This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Michael Berneche,


Filed April 1, 1997


Mansur, Judge


Ramsey County District Court

File No. K8961164

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

Peggy J. Birk, St. Paul City Attorney, Janet A. Reiter, Assistant City Attorney, 500 City Hall, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for Respondent)

Richard J. Coleman, 295 Marie Avenue East, West St. Paul, MN 55118 (for Appellant)

Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Mansur, Judge.



This is an appeal from a district court order denying a motion to withdraw a guilty plea. We conclude that because it would not impose a "manifest injustice" on the petitioner to serve his 30-day sentence in jail rather than on the Sentence to Service program, the district court acted within its discretion when it denied petitioner's motion to withdraw his guilty plea.


Michael Berneche pleaded guilty to driving under the influence of alcohol. The court sentenced Berneche to one year in the Ramsey County Correctional Facility for Men and imposed a $3,000 fine. The court stayed the sentence to probation for a period of two years on the condition that Berneche (1) commit no same or similar violations; (2) complete any treatment programs the probation department requires; (3) pay a $300 fine; and (4) serve 30 days. At the conclusion of the sentencing hearing, the court mistakenly authorized Berneche to participate in the Sentence to Service program in lieu of imprisonment, even though the judge knew that Berneche had been convicted of a felony. Following sentencing, the Department of Corrections declared Berneche ineligible for the Sentence to Serve program because he had been convicted of a felony.

Berneche moved to withdraw his guilty plea, arguing that it was conditioned upon assurances that he would receive Sentence to Service rather than imprisonment. The court denied Berneche's motion to withdraw his guilty plea, reasoning that it would not impose a "manifest injustice" on Berneche to require him to serve the 30 days in jail.

Berneche now appeals.


The final decision on a motion to withdraw a guilty plea "is left to the sound discretion of the trial court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion." Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).


Berneche argues that the court abused its discretion by not permitting him to withdraw his guilty plea after sentencing. Minnesota Rule of Criminal Procedure 15.05 permits a defendant to withdraw a guilty plea after sentencing when that withdrawal is necessary to correct a "manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. Berneche alleges that as part of the terms of the plea agreement, his attorney told him that he would be able to participate in the Sentence to Serve program.

"It is well settled that an unqualified promise which is part of a plea arrangement must be honored or else the guilty plea must be withdrawn." Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979) (citation omitted. On the other hand, "a solemn plea of guilty should not be set aside merely because the accused has not achieved an unwarranted hope." Schwerm v. State, 288 Minn. 488, 491, 181 N.W.2d 867, 868 (1970).

Our review of the record does not find an "unqualified promise" that is part of a plea agreement. Simply because defense counsel has made conclusory allegations that there was a sentencing agreement does not mean in fact and in law that there was one. Although the plea transcript demonstrates that Berneche, the court, and counsel assumed that Berneche would be eligible to participate in Sentence to Service, the transcript does not contain any promises by counsel or the court that Berneche would receive Sentence to Service in exchange for his guilty plea. If such a promise was made, then a withdrawal may or may not be necessary to correct a manifest injustice. The record, however, is inadequate to support the conclusion that in fact and in law there was a plea agreement regarding Berneche's sentence.


Berneche argues that because there was a mutual mistake of fact regarding the consequences of his plea, he should be allowed to withdraw it. Berneche argues that the district court should have "articulated that [he] could exercise the Sentence to Service option only if deemed eligible by the Probation Department."

As the Minnesota Supreme Court has stated on numerous occasions, there are three basic prerequisites to a valid guilty plea: it must be (a) accurate, (b) voluntary, and (c) intelligent (that is, knowing and understanding). State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991). The requirement that the plea be intelligent is designed to ensure that the defendant understands the charges, the rights being waived, and the consequences of the guilty plea. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).

We agree with Berneche's assertion that the court should have explained to him that he could participate in the Sentence to Service program only if the Department of Corrections determined that he was eligible. The court's failure to inform Berneche of this fact, however, does not constitute a "manifest injustice." See State v. Tuttle, 504 N.W.2d 252, 256 (Minn. App. 1993) (affirming district court's decision denying motion to withdraw guilty plea when defendant "did not produce evidence that overcame the previous strong evidence of guilt"). Our review of the record finds that there is sufficient evidence for the state to prove Berneche's guilt without difficulty.


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