This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-95-2612

State of Minnesota,

Respondent,

vs.

Steven P. Garcia

Appellant.

Filed June 4, 1996

Affirmed

Schumacher, Judge

Hennepin County District Court

File No. 95037164

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Steven P. Russett, Assistant Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Short, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

This appeal is from a judgment of conviction and sentence for attempted first-degree criminal sexual conduct. Minn. Stat.secs. 609.17, 609.342, subd. 1 (e)(i) (1994). Appellant Steven P. Garcia, who pleaded guilty, challenges the sentence imposed. We affirm.

FACTS

Garcia was charged with two counts of first-degree criminal sexual conduct for a sexual assault allegedly committed on May 1, 1995. The victim told police that Garcia had forced her to perform oral sex on him.

Garcia agreed to plead guilty to attempted first-degree criminal sexual conduct. The plea agreement called for a sentence of 81 months, which the parties understood to be at the top of the presumptive sentence range.

At sentencing, the prosecutor explained that the agreement was for a sentence of 81 months, but that an issue had arisen in the sentencing worksheet about a prior California conviction that had earlier been deemed a felony. Rather than resolve this issue, the prosecutor suggested that the court could reach the agreed-on 81-month sentence by departing upwards based on Garcia's prior criminal sexual conduct conviction(s). The defense attorney did not object to this and agreed that the plea bargain had been for an 81-month sentence. The trial court proceeded to pronounce the 81-month sentence, without giving any reasons for departure.

D E C I S I O N

1. Garcia argues that the trial court could not depart upward by eight months without giving reasons for the departure at sentencing. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (if no reasons for departure are stated on record at time of sentencing, departure will not be allowed). The supreme court, however, has recently held that a defendant, by agreeing to a sentencing departure, may waive his right to be sentenced under the guidelines. State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). The court stated: "We see no reason not to allow a defendant to agree to a departure as part of a plea bargain with the prosecutor." Id.

Garcia agreed on the 81-month sentence imposed by the trial court. The plea agreement initially contemplated a presumptive sentence. But defense counsel did not object when the prosecutor suggested that the court could reach the agreed-on 81-month sentence by departing upwards by eight months. The duration of the sentence was the essence of the agreement. Garcia implicitly agreed to the eight-month departure when it was suggested at sentencing as the way to reach the agreed-on duration. Under Givens, that agreement was a sufficient grounds for the departure.

2. Garcia argues that he should be allowed to withdraw his guilty plea because the 81-month sentence violated the plea agreement. See State v. Tyska, 448 N.W.2d 546, 549 (Minn. App. 1989) (if trial court rejects plea agreement, defendant is entitled to withdraw guilty plea). But, as discussed above, the 81-month sentence fulfilled the essential term of the plea agreement. Garcia's argument ignores his own implicit agreement to the departure at sentencing, and would effectively discourage plea agreements that are specific as to the sentence duration. Specificity as to duration should be encouraged, to reduce the risks of mutual mistake. Cf. State v. DeZeler, 427 N.W.2d 231, 235 (Minn. 1988) (parties' mutual mistake as to defendant's criminal history score entitled defendant to withdraw plea).

Affirmed.