This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-827

State of Minnesota,

Respondent,

vs.

Anthony Marcus Howe,

Appellant.

Filed December 17, 1996

Affirmed

Amundson, Judge

Concurring Specially, Randall, Judge

Hennepin County District Court

File No. 95026687

Jerry Strauss, Marc S. Berris, Strauss & Associates, 250 Second Avenue South, Suite 200, Minneapolis, MN 55401-2169 (for appellant)

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant Hennepin County Attorney, C-2100 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

Hubert H. Humphrey, III, Minnesota Attorney General, 102 State Capitol, St. Paul, MN 55155 (for respondent)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge and Randall, Judge.

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

AMUNDSON, Judge

Appellant Anthony Marcus Howe challenges the district court's decision to allow the state to withdraw from a negotiated plea agreement, arguing that the state's withdrawal from the plea negotiation offer after Howe performed under the agreement violated the plea agreement. We affirm.

FACTS

On March 28, 1995, appellant Anthony Marcus Howe was arrested for possession of 31 grams of cocaine. Howe was charged with first degree sale of a controlled substance and first degree possession of a controlled substance, a violation of Minn. Stat. § 152.021. This offense and a prior charge of third degree assault were consolidated for purposes of judicial economy. Howe pleaded not guilty to all charges and a jury trial was scheduled.

On August 21, 1995, Howe appeared for trial. Before this appearance, Howe and the state reached an agreement whereby he would enter a plea of guilty to the charge of third degree assault and to an amended charge of third degree controlled substance crime in exchange for his cooperation with Officer Dole of the Northwest Metro Task Force. Howe was to turn over his drug source in New York and cooperate with Officer Dole in the prosecution of this source.

On December 14, 1995, Howe returned to court to have his pleas formally accepted and imposed. However, the state, alleging that Howe failed to cooperate with Officer Dole sufficienty, argued that the plea agreement was breached and requested that the court not accept his guilty pleas. To show Howe's lack of cooperation, the state offered a letter from Officer Dole outlining the information Howe provided. The court permitted the state to withdraw the negotiated plea agreement and the matter was rescheduled for trial.

Howe filed a motion seeking an order to compel the state to honor the plea agreement. In this motion, he argued that he had cooperated with Officer Dole and thus, was entitled to specific performance of the plea agreement. Howe claimed that he provided information about his drug connections according to the plea agreement and that Officer Dole's letter is evidence of his cooperation.

After hearing arguments from both sides and the testimony of Officer Dole, the trial court ruled that it would not accept the plea. The court stated that Officer Dole's letter was evidence of Howe's noncooperation.

On February 8, 1996, the case came before the court for trial. By agreement of both parties, a jury trial was waived and an amended charge of first degree attempted controlled substance crime was submitted to the court on stipulated facts. The trial court found Howe guilty of first degree attempted controlled substance crime. Howe pleaded guilty to the charge of third degree assault. This appeal followed.

D E C I S I O N

Trial courts may accept plea agreements when the interest of the public in the effective administration of justice would thereby be served. Minn. R. Crim. P. 15.04, subd. 3(2). Whether the defendant has given cooperation that may result in the successful prosecution of other criminal offenders is an appropriate consideration for determining the acceptance of a plea. Minn. R. Crim. P. 15.04, subd. 3(2)(e). However, a prosecutor's violation of an essential element or inducement in a plea agreement, and a timely objection to the violation, entitles a defendant to a remedy, such as resentencing with specific performance of the plea agreement or an opportunity to withdraw the plea. State v. Ferraro, 403 N.W.2d 845, 848 (Minn. App. 1987) (citing Santobello v. New York, 404 U.S. 257, 262-63, 92 S. Ct. 495, 498-99 (1971)).

In the plea agreement, Howe was obligated to "turn over his source in New York and cooperate with Officer Dole in us [the state] being able to prosecute this source." In return for this cooperation, Howe would plead guilty to a crime of lesser degree. Determining there was sufficient evidence to support a finding of noncooperation by Howe, the trial court denied his motion for specific performance of the plea agreement. There is adequate support in the record for the trial court's denial of specific performance.

Contrary to the plea agreement, appellant failed to cooperate fully with Officer Dole. Howe met with Officer Dole on several occasions in order to fulfill his part of the plea agreement and identified three targets. The targets Howe identified were not useful to Officer Dole, as each target was either already under investigation or outside of Officer Dole's jurisdiction. Howe identified a person as his New York source and agreed to set up a drug purchase so that he could be arrested. However, Officer Dole believed that Howe did not truly identify his New York source, as the individual he identified was a small drug dealer, incapable of being Howe's New York source. Officer Dole also thought the set up drug purchase was an unacceptable operation.

Howe is only entitled to specific performance of the plea agreement upon the violation of the agreement by the state. Without Howe's cooperation, the state has not violated any element or inducement of the plea agreement by withdrawing. Thus, Howe is not entitled to specific performance and the trial court did not err in allowing the state to withdraw from the negotiated plea agreement.

Affirmed.

RANDALL, Judge (concurring specially).

I concur just in the result.