This opinion will be unpublished and

may not be cited except as provided by

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





State of Minnesota,


Todd William Patton,



Filed November 27, 2007


Dietzen, Judge


Douglas County District Court

File No. K4-06-54



Lori Swanson, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Christopher Karpan, Douglas County Attorney, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)


John M. Stuart, State Public Defender, Cathryn Young Middlebrook, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)      


            Considered and decided by Dietzen, Presiding Judge; Ross, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of first-degree sale of a controlled substance and the presumptive sentence imposed, arguing that he is entitled to specific performance of the agreed upon sentence recommendation in his plea agreement that was breached by the prosecutor.  Because the district court gave appellant the option to withdraw his guilty plea and did not abuse its discretion, we affirm.


            In late 2005, at six different meetings, appellant Todd Patton sold a total of 13.5 grams of methamphetamine to a confidential informant.  As a result of these sales, appellant was charged with two counts of first-degree sale of a controlled substance in violation of Minn. Stat. § 152.021, subd. 1(1) (2004).

            Pursuant to a plea agreement, appellant agreed to plead guilty to one count of first-degree sale of a controlled substance and the state agreed to dismiss the other count; both parties agreed to jointly recommend to the court that appellant receive an 84-month sentence, which was at the low end of the range of the presumptive sentence guidelines.  At the plea hearing, appellant acknowledged that he made several sales of methamphetamine totaling more than ten grams on approximately six different occasions.  The district court accepted appellant’s plea and scheduled a sentencing hearing.

            The probation officer, who conducted the pre-sentence investigation (PSI), recommended that appellant be sentenced to 98 months rather than 84 months recommended in the plea agreement.  The report concluded that appellant “seemed to minimize the seriousness of the matter and failed to take responsibility for his behavior” and that appellant “blamed others, law enforcement and the Confidential Informant, for the situation he was in.”

            At the sentencing hearing, the prosecutor indicated that based on appellant’s recent jailhouse phone calls he was no longer recommending 84 months.  Specifically, appellant made phone calls to the confidential informant while in jail stating that “every day I think about you,” that “I can’t wait to see you,” and “don’t get electrocuted by that wire.”  Additionally, appellant and other inmates left a message on the informant’s answering machine, singing “why can’t we be friends?”  Appellant also placed several calls to his 17-year-old girlfriend and engaged in phone sex.  Consequently, the prosecutor stated he was withdrawing from the plea agreement and recommending a sentence of 117 months, which was at the top of the presumptive sentence guidelines.  Appellant’s counsel requested that the court honor the plea agreement and only consider the state’s original recommendation of 84 months.

            The district court concluded that because the state did not intend to abide by the plea agreement, appellant had the option to withdraw his guilty plea and proceed to trial.  Appellant chose not to withdraw his guilty plea and requested that the district court follow the original recommendation in the plea agreement.  The district court then sentenced appellant to 108 months, concluding that appellant lacked remorse and failed to take responsibility for any wrongdoing.  The court explained that it had reviewed the PSI and concluded that appellant “is not amenable to probation or any kind of supervision” and “still seems to be blaming the informant for his own difficulties.”  The court stated that it was not going to punish appellant for the telephone calls to his girlfriend.  This appeal follows.


Appellant argues the district court erred in denying his request for specific performance of the breached plea agreement.  An appellate court will not interfere with the district court’s decision regarding sentencing unless there has been a clear abuse of discretion.  State v. Lundberg, 575 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. May 20, 1998).  

             When a plea agreement is breached, the district court may allow the defendant to withdraw his guilty plea.  See Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979) (“It is well settled that an unqualified promise which is part of a plea arrangement must be honored or else the guilty plea may be withdrawn.”); State v. Wukawitz, 662 N.W.2d 517, 527 (Minn. 2003) (stating that withdrawal of a guilty plea is the first option that must be considered for breach of a plea agreement).  Alternatively, the district court may order specific performance of the breached plea agreement.  James v. State, 699 N.W.2d 723, 728-29 (Minn. 2005). 

Initially, appellant argues that he is entitled to specific performance of the plea agreement, that is, the imposition of the originally recommended 84-month sentence.  We disagree. 

            The Minnesota Supreme Court has expressly stated that “there is no constitutional right to specific performance of a plea agreement.”  State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (citing Santobello v. New York, 404 U.S. 257, 262-63, 92 S. Ct. 495, 499 (1971)).  Appellant suggests that Santobello v. New York supports his argument that he was entitled to choose his own remedy, that is, withdrawal of the guilty plea or specific performance of the plea agreement.  404 U.S. at 262-63, 92 S. Ct. at 499.  We disagree.  In Santobello, the Supreme Court stated that when a prosecutor violates a plea agreement, the court may grant specific performance of the agreement on the plea or provide defendant with the opportunity to withdraw his guilty plea.  Id. at 263, 92 S. Ct. at 499.  But appellant misconstrues Santobello.  Specifically, it is the district court—not the defendant—that has the discretion to determine the appropriate remedy when a plea agreement has been breached.  United States v. McGovern, 822 F.2d 739, 746 (8th Cir. 1987) (citing Santobello, 404 U.S. at 263, 92 S. Ct. at 499).

In short, the plea agreement provides for a recommendation of the sentence; but it is the district court that determines appellant’s sentence regardless of the recommendation.  See Wukawitz, 662 N.W.2d at 522 n.3 (recognizing that recommendations in plea agreements do not bind the court to a specific sentence).  Thus, the plea agreement cannot compel specific performance of a particular sentence.  Consequently, we must examine whether the district court properly exercised its discretion. 

Appellant argues his pre-sentencing jailhouse phone calls were not a proper basis for the prosecutor to withdraw from the plea agreement because no criminal charges resulted.  We have recognized that a defendant’s “alleged crimes committed subsequent to the guilty plea hearing” may serve as a basis for a prosecutor to “ethically” withdraw from a previously offered plea agreement.  State v. Kunshier, 410 N.W.2d 377, 380 (Minn. App. 1987) (emphasis added), review denied (Minn. Oct. 21, 1987).  Significantly, the Kunshier court recognized only one limitation to a prosecutor’s right to withdraw a plea agreement: the prosecutor cannot subsequently oppose the defendant’s motion to withdraw the guilty plea.  Id.  Here, the prosecutor recommended and the district court provided appellant with the option to withdraw his plea but he declined.  Further, we see no evidence that the prosecutor’s decision to breach the plea agreement was unethical or in bad faith.

            Appellant also argues that the district court should have “heard arguments on the defense motion for specific performance and then made a ruling.”  But the district court implicitly rejected appellant’s argument for specific performance by providing appellant with the option to withdraw his guilty plea.

            Finally, appellant claims “[w]ithout the lower sentence promised in the plea agreement, and used by the state to induce [appellant] to agree, [appellant’s] guilty plea was not voluntary.”  But appellant failed to develop the argument beyond making the general statement.  “[I]f a brief fails to make or develop any argument at all, the issue asserted is considered waived.”  State v. Meldrum, 724 N.W.2d 15, 22 (Minn. App. 2006), review denied (Minn. Jan. 24, 2007).  Appellant was given the opportunity to withdraw his guilty plea and declined to do so on the record.  Thus, he has waived the argument.  See State v. Williams, 279 Minn. 152, 153, 155 N.W.2d 739, 740 (1968) (declining to address on appeal claim of involuntary plea where the issue was “neither raised nor passed upon” in the district court and was a “mere argumentative assertion[], devoid of any support in the record”).


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.