter.

            Two days later, at another hearing, Parker withdrew his guilty plea and the case was set for trial.[1]  The district court also sanctioned the attorneys, saying:

This Court was deceived.   This Court was not provided the full plea agreement that was offered to Mr. Parker, and I cannot accept any explanation that’s been given to me so far by these attorneys.


This conduct happened in my presence.  I don’t need to have a hearing.  I don’t need to have a trial.  I can go on the record that occurred in these proceedings. 


. . . .


. . . [T]his Defendant is being allowed to withdraw his plea of guilty because he was promised something by two attorneys that I knew nothing about, and I don’t fault this Defendant.  This Defendant has done nothing wrong.  The Conduct that is reprehensible to me in this matter is by the attorneys.


. . . .


I’ve also made a record of what happened when this plea was taken.  In front of these attorneys I sat there three separate times and I asked this Defendant, “Have there been any other promises or threats made to you to cause you to plead guilty today?”  The prosecutor didn’t say anything.  The defense attorney didn’t say anything, and the Defendant said, “No.”  Yet, he’d been promised not only by his attorney, but by [appellant], 21 months, no jail.


Appellant challenged the district court, saying that he had agreed to follow the PSI and that, if it recommended jail, “that’s what the State would be recommending.” 

            The district court then sanctioned the attorneys personally, splitting $237.25 for transcripts and $2,173.05 for jury costs between them and requiring appellant to pay the fees for witnesses he had called.  The district court then stated, “[I]f either counsel wishes to appeal that, they have the right to appeal it to the Appellate Court.  That’s up to them.  This Court is not going to entertain a motion for reconsideration.”[2]

Appellant, however, filed a motion for reconsideration with the district court on the same day he filed a notice of appeal with this court. The district court denied appellant’s motion a week later.  In the memorandum accompanying the denial, the district court for the first time referred to contempt and to Minn. Stat. § 588.11 (2002), saying that it had “sanctioned the attorneys for their conduct which occurred before it at the trial, plea hearing, and hearing for post-conviction relief.”[3]  



            A district court has broad discretion in deciding whether to invoke its contempt powers and its decision will be reversed only for an abuse of that discretion.  See Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996). 

            Two determinations must be made concerning contempt.  The first is whether the contempt is civil or criminal; the distinction relates to the district court’s purpose in responding to the misconduct.  State v. Garcia, 481 N.W.2d 133, 136 (Minn. App. 1992).  If the purpose is to vindicate the court’s authority by punishing past conduct with a penalty of fixed duration or amount, the contempt is criminal; if the purpose is to vindicate an opposing party’s rights by coercing future compliance with an order that imposes a penalty that will be lifted upon compliance, the contempt is civil.  Id.  The district court here said its sanctions were “remedial in nature,” but they were in fact punitive: the misconduct was past, the amount of the penalty was fixed, and no subsequent conduct of appellant could reduce or eliminate the sanctions.  Thus, the district court’s order was a criminal contempt order against counsel. 

But criminal contempt is defined as involving “conduct directed against the dignity and authority of the court.”  Id.  Appellant repeatedly assured the district court that he had no intention of offending its dignity or authority: he had simply made a mistake in referencing the statute to which Parker pleaded guilty, and the district court itself, in denying the motion for reconsideration, said appellant “mistakenly advised the Court at the time of the plea hearing that [Parker] intended to plead guilty to Criminal Sexual Conduct in the Third Degree.” (Emphasis added.)  “Mistakenly advis[ing]” a district court does not rise to the level of “conduct directed against [the court’s] dignity and authority.”  Id.  The district court abused its discretion by punishing a mistake by exercising its criminal contempt powers.

            In criminal contempt, the second determination is whether the contempt was direct or constructive.  Only direct contempt may be punished summarily. See Minn. Stat. § 588.03 (2002) (providing that direct contempt may be punished summarily); Garcia, 481 N.W.2d at 138 (constructive contempt may be punished only after it has been “proved up just like any other crime”).  By punishing appellant summarily, the district court implicitly labeled his contempt as direct. 

            But direct contempt must occur in the immediate view and presence of the court and generally involves two kinds of conduct:

            (1) Disorderly, contemptuous, or insolent behavior toward the judge while holding court, tending to interrupt the due course of a trial or other judicial proceedings;


            (2) A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the business of the court.


Minn. Stat. § 588.01, subd. 2 (2002).  The district court made no finding of any act by appellant that fits the statutory definitions of direct contempt.  Even if appellant had intentionally deceived the court, proof of that deception would have gone beyond what the district court observed in the courtroom, and the contempt would have been constructive, rather than direct.  See Garcia, 481 N.W.2d at 137-38 (because trial court did not know statements were false at the time they were made, contempt did not occur in the immediate view and presence of the court).  Assuming that constructive criminal contempt were appropriate, appellant and Parker’s attorney would have been entitled to, among other things, a complaint and trial.  See id. at 137. 

            Suffice it to say that, by finding appellant as guilty of direct criminal contempt and summarily imposing a monetary sanction, the district court committed errors of law and abused its discretion.  We reverse and vacate the monetary sanctions imposed by the district court and we direct that the monies paid as sanctions shall forthwith be returned by whatever public office received the monies.


[1] Parker later pleaded guilty to second-degree criminal sexual conduct, with a presumptive sentence of 21 months stayed; the count of first-degree criminal sexual conduct was dismissed.

[2] Parker’s attorney did not appeal.

[3] Although the denial of the motion for reconsideration was issued after the notice of appeal was filed and no appeal from the denial was filed, we review the denial pursuant to Minn. R. Civ. App. P. 103.04 (permitting review of any matter “as the interest of justice may require.”