This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Eliazin Santana Garcia,
Filed December 12, 2006
Reversed and remanded; motion to dismiss denied;
motion to strike granted in part and denied in part
Hennepin County District Court
File No. 05014527
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)
Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent)
Considered and decided by Minge, Presiding Judge; Hudson, Judge; and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges respondent’s sentence based on a plea agreement that was negotiated with the court, arguing that the district court impermissibly became a party to the plea negotiations. Because the district court erred by improperly injecting itself into the plea negotiations, we reverse the guilty plea and sentence and remand the matter for trial or further plea negotiations and sentencing before a judge other than the judges previously involved in this matter. We also deny respondent’s motion to dismiss and grant in part and deny in part appellant’s motion to strike.
Respondent Eliazin Garcia was
charged with first-degree possession of cocaine. At a pretrial conference, Garcia, his
attorney, and the district court discussed the terms of a plea by Garcia. There is no transcript of this
conference. The next day, the parties appeared
before a different judge, and Garcia pleaded guilty to possessing more than 25
grams of cocaine. The presumptive
guideline sentence for that charge is 86 months executed. Over the objection of appellant State of
The state has moved to strike portions of respondent’s brief and appendix and Garcia has moved to dismiss the appeal as moot because he has been released to the custody of the INS.
D E C I S I O N
We initially address Garcia’s motion
to dismiss this appeal as moot. He alleges
first that if he is found in the
We are not persuaded by either of Garcia’s arguments. In his first argument, he mischaracterizes the outcome sought by the state. During plea negotiations, the state offered Garcia a recommended sentence of 58 months in prison—one-third less than the guidelines amount. Even on appeal, the state is not seeking an 86-month prison sentence; instead, it asks that this court vacate the guilty plea and sentence and remand the matter for trial.
Additionally, if Garcia is
actually deported and later returns to the
Garcia also argues that this
appeal is moot because he has been released to the INS and is no longer in the
In addressing the merits of this
appeal, we note first the argument of the state that the district court
improperly injected itself into plea negotiations, rendering the plea and
sentence invalid. We find this argument
persuasive. A judge should neither usurp
the responsibility of counsel nor participate in the plea bargaining
negotiation itself. State v. Johnson, 279
The Minnesota Supreme Court has
voiced its disapproval of district court participation in plea bargaining. See
State v. Nelson, 257 N.W.2d 356, 359
n.1 (Minn. 1977) (stating that “[t]rial judges should be very cautious not to
impermissibly participate in plea negotiations.”); Johnson, 279 Minn. at 216, 156 N.W.2d at 223 (declaring that a judge’s
role is one of discrete inquiry into the propriety of the plea arrangement, not
that of a party to the negotiation). When
a district court injects itself into plea negotiations, it removes itself from
the role of an “independent examiner” and becomes “one of the parties to the
negotiation” and is “excessively involved in the negotiations themselves.” Johnson,
Here, as in Anyanwu, the district court usurped the role of counsel. The state vehemently objected to using Garcia’s immigration status as a basis for the dispositional departure. The sentencing transcript reveals that the sentencing judge recognized that the pretrial judge had entered the negotiations:
THE COURT: And, Ms. Charles, your client wants to plead guilty under the terms as offered by [the judge involved in plea negotiation]? (emphasis added).
MS. CHARLES: That’s correct, Your Honor. 107 days credit.
Moreover, on his petition to enter a plea of guilty, Garcia crossed out the term “prosecuting attorney” and added “Judge” as a party to the plea negotiation. Therefore, the record before this court reveals that the sentencing judge, the prosecuting attorney, and the defendant all recognized that the court had entered into the negotiations. By offering terms to the defendant, the court was no longer an “independent examiner” but became a “party” to the agreement. The plea was therefore invalid, and we reverse and remand for further proceedings before a judge other than one previously involved in this matter.
also argues that the district court abused its discretion by improperly
considering Garcia’s immigration status as grounds for the departure. Although we reverse Garcia’s sentence on the basis
that the district court improperly injected itself into the plea negotiations,
we nonetheless address the departure issues because they may arise again on
remand. A district court must order the
presumptive sentence provided in the sentencing guidelines unless the case
involves “substantial and compelling circumstances” to warrant a downward
departure. State v. Kindem, 313 N.W.2d 6, 7 (
The Minnesota Sentencing Guidelines
provide a list of non-exclusive factors that a district court may use as
reasons for granting a downward departure.
This court reviews a sentencing
departure to determine whether the district court has stated proper grounds for
the departure, or whether such grounds appear in the record. State v. Carter, 424
N.W.2d 821, 823 (
A district court may also impose
probation “in lieu of an executed sentence when the defendant is particularly
amenable to probation.” State v. Gebeck, 635 N.W.2d 385, 389 (
The district court gave two reasons for the departure: (1) acceptance of responsibility and (2) Garcia’s impending deportation. The court did not weigh any other probationary factors. Nothing in the record indicates that the district court considered anything other than Garcia’s short statement of “I plead guilty and I’m sorry” in determining that he accepted responsibility and therefore was amenable to probation. There was no Presentence Investigation Report prepared, nor are there any other reports from probation officers or treatment professionals indicating that Garcia was amenable to probation. Importantly, although Garcia argues that he showed remorse, the court did not specifically list remorse as one of the reasons for the departure. We decline to make such an independent determination ourselves on the sparse record before us.
The district court’s second stated
reason for the departure—deportation—is an impermissible factor that should not
be the basis for a departure. In
We are unconvinced by Garcia’s argument that courts have based departures on deportation. While reliance on deportation may, indeed, be present in cases that conclude in the district court, we are not called upon to review the wisdom or propriety of that reliance. Our review of appellate caselaw reminds us, however, that immigration sanctions are collateral consequences of a criminal sentence, and offer scant support for relief sought by defendants in criminal proceedings. See, e.g., Alanis v. State, 583 N.W.2d 573, 578-79 (Minn. 1998) (holding that federal immigration consequences of criminal convictions are collateral, not direct, consequences of the convictions, and deportation alone is not a manifest injustice warranting postconviction relief in a state criminal proceeding).
Motion to Strike
now to the state’s motion to strike certain portions of Garcia’s brief and
appendix, we note that a court “will strike documents included in a party’s
brief that are not part of the appellate record.” Fabio
v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d on other grounds, 504 N.W.2d 758 (
The Minnesota Sentencing Guidelines document is in the public realm and uncontroverted; thus, we decline to strike it from the record. However, the police report is not part of the record, nor has Garcia shown that its inclusion is necessary to our administration of justice. Therefore, the motion to strike is granted as to the police report and denied as to the Minnesota Sentencing Guidelines document. We note, however, that the inclusion of the guidelines document and the exclusion of the police report in no way affect our determination that Garcia’s sentence was impermissible.
Reversed and remanded; motion to dismiss denied; motion to strike granted in part and denied in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 In so deciding, we are not insensitive to the very real probability that the district court here attempted to resolve the matter expeditiously and justly. If all parties had agreed to this attempt, there would be no issues for this court to address. Agreement was not achieved, however, and the state had the right to seek relief in this court. Minn. R. Crim. P. 28.04, subd. 1(2), and 28.05, subd. 1.