This opinion will be unpublished and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

C2-97-2373

State of Minnesota,

Appellant,

vs.

Kristi Louise Zappa,

Respondent.

Filed July 7, 1998

Reversed and remanded; motion granted

Peterson, Judge

Wright County District Court

File No. K297248

Hubert H. Humphrey III, Attorney General, Jon. C. Audette, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; Wyman A. Nelson, Wright County Attorney, Courthouse Room 150, 10 Northwest Second Street, Buffalo, MN 55313 (for appellant)

Scott S. White, 327 Main Street, Elk River, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Shumaker, Judge.

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

PETERSON, Judge

Appellant State of Minnesota argues that the district court erred in staying adjudication of a criminal charge against respondent Kristi Louise Zappa. We reverse and remand.

FACTS

Zappa was charged with conspiracy to commit a controlled substance crime in the first degree in violation of Minn. Stat. 152.021 (1996). The charge arose out of Zappa's purchase of four thousand ephedrine tablets. Zappa gave the tablets to another person who was later convicted of conspiring to manufacture methamphetamine.

Pursuant to a plea agreement, Zappa entered an Alford plea[1] to an amended charge of conspiracy to commit a controlled substance crime in the fourth degree in violation of Minn. Stat. 152.024 (1996). Under the plea agreement, the state agreed to recommend that imposition of sentence be stayed and that Zappa serve no more than 15 days in jail, and Zappa was free to argue for a stay of adjudication, which the state would oppose.

Zappa argued to the district court that special circumstances warranted a stay of adjudication. The court, over the state's objection, stayed adjudication.

D E C I S I O N

I.

In State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996), the supreme court concluded that a decision to stay adjudication of a criminal charge is within the "inherent judicial power" of the district court.

In State v. Foss, 556 N.W.2d 540, 540 (Minn. 1996), the supreme court explained that its holding in Krotzer was

that if "special circumstances" are present, then a trial court may stay an adjudication of guilty over the prosecutor's objection without violating the separation-of-powers doctrine.

The supreme court has provided little guidance in determining whether the circumstances of an individual case are special circumstances warranting a stay of adjudication. Thus far, only the circumstances in Krotzer have been determined by the supreme court to be such special circumstances that a stay of adjudication was warranted. But in Foss, the supreme court explained:

It was not our intention that mere disagreement by the trial court with the prosecutor's exercise of the charging discretion would constitute "special circumstances." Rather, it was our intention that the inherent judicial authority recognized in [Krotzer] be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor's clear abuse of discretion in the exercise of the charging function.

Id. at 541.

Thus, under Krotzer and Foss, the district court could stay adjudication only to avoid an injustice resulting from the prosecutor's clear abuse of discretion in deciding to charge Zappa.

Zappa argues that the special circumstances that make a stay of adjudication appropriate are: (1) she entered an Alford plea; (2) her sole conduct was to purchase a quantity of ephedrine that was legal for her to purchase; and (3) she has no prior criminal history.

These are not special circumstances that make a stay of adjudication necessary to avoid an injustice resulting from the prosecutor's clear abuse of discretion in deciding to charge Zappa. By entering an Alford plea, Zappa pleaded guilty to the charged offense while maintaining her innocence because she reasonably believed, and the record established, that the state had sufficient evidence to obtain a conviction. See State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (defendant may plead guilty while maintaining innocence if defendant reasonably believes, and record establishes, that state has sufficient evidence to obtain conviction). A stay of adjudication was not necessary to validate Zappa's claim of innocence.

Similarly, the fact that Zappa's sole conduct was to legally purchase ephedrine does not make a stay of adjudication necessary to avoid an injustice. By entering her Alford plea, Zappa acknowledged that although she legally purchased the ephedrine, the record established that the state had sufficient evidence to prove that she made the purchase under circumstances that linked her to the use of the ephedrine to manufacture methamphetamine.

Finally, the fact that Zappa has no prior criminal history does not make a stay of adjudication necessary to avoid an injustice. In Foss, the supreme court stated:

The case appears to be a typical case of misdemeanor assault. To the extent that the assault was less serious than the typical case of misdemeanor assault, the trial court was free to be lenient in sentencing the defendant, as by staying imposition of sentence with minimal conditions.

Foss, 556 N.W.2d at 541. To the extent that Zappa's minor role in the offense and the fact that she had no criminal record constituted mitigating circumstances, the district court was free to impose a lenient sentence. But it was not necessary to stay adjudication to avoid an injustice.

Zappa also argues that the state waived its right to object to a stay of adjudication when it agreed in the plea agreement that it would oppose a stay of adjudication, but would leave the decision whether to grant a stay up to the district court. Zappa contends that the state agreed that although it was opposed to a stay of adjudication, it would not assert an objection to a stay before the district court. Zappa's argument is without merit. We see no basis for construing the state's agreement to mean that although it would remain opposed to a stay of adjudication, it would not state its opposition to the district court.

II.

Zappa moved for an award of attorney fees and expenses incurred in defense of this appeal. Minn. R. Crim. P. 28.04, subd. 2(6), provides that a defendant forced to respond to a pretrial appeal by the state is entitled to reasonable attorney fees and costs. We grant Zappa's motion and award her $2000.

Reversed and remanded.

[1] See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970).