This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Lloyd W. Kuefner,
Filed September 25, 2007
Waseca County District Court
File No. K3-01-43
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Paul M. Dressler, Waseca County
Attorney, Waseca County Courthouse,
John M. Stuart, State Public
Defender, Richard Schmitz, Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Willis, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
this appeal from an order revoking his probation and executing his sentence,
appellant Lloyd Kuefner argues that the district court erred by failing to make
the findings required by State v. Austin,295 N.W.2d 246 (Minn. 1980), before
revoking his probation. Kuefner also
argues that the court violated his plea agreement by sentencing him to a
concurrent sentence that was four months longer than the sentence provided in
the plea agreement. Because the district
court failed to make the
In November 2000, four-year-old T.S. told law-enforcement authorities that appellant Lloyd Kuefner had inserted his penis in her anus, mouth, and vagina. The state charged Kuefner with three counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. Kuefner subsequently pleaded guilty to two counts of second-degree criminal sexual conduct.
The plea agreement provided for a stayed upward departure of up to 50 months. The trial court accepted the plea agreement, but it sentenced Kuefner to stayed concurrent sentences of 54 months on one count and 42 months on the other, with a five-year conditional-release term.
In August 2006, the district court revoked Kuefner’s probation and executed his sentence. Before revoking Kuefner’s probation, the court made a lengthy statement on the record but did not make the findings required by State v. Austin, 295 N.W.2d 246 (Minn. 1980). This appeal from the revocation order and sentence follows. The state did not file a brief.
D E C I S I O N
Kuefner first argues that the
district court erred by revoking his probation without first making the
Generally, the district court has
broad discretion when determining whether probation has been violated and will
not be reversed absent an abuse of discretion.
State v. Ornelas, 675 N.W.2d
74, 79 (
Before revoking a defendant’s
probation, the district court must designate the conditions of probation the
defendant violated and find that the defendant’s violations were intentional or
inexcusable. State v.
Here, the district court made a
lengthy statement on the record before revoking Kuefner’s probation. But the court failed to make the findings
Kuefner next argues that because the sentencing court imposed a longer sentence than the sentence provided in the plea agreement, his sentence should be reduced or he should be allowed to withdraw his plea. Kuefner’s claim has merit.
to allow a defendant to withdraw a guilty plea is a decision within the
district court’s wide discretion. State v. Hamacher, 511 N.W.2d 458, 460 (
A criminal defendant does not have
an absolute right to withdraw a guilty plea once the plea has been
entered. Alanis v. State, 583 N.W.2d 573, 577 (
Both the transcript of the plea hearing and Kuefner’s petition to enter a guilty plea indicate that Kuefner agreed to plead guilty in exchange for a sentence that included a stayed upward departure of up to 50 months. The trial court discussed the plea agreement with Kuefner and accepted his guilty plea. But the court imposed a stayed sentence that was longer than the agreed-on sentence. After the revocation hearing, the district court executed the sentence. Because Kuefner agreed to plead guilty in exchange for the 50-month agreed-on upward departure, the district court erred by failing to advise Kuefner that it had, in effect, rejected the plea agreement and by not giving him an opportunity to affirm or withdraw his plea. We therefore reverse the sentence and remand to allow Kuefner the opportunity to affirm or withdraw his plea. If Kuefner affirms the guilty plea, the district court may proceed to the remand on the probation revocation.
Reversed and remanded.
Dated: _________________ _______________________________________
Judge Natalie E. Hudson