State of Minnesota, Respondent, vs. Rebecca M. Kendig, Appellant. A06-1804, Court of Appeals Unpublished Decision, December 4, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Rebecca M. Kendig,


Filed December 4, 2007


Crippen, Judge*



Ramsey County District Court

File No. K3-05-1422

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


Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)


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


            Considered and decided by Toussaint, Chief Judge; Worke, Judge; and Crippen, Judge. 

U N P U B L I S H E D   O P I N I O N


            Appellant Rebecca Kendig challenges her conviction of identity theft, arguing that the district court erred by failing, sua sponte, to permit her to withdraw her guilty plea, after it became clear that the probationary sentence first recommended would not be permitted under the sentencing guidelines.  Because appellant had been informed that the sentence recommendation was impermissible under the guidelines and had multiple opportunities to withdraw her plea before being sentenced, there is no basis for her claim of error, and we affirm.


            Appellant pleaded guilty to one count of identity theft, Minn. Stat. § 609.527, subd. 2 (2004), on June 14, 2005, after the state agreed to recommend a disposition of probation with a cap on jail time of 120 days.  According to the transcript of the plea hearing, the prosecutor said, “The defendant will plead guilty as charged.  Joint recommendation of a stay of execution of sentence, if it is not a commit.  The state is capping its jail time recommendation at 120 days.”  The district court stated, “The other thing is that 120-day cap only works if the guidelines call for a probation term.  If the guidelines call for a prison term, then you’ll get what the guidelines call for.”  Appellant responded that she understood and had no questions.

             Three months later, in September 2005, appellant appeared for sentencing.  According to the presentence investigation, she had three criminal history points and the charge itself was level VIII under the sentencing guidelines, requiring a mandatory commitment to prison for 78 months.  Upon defense counsel’s objection, the court pointed out that the sentencing recommendation, according to his notes and the prosecutor’s notes, was contingent on the guidelines permitting probation, rather than requiring a mandatory prison term.  Sentencing was continued so that defense counsel could review the transcript of the plea hearing.

            Sentencing was continued several times, in part because appellant was sentenced in Wisconsin on another charge, and in part because she voluntarily committed herself for mental health issues.  In October 2005, appellant’s attorney withdrew and the judge recused himself after appellant raised unfounded allegations that there had been improper sexual contact between them and her child.   

             In January 2006, a public defender was appointed to represent appellant, and the chief judge assigned himself to the case.  After another continuance from a January 2006 sentencing hearing, appellant was sentenced on June 27, 2006.  By that time, appellant had a criminal history score of four and the presumptive sentence was 88 months in prison.  Sometime in the interim, the prosecutor and defense counsel agreed to jointly recommend a 41-month sentence, which would be a downward durational departure.  Because the guidelines sentence increased from 78 months to 88 months, based on appellant’s increased criminal history score, the prosecutor requested a 44-month sentence.  The court stated that it would abide by the second negotiated agreement for 41 months.  The court accepted appellant’s guilty plea and sentenced her to 41 months in prison and restitution.  Neither appellant nor her counsel objected. 


            Withdrawal of Plea

“In its discretion the court may also allow the defendant to withdraw a plea at any time before sentence if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of the motion . . . .”  Minn. R. Crim. P. 15.05, subd. 2.   Similarly, “upon a timely motion,” the court is to allow withdrawal at any time if it is proven that this is needed “to correct a manifest injustice.”  Id., subd. 1.  The district court’s decision on a motion to withdraw a plea is reviewed for an abuse of discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998). 

A district court may find a plea manifestly unjust if the plea is not “accurate, voluntary, and intelligent[.]”  See Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997) (defining “manifest injustice”).  A plea must be voluntary so that a defendant is not pleading guilty because of improper pressures.  State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994).  A plea must be intelligent so that the defendant “understands the charges, the rights being waived and the consequences of the guilty plea.”  Perkins, 559 N.W.2d at 689 (quotations omitted). 

A defendant who pleads guilty in exchange for an agreed and definite sentence is entitled to withdraw the guilty plea if the state fails to abide by its promise.  Id. at 687.  But if the guilty plea is made in exchange for a recommendation of a sentence, the defendant may not withdraw the plea “unless the defendant can establish either (a) that the defendant mistakenly believed he or she could withdraw the plea if the sentencing court rejected the recommendation, or (b) that there is some other ground for withdrawal.”  Id.; see State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988).  A defendant’s belief that the guilty plea could be withdrawn if the court refused to accept the state’s recommendation must be based on more than “an unwarranted hope.”  Perkins, 559 N.W.2d at 689. 

A guilty plea may also be withdrawn if it is based on a mutual mistake by both the state and the defendant as to criminal history score and guidelines sentence.  See DeZeler, 427 N.W.2d at 234; see also State v. Benson, 330 N.W.2d 879, 880 (Minn. 1983).  But when it is clear before sentencing that the presumptive sentence is an executed sentence and a stayed sentence is not permitted under the guidelines, and defendant and defense counsel stand mute, there is no mutual mistake that would permit withdrawal of the plea.  State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983).

Here, appellant knew for at least nine months that a probationary sentence would not be permitted under the guidelines and that the guidelines sentence was 78 months.  She made multiple appearances during this nine-month period, with counsel and before sentence was imposed, and yet she raised no objections to the sentence.  The final sentencing agreement was submitted without objection to the prior plea.  Under these circumstances, the district court had no duty, sua sponte, to instruct or permit appellant to withdraw the plea, either as a matter of fairness or justice.  See id.  

Reaffirmation of Plea

Appellant also asserts that the district court erred by failing to require her to reaffirm her guilty plea before imposing sentence.  Before the district court accepts a guilty plea, a defendant must be questioned under oath in order to determine whether the plea is voluntary, intelligent, and accurate.  Minn. R. Crim. P. 15.01; Perkins, 559 N.W.2d at 688.  In felony matters, sentencing may not occur until after a presentence investigation is done; a sentencing hearing, during which parties may raise objections to a proposed sentence or submit additional material, can be held prior to sentencing.  Minn. R. Crim. P. 27.03.  Defendant’s presence is required at the sentencing.  Id.  The district court must impart certain information during sentencing.  Id. 

The rules state no requirement that the defendant reaffirm his or her guilty plea in the event of delays preceding a lawful sentencing.  If the court has properly determined during the plea hearing that the defendant has entered a voluntary, intelligent, and accurate plea, and the defendant makes no attempt to withdraw that plea, there is no requirement suggesting that the court must reaffirm the plea.



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