This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Kevin Todd Swanson, petitioner,


State of Minnesota,


Filed May 30, 2006

Reversed and remanded

Stoneburner, Judge


Anoka County District Court

File No. K2998786


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


Robert M.A. Johnson, Anoka County Attorney, Kristin C. Larson, Assistant County Attorney, Anoka County Government Center, Seventh Floor, 2100 Third Avenue, Anoka, MN 55303 (for respondent)


John M. Stuart, Minnesota Public Defender, Cathryn Middlebrook, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Wright, Judge; and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges the denial of his motion to correct a 2000 sentence, arguing that he was erroneously assigned the presumptive sentence for a higher severity level of kidnapping than the charge to which he pleaded guilty and that he did not waive his right to a guidelines sentence in his plea agreement.  Because we conclude that the plea agreement was based on a mutual mistake regarding the presumptive sentence for appellant’s kidnapping charge, we reverse and remand with instructions that the district court shall permit appellant to withdraw his plea.



            In October 1999, appellant Kevin Todd Swanson abducted and sexually molested a minor child.  Swanson was charged with one count of kidnapping under Minn. Stat. § 609.25, subd. 1(2), 2(2) (1998) (Count I); first-degree burglary under Minn. Stat. § 609.582, subd. 1(c) (1998) (Count II); second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(c) (1998) (Count III); and second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (1998) (Count IV).

            Swanson agreed to plead guilty to Counts I and III under a plea agreement, the relevant part of which was placed on the record as follows:

[Counsel for the state]: The first count – kidnapping – is a level 8 offense.  And the sentence on that will be 81 months.  The defendant will also be pleading guilty to Count III – criminal sexual conduct in the second degree.  That is a level 7 offense.  That will be sentenced consecutively.  And the consecutive sentence is 44 months for a total of 125 months.  At sentencing, the remaining counts would be dismissed.

. . . .

Also, it’s my understanding that . . . although the guidelines would allow this to be consecutive . . . the Defendant is also agreeing that that should be the sentence and understands that he’s agreeing to a consecutive sentence for a total of 125 months.

            That there should be no misconception about the fact that he’s getting a benefit.  And that any confusion over the amount of time or the terms of his sentence or the potential sentence, given the mandated five-year release period, any of those provisions would not be a basis to request a withdrawal of the plea from the Court.

            . . . .

            [Counsel for Swanson]: Your honor, that is our understanding. . . . I have explained the guidelines range. . . . And I have certainly told him that on the facts of this case it’s quite likely that a double upward departure may be imposed at the State’s request. . . . Based on that, he has signed a . . . Petition to Enter Pleas of Guilty as outlined by the State.

            . . . .

            [Court]: I’m looking at the disclosure of the plea negotiation.  It says a joint recommendation of the bottom of the sentencing guidelines box range of 125 months.  You understand that?

            [Appellant]: Yes.

                                    [Court]: All right.  I will receive the Petition.

At sentencing, Swanson was committed to the commissioner of corrections for 81 months on the kidnapping charge and a consecutive 44 months on the sexual-assault charge, for a total of 125 months.  The district court, without objection from either party, characterized the sentence as a departure from the guidelines and stated two grounds for the departure: (1) the plea agreement “allowing for a consecutive sentence,” and (2) violation of the victim’s zone of privacy.[1]

            On May 2, 2005, Swanson moved to reduce the kidnapping sentence, arguing that the charge to which he pleaded guilty did not involve great bodily harm and was a level-seven offense, for which the presumptive “bottom of the box” sentence is 44 months rather than the 81 months imposed.  The state admitted that there was an error in the severity level of the kidnapping charge that resulted in an error in the presumptive sentence for that charge, but argued that Swanson specifically agreed to a 125-month sentence and received the benefit of his bargain, and therefore his motion should be denied.  The district court denied Swanson’s motion without a hearing, concluding that the erroneous severity level of the kidnapping charge was immaterial because the agreement to 125 months controlled the sentence.  This appeal followed.



            Swanson argues that the district court abused its discretion by denying his motion to amend his sentence because his plea agreement was based on receiving a guidelines sentence, and the parties mistakenly calculated his kidnapping offense as severity-level eight when it should have been severity-level seven.  An appeal from an order denying a motion for sentence correction may be treated as an appeal from denial of postconviction relief.  State v. Stutleberg, 435 N.W.2d 632, 635 (Minn. App. 1989).  Motions for sentence correction are committed to the district court’s discretion and will be reversed only when discretion is not properly exercised and the sentence is unauthorized by law.  State v. Cook, 617 N.W.2d 417, 419 (Minn. App. 2000), review denied (Minn. Nov. 21, 2000).  “Determining what the parties agreed to in a plea bargain is a factual inquiry for the postconviction court to resolve.”  State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004), cert. denied, 543 U.S. 882 (2004).  “But interpretation and enforcement of plea agreements involve issues of law that we review de novo.”  Id.

Swanson based his motion for modification on Minn. R. Crim. P. 27.03, subds. 8 and 9.  Courts may modify a sentence under Minn. R. Crim. P. 27.03, which provides in part:

Subd. 8. Clerical Mistakes. Clerical mistakes in judgments, orders, or other parts of the record or errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.


Subd. 9. Correction or Reduction of Sentence. The court at any time may correct a sentence not authorized by law. The court may at any time modify a sentence during either a stay of imposition or stay of execution of sentence except that the court may not increase the period of confinement.


Minn. R. Crim. P. 27.03, subds. 8-9.  We conclude that Swanson’s reliance on subdivision eight is misplaced: the sentence in this case is not the result of a clerical mistake.  On appeal from an order denying a Rule 27.03, subd. 9, motion “we will not reevaluate a sentence if the district court’s discretion has been properly exercised and the sentence is authorized by law.”  State v. Stutleberg, 435 N.W.2d at 633-34 (Minn. App. 1989) (quoting Fritz v. State, 284 N.W.2d 377, 386 (Minn. 1979).  For a  sentence to be “unauthorized” it must be contrary to law or applicable statutes.  State v. Humes, 581 N.W.2d 317, 319-20 (Minn. 1998).  In this case, the state asserts that there were many grounds for an upward departure from the sentencing guidelines, and Swanson acknowledged at the plea hearing that he knew there was a possibility of an upward sentencing departure if he did not accept the plea agreement.  We conclude that the district court did not err in denying Swanson’s motion under the criminal rules, but we also conclude that the district court erred by holding that “[t]he fact that an incorrect severity level was applied to the kidnapping count at the time of sentencing is immaterial . . .,” and that “[t]here is no mutual mistake of fact” about the plea agreement. 

            Although the district court correctly noted that the total of 125 months was part of the plea bargain, the state concedes that this total was based on a mutual mistake about the severity level of the kidnapping charge.  We therefore find no merit in the state’s argument that the admitted error concerning the severity level of the kidnapping charge had no bearing on Swanson’s decision to plead guilty.  The sentencing transcript clearly reflects that Swanson was to receive the “bottom of the box” guidelines sentence for each offense and that he only agreed to 125 months based on the mutual mistake of the parties and the district court that the kidnapping offense to which he pled was a level-eight offense with a presumptive “bottom of the box” sentence of 81 months. 

            Swanson acknowledged that he was getting a benefit from the plea bargain, and he agreed to permissive consecutive sentencing, but he did not agree to an upward durational departure from the “bottom of the box” presumptive sentence for each offense.  The sentencing court’s reference to an upward departure in this case, justified by the plea agreement and violation of the zone of privacy, does not change our determination that the plea agreement was based on a mutual mistake.  The plea agreement did not contain an agreement to an upward departure.  If anything, the reference by the sentencing court to an upward departure constitutes another mistake acquiesced to by the parties, who made no objection to the reference.  The record clearly establishes that the state and Swanson agreed to, and the court approved, “bottom-of-the-box” guideline sentences for each of the charges, to be imposed consecutively, and that neither party considered the sentence imposed to be an upward departure from the guidelines.

A valid guilty plea must be accurate, voluntary, and intelligent.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). 

The main purpose of the accuracy requirement is to protect a defendant from pleading guilty to a more serious offense than he could be convicted of were he to insist on his right to trial. . . . The purpose of the requirement that the plea be intelligent is to insure that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea.


Id.  Because of the mutual mistake about the severity level of the kidnapping offense, Swanson’s plea was not accurate or intelligent because by mutual mistake he essentially pleaded guilty to a more serious offense than he was charged with.

            Swanson relies on State v. Walker, 351 N.W.2d 679 (Minn. 1984), for the proposition that where a mutual mistake exists in the calculation of the guidelines sentence, the remedy is to correct the sentence to the presumptive guidelines sentence.  But Walker did not involve a plea agreement based on a mutual mistake.  See 351 N.W.2d at 679.  The proper remedy for an invalid plea due to a mutual mistake is reversal of the sentence and remand with directions to the district court to give Swanson an opportunity to withdraw his plea.  See Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997) (noting that manifest injustice occurs if a guilty plea is not accurate, voluntary, and intelligent; therefore the plea may be withdrawn).

            Reversed and remanded.


[1] The state speculates that the district court thought permissive consecutive sentencing constituted a departure, but the record does not disclose why the district court referred to the sentence as a departure.