This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota,





Joseph C. Merritt,



Filed April 17, 2007

Affirmed as modified

Hudson, Judge


Stearns County District Court

File Nos. K6-04-4359, K6-04-4360, K4-04-4361


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and


Janelle P. Kendall, Stearns County Attorney, Christa M. Van Gundy, Assistant County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, Minnesota 56303 (for respondent)


John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)


            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Joseph C. Merritt challenges his conviction of two counts of criminal sexual conduct in the first degree and one count of criminal sexual conduct in the second degree.  Appellant argues that his conviction is invalid because (1) the court impermissibly injected itself into the plea negotiations; and (2) the “reaffirmed” plea did not have a factual basis.  Additionally, appellant argues that the district court erred by not reducing appellant’s criminal history score to zero when it imposed consecutive sentences.  We affirm the conviction, but we modify appellant’s sentence.


On January 24, 2004, appellant Joseph C. Merritt’s wife, Margaret Merritt, contacted the police to report that appellant had sexually molested her 14-year-old daughter, KG.  Appellant was KG’s stepfather.  These allegations led to charges against appellant of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subd. 1(h)(iii), subd. 2(a) (2002).  As part of the investigation, law enforcement interviewed other members of KG’s and Margaret’s family, including Margaret’s grandchildren: JR (DOB 2/8/97), LR (DOB 2/12/96), and GD (DOB 10/20/97).  JR, LR, and GD all reported various instances of sexual abuse by appellant. 

On May 12, 2004, an amended criminal complaint was filed charging appellant with crimes against all four victims.  Appellant moved for severance of the charges, which the district court granted on August 3, 2004.  Consequently, the county filed four separate complaints on September 27, 2004.  This appeal involves three of the four complaints: (1) K6-04-4359 charged appellant with two counts of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2002) and two counts of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subds. 1(g), 2(a) (2002) and Minn. Stat. § 609.343, subds. 1(h)(iii), 2(a) (2002), for acts against LR; (2) K2-04-4360 charged appellant with two counts of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subds. 1(g), 2(a) (2002) and Minn. Stat. § 609.342, subds. 1(h)(iii), 2(a), for acts against JR; and (3) K4‑04‑4361 charged appellant with one count of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343, subds. 1(g), 2(a) (2002), for acts against GD.

On the day before the trial was to begin for the first of these three matters, appellant entered pleas on all three files.  Appellant pleaded guilty to count two, criminal sexual conduct in the first degree in file K6-04-4359; to count two, criminal sexual conduct in the first degree in file K2-04-4360; and to criminal sexual conduct in the second degree in file K4-04-4361.  The transcript of April 11, 2005 reflects that before the district court accepted appellant’s plea, the following exchange occurred:

[JUDGE]:       Now, I do want to summarize (indiscernible).  Last Friday the attorneys asked to speak to me, and [the defense attorney] then asked if I would – if his client pled straight up, would I go beyond the 288 months, which before the first trial apparently was the offer but is clearly withdrawn at this point and has been for some time.  And I indicated that I would not, simply because if I were to go beyond 288 months, he would have, in essence, got a sentence several years longer than a second degree intentional murder.  And I don’t know that I said it at the time, but at the start of the scope of the guidelines and the purpose and the proportionality is such that I indicated that I would not, but the State did indicate that they would have a full sentencing hearing so the victims could be heard.  And if something happened to me or somehow I changed my mind after answering that question that I would not, I would think the [appellant], in the interests of justice, not through any rights other than that, should be able to withdraw the plea.  But I do not regard that as a plea agreement and I don’t – do we need to make anymore record on that for the conversation?


[DEFENSE COUNSEL]:      Mr. Merritt [appellant], do you understand what Judge [ ] just told you?


[APPELLANT]:         Part of it.  But the part I don’t understand what you said that you would not go beyond, but if I do go beyond it, you had a change of heart, that you might go beyond it.


[JUDGE]:       But if I did that – I mean I honestly answered the question.  I’m familiar with this case and 288 months is something that even if I had the discretion to go beyond I wouldn’t, but if I had a change of heart, which I would have the right to do –


[APPELLANT]:         Correct.


[JUDGE]:       --then I think the interests of justice would require that you could withdraw your plea.


[APPELLANT]:         Okay.  Thanks.


[DEFENSE COUNSEL]:      Knowing that, Mr. Merritt [appellant], do you want to tender your pleas of guilty on these three outstanding felonies?


[APPELLANT]:         Yeah.


[JUDGE]:       All right.  Does anybody want to make anymore record on that?


[PROSECUTOR]:      I have nothing additional, Your Honor.


[JUDGE]:       And that’s a fair summary of our conversation?


[DEFENSE COUNSEL]:      It is, Your Honor.


Following this exchange, appellant entered his guilty pleas.  Ultimately, the district court decided to sentence appellant to a total of 345 months.  Appellant then requested permission to withdraw his pleas and, without objection from the prosecutor, the district court permitted withdrawal “in the interests of justice,” as it had indicated earlier that it would.  On June 2, 2005, the case was reassigned to another judge.

            At a hearing on August 18, 2005, in front of a different judge (before the first scheduled trial was to begin), appellant decided he wanted to reaffirm his guilty pleas to the court “straight up.”  Defense counsel told the court that at the April 11, 2005 hearing, the initial judge found a factual basis for each of the counts to which appellant pleaded guilty.  Referring to the initial judge’s determination, defense counsel further stated:

Judge [ ] allowed my client to withdraw his plea because Judge [ ] went beyond what he had explained would happen at his sentencing, which was the basis of my client pleading straight up to those counts.  Since that time period, my client has decided to ask this Court to reaffirm his pleas that he made in front of Judge [ ] on the counts as indicated previously, and he’s asking Your Honor to go to sentencing today.  Those reaffirmations are without agreement as with his original plea with Judge [ ].


The court asked appellant if he reaffirmed his previous pleas and the factual basis to which he had testified at the hearing on April 11.  Appellant acknowledged his earlier factual basis for his pleas and had a lengthy conversation with both defense counsel and the prosecutor, affirming his desire to reaffirm the factual basis:

[DEFENSE COUNSEL]:      But what you said on the stand back in April was the truth, correct?


[APPELLANT]:         Yes.


[DEFENSE COUNSEL]:      And you want the Court to, again, accept that factual basis, and you don’t wish to have trials on these three files; is that true?


[APPELLANT]:         Yeah.

Following appellant’s reaffirmation of his pleas, he was sentenced.  The prosecutor asked that appellant be sentenced consecutively on all three files, arguing that appellant lacked remorse and did not take full responsibility for his actions.  Defense counsel asked the court to sentence appellant on all three cases concurrently.  The court sentenced appellant to (1) 144 months in court file K6-04-4359 for criminal sexual conduct in the first degree, concurrent to court file K7-04-384 (K7-04-384 is not involved in this appeal); (2) 144 months in court file K2-04-4360 for criminal sexual conduct in the first degree, consecutive to K6-04-4359; and (3) 57 months in court file K4-04-4361 for criminal sexual conduct in the second degree, consecutive to K2-04-4360.  The total sentence was 345 months.

            In announcing appellant’s 57-month consecutive sentence for K4-04-4361, the court did not reduce appellant’s criminal history score to zero and did not announce its intent to depart from the guidelines.  This appeal follows.



            Appellant argues that the district court improperly injected itself into plea negotiations, rendering the plea and subsequent reaffirmation of the plea invalid.  Issues involving the interpretation and enforcement of plea agreements are issues of law that this court reviews de novo.  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).

            To be valid, a guilty plea must be accurately, voluntarily, and intelligently made, and not the product of coercion.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  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).  The district court’s “ultimate judicial responsibility” is to make reasonably certain that a defendant has not been improperly induced to plead guilty to a crime and is not being permitted to bargain for a plea that is excessively lenient. 215–16, 156 N.W.2d at 223.   Irrespective of any demonstrated prejudice, the law is clear that a guilty plea is per se invalid when the district court impermissibly injects itself into plea negotiations.  State v. Moe, 479 N.W.2d 427, 429–30 (Minn. App. 1992), review denied (Minn. Feb. 10, 1992).

            The Minnesota Supreme Court has disapproved of district court participation in plea bargains or negotiations.  See Johnson, 279 Minn. at 215–16, 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); 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.”).  The Johnson court did, however, cite to the position taken by the President’s Commission on Law Enforcement and Administration of Justice in noting the difficulty of assessing a judge’s delicate role with regard to plea bargaining:

[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.


Johnson, 279 Minn. at 216 n.11, 156 N.W.2d at 223 n.11 (quotations omitted).  “When a district court injects itself into plea negotiations, it has removed itself from the role of an ‘independent examiner’ of the plea negotiations and has stepped into the position of ‘one of the parties to the negotiation’ by becoming ‘excessively involved in the negotiations themselves.’”  State v. Anyanwu, 681 N.W.2d 411, 414–15 (Minn. App. 2004).  “[I]mproperly injecting itself into the plea negotiations” has meant “[i]t is improper for a district court to promise a particular sentence in advance.”  Id.

            Appellant argues that his plea was impermissible in the same way as the plea described in State v. Anyanwu.  In Anyanwu, the court stated:

[T]he district court directly and unequivocally promised the defendant a particular sentence in advance, and forced the plea bargain on the prosecutor over the prosecutor’s objections.  By doing so, the district court stepped into the position of one of the parties to the negotiation, over the objection of the prosecutor, and abandoned its role as an independent examiner.


Id. at 415.  But, Anyanwu is distinguishable.  In Anyanwu, this court held that the district court was impermissibly involved in plea negotiations because the district court promised a specific outcome; there was a plea agreement between the defendant and the judge for a sentence of 210 months, an upward departure which was lower than that sought by the prosecution.  Here, it is clear that the initial judge did not promise a specific sentence to appellant.  Rather, he indicated that should he decide to sentence appellant to time greater than 288 months, he would permit appellant to withdraw his guilty plea “in the interests of justice.”  And, in fact, the initial judge did sentence appellant to more than 288 months; he sentenced appellant to 345 months.  Appellant then moved to withdraw his guilty plea, which the initial judge permitted in the interests of justice.  But there was no promise of a specific sentence; the court simply answered defense counsel’s question regarding the court’s intended sentence.  Nothing in the record indicates that the court’s statements regarding appellant’s right to withdraw his plea if the court sentenced him to more than 288 months amounted to “involvement” in a plea negotiation. 

            Anyanwu is also distinguishable because in Anyanwu, the prosecutor objected to the district court’s clear injection in the plea negotiations.  Here, the prosecutor did not object to the court’s statements regarding appellant’s decision to plead guilty.  In fact, the record indicates that the prosecutor assented:

[DEFENSE COUNSEL]:      … Mr. Merritt [appellant], do you want to tender your pleas of guilty on these three outstanding felonies?


[APPELLANT]:         Yeah.


[JUDGE]:       All right.  Does anybody want to make anymore record on that?


[PROSECUTOR]:      I have nothing additional, Your Honor.


On this record, we conclude that the district court did not impermissibly inject itself into the plea negotiations, and therefore appellant’s guilty plea was valid.


Appellant contends that the reaffirmation of his guilty pleas was not sufficient to establish an accurate, voluntary, knowing, and intelligent plea because the district court failed to make the required factual-basis findings.  The prerequisites for a valid guilty plea are that it must be made accurately, voluntarily, knowingly, and intelligently.  Ecker, 524 N.W.2d at 716.  For a guilty plea to be accurate, it must be established by a factual basis.  Id.  There is no exclusive method for satisfying the factual basis required for a plea, but there is a preference that it is done with testimony of the accused.  Kochevar v. State, 281 N.W.2d 680, 686 (Minn. 1979). 

            Here, appellant testified to a factual basis for each charge at his first plea hearing on April 11, 2005.  Appellant had full knowledge of his rights and the available alternatives to pleading guilty.  Additionally, the initial judge went over appellant’s right to trial with him and reminded appellant of the trial dates that had already been set for each of the files.  Aware of the alternatives, appellant freely entered a plea of guilty.  After entering his guilty plea, appellant testified about his conduct and provided a factual basis that satisfied each of the factual elements of the crimes to which he pleaded guilty.              Appellant reaffirmed his guilty pleas on August 18, 2005, before the second judge.  That is, appellant intelligently and voluntarily acknowledged a prior intelligent and voluntary plea, as demonstrated by this exchange with defense counsel:

Q:        But what you said on the stand back in April was the truth, correct?


A:        Yes.


Q:        And you want the Court to, again, accept that factual basis, and you don’t wish to have trials on these three files; is that true?


A:        Yeah.

The second judge explicitly accepted the previously determined factual basis for the pleas.  The record states:

[JUDGE]:       And you are now asking that the Court allow you to reaffirm your previous pleas and take judicial notice of the facts that were taken on April 11 in front of Judge [ ] and that we go forward then with sentencing; is that correct?


[APPELLANT]:         Yeah.


[JUDGE]:       Is that your understanding, Mr. Merritt [appellant]?


[APPELLANT]:         Yes.


[JUDGE]:       So at this point you understand then we will not be having any trials.  We are going to simply ask you, and you are under oath, if you reaffirm everything that you testified to and the pleas that you gave, the factual basis that you gave before Judge [ ] on April 11.  Is that your understanding?


[APPELLANT]:         Correct.

The second, re-affirmed guilty plea was plainly based on the first one, where the factual basis was clearly set forth.  Having determined that the first guilty plea was valid, we conclude that the second plea was valid as well.

Although we acknowledge that the procedure utilized by the second district court judge here was not ideal, we find no reversible error.  That said, when cases are re-assigned within the court, we remind the district courts that the better practice is for each individual judge to make his/her own record regarding the factual basis for a guilty plea.


            Appellant argues, and respondent concedes, that the district court erred in determining appellant’s consecutive sentence for criminal sexual conduct in the second degree in court file K4-04-4361.  Under Minnesota law, consecutive sentences are permissive when the district court is sentencing multiple current felony convictions for crimes against persons.  Minn. Sent. Guidelines II.F.  For each consecutively sentenced offense, the presumptive duration is calculated using a criminal history score of zero, or by using the mandatory minimum for the offense, whichever results in the greater sentence.  Id.

According to the Minnesota Sentencing Guidelines, the district court judge must find that identifiable, substantial, and compelling circumstances exist in order to depart from the presumptive sentence.  Minn. Sent. Guidelines II.D.  Furthermore, when departing from the presumptive sentence, a judge must provide, in writing or on the record, the “particular substantial and compelling circumstances” that make the departure more appropriate, reasonable, or equitable than the presumptive sentence.  Id.; State v. Foreman, 680 N.W.2d 536, 540 (Minn. 2004).  The district court must state the reasons for departure on the record.  Minn. R. Crim. P. 27.03, subd. 4(C).

            Appellant pleaded guilty to criminal sexual conduct in the second degree under Minn. Stat. § 609.343, subd. 1(g), and was sentenced to 57 months, running consecutively to his previous sentences.  This crime is a severity level VI offense; the presumptive sentence with a zero criminal history score is 21 months.  However, the district court sentenced appellant to 57 months, which corresponds to a criminal history score of six or more.  Because the district court did not state an intent to upwardly depart from the presumptive sentence, the proper remedy is to modify the sentence to the presumptive sentence.  Foreman, 680 N.W.2d at 541.  Consequently, we modify appellant’s sentence by subtracting 36 months.  Appellant’s total sentence of 345 months minus 36 months yields a revised total sentence of 309 months.

Affirmed as modified.