This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2455

 

 

State of Minnesota,

Respondent,

 

vs.

 

Anthony J. Martin,

Appellant.

 

 

Filed April 3, 2007

Affirmed

Lansing, Judge

 

 

Ramsey County District Court

File No. K8-05-198

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

John Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

 

††††††††††† Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.


U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

In this sentencing appeal, Anthony Martin challenges the district courtís reliance on a conditional plea agreement to impose the guidelines sentence for second-degree assault.† Because Martin has demonstrated no legal error in the district courtís interpretation and enforcement of the agreement and no error in the determination underlying the enforcement, we affirm.

F A C T S

††††††††††† The state charged Anthony Martin with first-degree and second-degree assault †for intentional infliction of a knife wound in an encounter with his brother in January 2005.† On July 18, 2005, Martin appeared for trial with counsel and indicated that he wanted to enter a guilty plea.† In the course of the plea inquiry, Martin acknowledged that he had slashed his brotherís face with a kitchen knife but described his conduct as self-defense.† Because Martin maintained that he had acted in self-defense, the district court declined to accept the plea and the charge was tried to a jury.†

††††††††††† A total of ten witnesses testified at trial.† Following closing arguments and instructions, the district court submitted the case to the jury. †An error in the exhibits that were provided to the deliberating jury raised the possibility of a mistrial, and Martin and the state reinitiated plea negotiations.† They reached an agreement and outlined the terms on the plea petition that Martin completed before entering his guilty plea.† The petition stated that Martin would plead guilty to second-degree assault; the state would dismiss the first-degree assault charge; Martin would receive a twenty-seven-month sentence instead of the presumptive guidelines sentence of thirty-three months; and Martin would appear for sentencing, remain law-abiding, and cooperate in the preparation of a presentence report.†

††††††††††† Martinís attorney referred to the plea petition when he conducted an on-record plea inquiry of Martin. †He called Martinís attention to various paragraphs including the paragraph that required Martin to appear for sentencing, remain law-abiding, and cooperate in the preparation of the presentence report.† He asked if Martin understood that, if he failed to return for sentencing, remain law-abiding, or cooperate in preparing the presentence investigation, the district court could then sentence him according to law rather than impose a twenty-seven-month sentence. †At the end of his questioning, Martinís attorney submitted the petition to the district court.† The district court continued the plea inquiry and asked Martin if he understood that he would not be able to withdraw his plea if he violated any of the three conditions.† Martin said, ďI understand.Ē†

††††††††††† The court observed that the paragraph setting out the three conditions did not specifically state that Martin would be unable to withdraw his plea.† Martinís attorney promptly added a sentence stating that if ďdefendant fails to do any of the above, defendant may not withdraw his plea and the court may sentence according to law.Ē †Martin and his attorney initialed the added language.

††††††††††† The prosecutor also questioned Martin and specifically asked whether he understood that the three conditions and the plea-withdrawal limitation were terms of the agreement that had been reached and that the failure to remain law-abiding could result in a sentence greater than twenty-seven months.† Martin stated that he understood.† Martinís attorney again inquired whether Martin understood that if he violated any of the three conditions that he could not withdraw his plea, and the district court could sentence him according to law.† Martin again confirmed his understanding of the provision.†

††††††††††† The district court set the sentencing hearing for September 15, 2005, and explained the presentence-investigation procedures.† After continuing Martinís conditional release, the district court again admonished Martin to remain law-abiding and to appear for sentencing.†

††††††††††† On August 1, 2005, St. Paul police arrested Martin for domestic assault of CRW, who shares his house. †He was released on bail, and on September 15, 2005, Martin appeared for sentencing on the second-degree assault on his brother.†

††††††††††† The district court noted that Martin had been arrested for domestic assault between the entry of the plea and the sentencing hearing.† The prosecutor, relying on the new charge as evidence of Martinís failure to remain law-abiding, requested that the district court enforce the plea agreement by sentencing Martin to the presumptive guidelines sentence of thirty-three-months.† Martinís attorney requested that the district court accord Martin the presumption of innocence and sentence him to twenty-seven months.† Martinís attorney did not request a continuance or ask for an evidentiary hearing on Martinís guilt or innocence.† He reported that the assault charge was set for trial in a couple of weeks and told the court, ďI donít think you want to try that new case here today . . . .Ē†

††††††††††† The district court reviewed the police report for the August 1, 2005, domestic assault. †After reviewing the report, the district court told Martin that he was no longer entitled to the twenty-seven-month sentence and would instead be sentenced to thirty-three months, the presumptive sentence provided under the guidelines.† Martin appeals the district courtís sentence.†

D E C I S I O N

††††††††††† The interpretation and enforcement of plea agreements raise issues of law that we review de novo. †State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).† But the terms of the plea agreement are issues of fact to be resolved by the district court.† Id.†The district courtís factual findings on the contents of a plea agreement must be upheld unless they are clearly erroneous.† State v. Robledo-Kinney, 615 N.W.2d 25, 32 (Minn. 2000).

††††††††††† On appeal, Martin raises three challenges to his thirty-three-month sentence.† Martinís challenges all focus on the term permitting a guidelines-based sentence if Martin failed to return for sentencing, remain law-abiding, or cooperate in the presentence investigation.† First, Martin argues that the district court impermissibly interjected itself into the plea negotiation by adding this term to the plea agreement.† Second, he argues that he did not have an opportunity to consult with his attorney or fully consider the implications of this new term.† Third, he argues that the record does not support the district courtís determination that he failed to remain law-abiding.

††††††††††† We are unable to find a factual or a legal basis for Martinís first argument that the district court impermissibly inserted the term in the plea agreement that provides for sentencing according to law in the event Martin violates any of the three conditions.† We agree that the district courtís role in a plea negotiation is to provide independent supervision and ensure that the defendantís plea is the result of an intelligent and knowing choice, which is not a product of coercion.† See State v. Johnson, 279 Minn. 209, 215-16, 156 N.W.2d 218, 223 (1968) (delineating judicial responsibility in plea negotiations).† And the district court complied with this standard.

Martin relies on a series of cases that generally stand for the principle that a district court may not unilaterally add conditions at sentencing that have not been agreed to in the plea negotiation.† See, e.g., State v. Kealy, 319 N.W.2d 25, 26 (Minn. 1982) (imposing sentence despite plea agreement to stay imposition of sentence); State v. Kunshier, 410 N.W.2d 377, 379 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987) (imposing consecutive sentences despite plea agreement for concurrent sentences).† These cases do not provide authority for Martinís argument because the district court did not unilaterally add any condition at sentencing that was not agreed to in the plea negotiations and the written plea petition.

The plea-hearing transcript indicates that the prosecutor and the defense attorney conducted bilateral plea negotiations in which the district court was not a participant.† The term that Martin asserts was interjected by the district court was first submitted to the court by the attorneys in the incomplete guilty plea that preceded the jury trial.† In that plea inquiry, Martinís attorney questioned him carefully on his obligation to cooperate in the preparation of the presentence-investigation report, to appear for sentence, and to remain law-abiding between the entry of the plea and the sentence hearing.† Martin told his attorney that he understood that if he violated any of the conditions he could not withdraw his plea and the district court could sentence him according to law, which would be the guidelines sentence.†

These conditions were again part of the plea inquiry when Martin elected, while the jury was deliberating, to enter an Alford plea to the less serious of the two charges.† See State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977) (citing North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167 (1970), which permits guilty plea based on acknowledgment that state has sufficient evidence to obtain conviction).† Martin was again asked by his attorney whether he understood that he could be sentenced under the guidelines if he failed to return for sentencing, remain law-abiding, or cooperate with the presentence investigation.† Martin again acknowledged that these provisions were part of the plea bargain.

The district court noted that the written plea agreement varied from the oral representations of the agreement because it did not state what would happen if Martin failed to comply with the three conditions.† The district court did not impose this condition on its own.† Instead, the court indicated that the written plea agreement should conform to the oral agreement that was elicited in the plea inquiry.† Martinís attorney promptly added a term to the written agreement stating that if ďdefendant fails to do any of the above, defendant may not withdraw his plea and the court may sentence according to law.Ē† Both Martinís initials and his attorneyís initials appear after this final term, and the transcript confirms that each one agreed to this final term.

The record reflects that this term had always been part of the oral plea agreement.† The prosecutor, in the questioning that followed, confirmed with Martin that this provision had been agreed to before the court noted the inconsistency.† The record shows that the district court was functioning as an independent examiner, ensuring that both the court and Martin fully understood the agreement and that the written plea agreement conformed to the oral description of it.† We therefore find no basis for Martinís claim that the district court unilaterally added a term to the plea agreement.

Second, in a subsidiary argument, Martin appears to claim that he did not have an opportunity to consult with his attorney or fully consider the implications of the new term.† Again, we find no factual basis for this claim.† The record indicates that term had always been a part of the oral plea agreement.† Furthermore, at the plea hearing, Martin stated that he had been provided enough time to consult with his attorney and to think about his plea.† When the district court told Martin that if he failed to remain law-abiding he would not be allowed to withdraw his plea, Martin specifically said that he understood the term to mean that he needed ďto stay out of trouble.Ē† Under explicit examination by each attorney and by the district court, Martin consistently confirmed his understanding of the plea agreement and the consequences if he failed to comply.

††††††††††† Martinís final argument is that the district court erred by finding that he breached the condition to remain law-abiding.† We conclude that the record adequately supports the district courtís factual finding.† The district court reviewed the police report of the domestic assault against CRW. †The report contained eyewitness accounts provided by CRW and her daughter.† The report also described the police officerís observations of the injury to CRWís arm.† At the sentencing hearing the district court knew that Martinís no-contact order with CRW had been cancelled because CRW had recanted.† The district court assessed the evidence, including the genuineness or lack of genuineness of the recantation, and determined that Martin had failed to remain law-abiding.† We note that the standard for finding a violation of a plea agreement is unclear.† See State v. Rivest, 316 N.W.2d 395, 399 (Wis. 1982) (requiring evidentiary hearing to establish defendantís violation of plea agreement).† Although Martin requested that he be presumed innocent, he did not demand an evidentiary hearing or challenge the district courtís use of the report.† Therefore, regardless of the evidentiary standard for finding a violation of a plea agreement, Martin did not preserve the issue for appeal.† We therefore conclude that the record supports the district courtís finding that Martin breached the agreement by failing to remain law-abiding.

††††††††††† Affirmed.