may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kirk James Bartch, petitioner,
State of Minnesota,
Filed November 18, 1997
Concurring specially, Lansing, Judge
Polk County District Court
File No. K2-96-624
Hubert H. Humphrey, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Wayne H. Swanson, Polk County Attorney, Scott A. Buhler, Assistant Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)
Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Foley, Judge.[*]
Appellant challenges the district court's denial of his request to withdraw his guilty plea. We affirm.
Appellant Kirk Bartch was charged with five counts of felony forgery and five counts of offering a forged check for incidents occurring November 24 and 26, 1995. He was charged in a separate file with one count of felony forgery and one count of felony offering a forged check for incidents occurring between December 15, 1995 and January 22, 1996.
In an open plea with both sides given an opportunity to make sentencing recommendations, Bartch agreed to plead guilty to two counts of felony forgery, one for each file, in violation of Minn. Stat. § 609.631, subd. 2(1), 4(2) (1996) and Minn. Stat. § 609.631, subd. 2(1), 4(3)(a) (1996). In exchange for his plea, all other charges were dropped, and the prosecutor agreed not to recommend sentencing pursuant to the career offender statute, Minn. Stat. § 609.152, subd. 3 (1996). The district court sentenced Bartch to 24 months for one count and 120 months, under the career offender statute, for the other count. Bartch did not make a direct appeal, but petitioned for postconviction relief, requesting withdrawal of his guilty plea. The district court denied his petition, and this appeal followed.
A guilty plea may be withdrawn after sentencing if the request is pursuant to a timely motion, and the court determines that a manifest injustice will occur without withdrawal. Minn. R. Crim. P. 15.05, subd. 1. However, once a guilty plea is entered, a defendant does not have an absolute right to withdraw it. Perkins, 559 N.W.2d at 685.
The state argues Bartch waived any objections he might have had to the prosecutor's statements when neither he nor his attorney made any objections to the statements before the postconviction hearing. If a defendant fails to object to a violation or to bring it the attention of the district court, a defendant may waive his right to later object to the violation. Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996); see also State v. Witte, 308 Minn. 214, 215, 245 N.W.2d 438, 439 (1976) ("In the absence of any explanation, it seems unjust for defendant and his counsel to sit idly by without objection and, after finding out what the sentence is, to then cry foul."). Although failure to object generally results in a waiver, this court may review "plain error affecting substantial rights" Van Buren, 556 N.W.2d at 551; accord Minn. R. Crim. P. 31.02.
Neither Bartch nor his attorney made any objection to the prosecutor's statements prior to the postconviction proceedings. Despite this failure to object, we address the merits of appellant's argument to determine whether plain error exists and, if so, whether the plea agreement was violated by the prosecutor.
This issue arises because the record is clear the prosecutor made untoward and unwarranted comments on the record. At the plea hearing, the prosecutor stated that because of the plea agreement he would not "seek enhancement pursuant to the career offender provision even though the defendant's criminal history would qualify him for sentencing under that provision." He made a substantially similar statement in a memorandum to the court prior to sentencing. At the sentencing hearing, the prosecutor stated, In hindsight, Your Honor, I believe I made a bad deal in this matter by agreeing to eat the career offender statute. (emphasis added).
The state is only saved from a reversal because the record demonstrates that this would be an open plea, and thus, we find no substantial prejudice from the prosecutor's improper remarks. At the plea hearing, the defense attorney stated:
Basically this will be an open plea, Your Honor. It is anticipated that the defendant will receive an executed prison sentence. With regard to [the] plea agreement the state has agreed that it will not seek the career offender enhancement pursuant to [Minn. Stat. § 609.152, subd. 3 (1996)].
The prosecutor stated:
Your Honor, I would note as Mr. Arnason [Bartch's attorney] has indicated this is an open plea. I believe the guidelines would call for the defendant to receive a sentence of 24 and 18 months respectively for these two files. It's going to be the state's position at the time of sentencing that the defendant's conduct warrants a departure. I will be filing a memorandum prior to sentencing requesting a double durational departure from the guidelines, however as Mr. Arnason has indicated, I am not relying upon and will not seek enhancement pursuant to the career offender provision even though the defendant's criminal history would qualify him for sentencing under that provision.
The district court also explained:
That would be an open plea. The guideline sentence appears to be 24 months on the one and 28 months on the other. The state has agreed that they would not seek career criminal enhancement if you entered a plea, but that they are going to request that the court do a double durational departure from the guidelines.
Finally, in questioning Bartch at the plea hearing, the prosecutor asked:
You understand that in exchange for your plea you will be receiving an executed prison sentence, however I've agreed not to seek enhancement pursuant to the career offender provision, but you do recognize that I am going to be asking the court to impose a sentence of double the presumptive guideline sentence in this matter?
Although the prosecution made this a close issue by putting in the record, "I believe I made a bad deal * * * ," we affirm the district court's decision. This statement, along with the prosecutor's other statements regarding the career offender statute, was not a violation of an essential element of the plea; the prosecutor fulfilled the plea agreement by not recommending sentencing under the career offender statute. Thus, we cannot say plain error exists here. But we look with disfavor on the prosecutor's comments on the record. It is unprofessional, as an officer of the court, to make an agreement with defense counsel and his client that you are going to recommend a particular sentence and not recommend another particular sentence, and then put in the record a statement that you acted unprofessionally on behalf of the state by making "a bad deal" for the state.
Appellant had every right to be upset with the prosecutor's comments. But the sentence that followed cannot be said to be a denial of the plea agreement because, as previously stated, the sentence was open to the court. The record is clear that although the prosecutor was not going to recommend career enhancement, the district court had a right to retain that option. With hindsight, had the district court simply departed upward, we would not have this issue. This case again spells out the inherent problems in plea agreements where the court tries to reserve the right to both reject the plea agreement and deny the defendant the right to withdraw his plea of guilty and stand trial.
Bartch contends that he was not told that he could be sentenced to 120 months; therefore, his plea was not knowing and intelligent. Bartch also alleges that he reasonably believed 56 months was the maximum sentence he could receive.
At the postconviction hearing, Bartch's former attorney, Arnason, stated that he was sure that at some point he had told Bartch that 120 months was the maximum sentence. At no point did Arnason state that he specifically remembered telling Bartch the possible penalties. Instead he stated:
I can't imagine that in my representation of him that I didn't mention [the 120 month maximum sentence] at least on one occasion because I've been a public defender for some time and I do make it a practice to -- at least in early stage in the proceeding * * * to review with the client the complaint, the maximum penalties that could be imposed, and I generally do that at a relatively early stage. I would imagine that it probably was way back in the early stages of my representation of Mr. Bartch, possibly as early as January  when I opened up the file that I made those representations with regard to the maximum penalty to [him].
Arnason also indicated that he could not say for sure that Bartch actually understood he could receive the maximum sentence.
Although it is not clear from the record whether Bartch was informed of the maximum possible sentence by his attorney, the record does indicate that the district court informed Bartch at his plea hearing that a ten-year prison term was the maximum penalty. Further, after the postconviction hearing, the district court found that Bartch's attorney had apprised him of the maximum sentence and apprised him that the court would make the final sentencing decision. The postconviction court also determined that the district court had informed Bartch
that the length of his sentence was "open," that both his attorney and the prosecutor were free to make recommendations, and that the prosecutor had agreed to dismiss the additional 10 counts, to not ask for sentencing as a "career offender," and to recommend a double duration departure.
The postconviction court noted that Bartch admitted on the record that no one had promised him anything else. In concluding, the court found that Bartch had made his pleas "knowingly, intelligently, and voluntarily."
A defendant may withdraw a plea if the district court rejects a sentencing agreement. State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988). If the court rejects a recommendation agreement, however, a plea may be withdrawn only if the defendant was under the mistaken belief that the plea could be withdrawn or if some other reason exists for withdrawal. Id. In Perkins, the supreme court denied Perkins' request to withdraw his guilty plea after finding he signed a plea petition which explained that the attorneys would only be recommending sentences and finding his testimony indicated he understood the attorneys' sentencing recommendations were nonbinding on the court. 559 N.W.2d at 688-89. The supreme court stated, "Perkins merely had an `unwarranted hope' that the court would follow the recommendation." Id. at 689.
Here, it is apparent that the plea agreement was not a sentencing agreement, but rather a "recommending agreement" which the court had the right to render meaningless, and did. Trial judges, defense counsel, and prosecutors are strongly advised to make a complete and thorough record, and, most importantly, make sure the defendant understands when the plea agreement is nothing more than a promise by the state that it will make a recommendation to the trial court, which the trial court is free to disregard and then deny the defendant his normal right to withdraw his plea of guilty and stand trial. In his affidavit to the district court, Bartch conceded that Arnason had informed him that despite the attorneys' recommendations, the court would ultimately decide his sentence. In testifying at the postconviction hearing, Arnason confirmed that he explained to Bartch that recommendations were going to be given to the court, but no actual sentencing agreement existed.
This is a close case. It is conceivable that Bartch might not have understood the distinction between a sentencing agreement and an agreement to make a sentencing recommendation. It is also possible, based on his former attorney's testimony at the postconviction hearing, that the attorney did not ensure Bartch understood that he could be sentenced to 120 months. Ultimately, Bartch was informed of the possible sentence by the district court prior to sentencing, and, similar to Perkins, he was aware that the judge would make the final sentencing decision. Bartch ended up with an unfulfilled hope of receiving a "recommended" sentence. See Perkins, 559 N.W.2d at 689 (holding that defendant's "unwarranted hope" that sentencing recommendation would be followed did not require court to allow guilty plea withdrawal).
We conclude the district court did not abuse its discretion by finding Bartch's plea was accurate, voluntary, and intelligent, nor did it abuse its discretion by refusing to permit Bartch to withdraw his plea.
LANSING, Judge (concurring specially).
I concur in the result.
[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.