This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


James Timothy Schwich,


Filed December 26, 2006

Reversed and remanded

Minge, Judge


Washington County District Court

File No. K7-05-5134



Mike Hatch, Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Doug Johnson, Washington County Attorney, Michael Hutchinson, Jennifer Bovitz, Assistant County Attorneys, Washington County Government Center, 14949 62nd Street North, Stillwater, MN 55082 (for appellant)


Douglas H.R. Olson, Rider, Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the sentence imposed on respondent, arguing that the district court impermissibly injected itself into plea negotiations and that the record is insufficient to support the downward sentencing departure.  Because we conclude that the district court erred by impermissibly injecting itself into plea negotiations, we reverse and remand.


            In August 2005, while on probation for a felony DWI in Dakota County, respondent James Timothy Schwich was charged in Washington County with a second felony DWI and two other driving offenses.  In the Washington County prosecution, appellant State of Minnesota offered to dismiss the other counts if respondent pleaded guilty to one count of felony DWI.  Respondent accepted the offer.  However, there was no agreement regarding the sentence.  After discussions in chambers, the plea hearing was held.  The Washington County district court indicated at the hearing that based on “the circumstances of this case,”  so long as there was not a “new revelation” in the presentence investigation (PSI), it would depart from the presumptive sentence by not sentencing respondent to prison but instead placing him on probation and ordering him to serve one year in jail with work release, consecutive to his remaining Dakota County sentence.  The state opposed such a sentencing departure.  

            A PSI was completed.  The PSI recounted respondent’s record and circumstances, stated that there were no reasons to depart from the presumptive sentence of 48 months of incarceration, and recommended that sentence.  At the sentencing hearing, the district court, over the state’s objection, departed dispositionally by sentencing respondent to the presumptive 48 months, but staying execution of the sentence, and placing respondent on probation.  This appeal followed. 



            The first issue is whether the district court impermissibly injected itself into plea negotiations.  A judge should neither usurp the responsibility of counsel nor participate in the plea-bargaining negotiation itself.  State v. Johnson, 279 Minn. 209, 216, 156 N.W.2d 218, 223 (1968).  Rather, the district court’s role in the plea process is limited to determining the appropriateness of the proffered plea bargain.  Id.  In Johnson, the supreme court explained:

[The judge’s] role is a delicate one, for it is important that [the judge] carefully examine the agreed disposition, and it is equally important that [the judge] not undermine his [or her] judicial role by becoming excessively involved in the negotiations themselves . . . .  The judge’s role is not that of one of the parties to the negotiation, but that of an independent examiner to verify that the defendant’s plea is the result of an intelligent and knowing choice and not based on misapprehension or the product of coercion. 


Id. at 216 n.11, 156 N.W.2d at 223 n.11 (quotations omitted).  When a district court injects itself into plea negotiations, it is no longer an “independent examiner” of the plea negotiations, but becomes “one of the parties to the negotiation” by virtue of its excessive involvement.  Id.  The district court abandons its proper role when it, for example, “promise[s] the defendant a particular sentence in advance, and force[s] the plea bargain on the prosecutor over the prosecutor’s objections.”  State v. Anyanwu, 681 N.W.2d 411, 415 (Minn. App. 2004). 

            Citing State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002), respondent claims that the state has waived this issue on appeal because of its failure to object to the district court’s conduct at either the plea hearing or sentencing hearing.  But a party’s “failure to object to the court as a party to the plea arrangement is not fatal to [such a] claim because the arrangement itself is impermissible.”  Anyanwu, 681 N.W.2d at 414.  We conclude that in this case there is no waiver of this issue of judicial involvement

            In this case, the plea hearing referred to the earlier discussion in chambers.  After the district court accepted respondent’s guilty plea, the district court stated: “We did have prior discussion and that discussion was basically that, provided that there’s not some new revelation I haven’t heard already in the PSI, that I would be willing to depart . . . .”  The prosecutor acknowledged that the matter had “been the subject of some in-chambers discussions” and noted its disagreement with a departure.  The district court then responded, “[T]hat’s true.  And that I looked through the file, we had extensive discussions both today and at the pretrial back in November, and I indicated I was willing to do that under the circumstances of this case and again, dependent on what the PSI says.” 

            Several weeks later at the sentencing hearing, respondent’s attorney told the district court, “You’re going to give him an additional year here consecutive.  That was the deal between me and the Court.  The county was not part of the negotiation.”  Respondent’s attorney also acknowledged that the state recommended “the prison sentence.” 

            Respondent disputes the state’s characterization of the plea negotiation as improper.  But both the district court and respondent’s attorney acknowledged that the district court’s statements were in the nature of representations.  These statements were made before the guilty plea was entered and the accused could be expected to claim that he relied on the district court’s statements in pleading guilty.  Most importantly, the state did not agree to the sentence outlined by the judge at the plea hearing.  When the district court indicated that it would be willing to depart, unless there was “some new revelation  . . . in the PSI,” it effectively promised respondent in advance of his plea that he would avoid incarceration.  This advance assurance was probably more important to respondent than the prosecutor’s agreement to drop the other two charges.  The assurance compromised the prosecution’s position prior to entry of the plea.  When the district court suggested the arrangement over the prosecutor’s objections and adhered to the arrangement; the district court essentially abandoned its role as an independent examiner, became a party to the negotiation, and augmented the deal offered by the prosecution.  Negotiating the best agreement possible with the prosecutor and attempting to augment it with a favorable, and hopefully firmly added commitment from the court is certainly a tempting strategy for the accused. 

            Here, the situation was the functional equivalent of a court-negotiated plea bargain, and the resulting sentence and plea bargain are invalid.  See Anyanwu, 681 N.W.2d at 415 (“Anytime a district court improperly injects itself into plea negotiations the guilty plea is per se invalid.”).  That the actual sentence was not imposed until after the PSI was completed and the sentencing hearing was held does not avoid the problem.  The district court had committed itself at the time of the plea to disregard the guidelines and a standard PSI.

            Because respondent acknowledged that he had reached a further agreement with the district court and that the state did not participate in that part of the negotiation, we conclude the that district court was improperly involved in plea negotiations.  In this circumstance, we vacate the guilty plea, reverse the conviction, and remand for further proceedings before another judge. 


            The second issue is whether the district court abused its discretion by granting respondent a downward dispositional departure from the presumptive executed sentence.  We need not address this issue because we reverse based on the district court’s improper participation in the plea negotiation.  We caution, however, that a district court’s mere conclusory finding of amenability will not suffice to uphold a departure.  A district court must articulate “the particular substantial and compelling circumstances” for the departure on the record at the sentencing hearing or in writing.  Minn. Sent. Guidelines II.D. 

            Reversed and remanded.