This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of:

Charles Randel Ashman.

Filed May 4, 1999

Reversed and remanded; motion granted

Anderson, Judge

Hennepin County District Court

File No. P1-98-60220

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy J. Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)

Thomas Bennett Wilson III, Gayle Gaumer, Wilson Law Firm, 7600 France Avenue South, Suite 558, Edina, MN 55435 (for respondent Ashman)

William E. McGee, Chief Hennepin County Public Defender, Peter W. Gorman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401-2700 (amicus curiae)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.



The district court dismissed the petition to commit respondent Charles Ashman as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP) on the ground that it violated the terms of Ashman's 1991 plea agreement. Petitioner Department of Corrections appeals, contending that the parties to the plea agreement did not have authority to bind the department, that the record does not support the district court's determination that the parties intended to bind future petitioners, and that Ashman is not entitled to specific performance of the purported plea agreement. This court granted leave for amicus curiae Hennepin County Public Defender to file a brief. We reverse and remand.


Ashman had a history of sexually assaultive behavior resulting in three convictions. In 1991, he again engaged in sexual misconduct with a 13-year-old girl, and he was charged with second- and fourth-degree criminal sexual conduct.

The state made a plea offer on November 7, 1991. On November 8, Ashman submitted a plea petition in which he stated he would plead guilty to the lesser count of fourth-degree criminal sexual conduct, if the state would dismiss the second-degree criminal sexual conduct charge. In addition, Ashman would receive a 10-year sentence pursuant to Minn. Stat. § 609.1352 (1990), which has special sentencing provisions for patterned sex offenders, and the "court will not refer for judicial commitment." Ashman's public defender, Barbara Isaacman, reiterated the understanding that "the Court at the time of sentencing would not refer this matter for the possibility of judicial commitment [under Minn. Stat. § 609.1351 (1990)]." The prosecutor agreed that this was the understanding, and Ashman pleaded guilty accordingly.

Ashman's supervised release date from prison was May 30, 1998. On May 20, 1998, the Department of Corrections civil commitment referral coordinator filed a petition to commit Ashman as an SPP and SDP, which the county attorney approved for good cause. The petition did not cite any instances of criminal sexual conduct that occurred since Ashman's 1991 conviction.

On May 29, 1998, Ashman moved to dismiss the petition, contending that it violated the condition of his 1991 plea that the state would not refer him for judicial commitment. Based on the transcript of the felony plea and the petition to enter a guilty plea, the district court determined that the relevant agreement provided only that the court would not pursue civil commitment at the time of the sentencing, which it did not. It denied the motion.

Ashman filed another motion to dismiss on September 30, 1998. This time, public defender Isaacman, who had represented Ashman at the 1991 plea negotiation, testified[1] that the parties intended Ashman would never be subject to civil commitment unless he engaged in further sexual misconduct. She explained that the written plea agreement did not contain the full terms of the plea. The court found this indicated that although the parties were aware of several ways to begin a judicial commitment proceeding in 1991, they mentioned only one in the written plea petition either through error, omission, or haste. The court stated it had "serious reservations as to whether the prosecution has fulfilled its part of the plea agreement." Noting that in close cases, plea agreements should be construed in favor of defendants, the court found in this close case justice required the petition for commitment be dismissed.


Issues of law will be reviewed de novo on appeal. In re Pirkl, 531 N.W.2d 902, 907 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995). Issues of fact will not be reversed unless clearly erroneous. Minn. R. Civ. P. 52.01.

The primary issue in this case is whether the Hennepin County Attorney had the authority to bind the Department of Corrections to the 1991 plea agreement. Plea agreements have been analogized to contracts. State v. Spaeth, 552 N.W.2d 187, 194 (Minn. 1996). Because of constitutional implications in criminal proceedings, courts must add safeguards to ensure defendants receive "what is reasonably due in the circumstances." Id. (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971)).

There is no authority to bind one not a party to a contract when the person was not aware of the contract and did not consent to it. Manderfeld v. Krovitz, 539 N.W.2d 802, 806 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996). This principle has been applied to a plea agreement. State, Dep't of Pub. Safety v. House, 291 Minn. 424, 425, 192 N.W.2d 93, 95 (1971) (holding that county attorney did not have authority to bind Commissioner of Public Safety, who was not a party to criminal proceedings, to the plea agreement, and that condition in DWI plea agreement that defendant would not be subject to civil driver's license revocation proceedings by Commissioner of Public Safety was without force and effect). Id.

Ashman contends that because the state and the county attorney were parties to the 1991 plea agreement, the state may not, through the Department of Corrections, file a petition for commitment in violation of the plea agreement. In other words, Ashman contends that they were the same parties or that the county attorney had authority to bind the Department of Corrections.

In commitment cases, one of the parties to the proceeding is the petitioner. In re Bowers, 456 N.W.2d 734, 736 (Minn. App. 1990). The commitment statute provides generally that "[a]ny interested person may file a petition for commitment." Minn. Stat. § 253B.07, subd. 2 (1990).[2] The statute defined "interested person" as an "adult, including but not limited to a public official" and "the legal guardian, spouse, parent, legal counsel, adult child, next of kin, or other person designated by a proposed patient." Minn. Stat. § 253B.02, subd. 10 (1990). In cases in which the defendant was acquitted based on mental illness or mental deficiency under Minn. Stat. § 611.026 (1990), the county attorney is the petitioner. Minn. Stat. § 253B.07, subd. 2 (1990). Thus, while the county attorney may be the petitioner, this is not a requirement for a successful commitment. See Bowers, 456 N.W.2d at 736) (noting case in which father of proposed patient was petitioner and county was not party).

In a criminal proceeding, the county attorney represents the state. House, 291 Minn. at 425, 192 N.W.2d at 95. The county attorney also generally represents the petitioner in commitment proceedings. But this does not give the county attorney authority to handle civil matters with separate proceedings when there is no indication the state authorized the county attorney to represent the state in those proceedings. Id. at 425-26, 192 N.W.2d at 95 (ruling that county attorney in criminal DWI case did not have authority to bind Commissioner of Public Safety in civil implied consent proceeding).

The Department of Corrections, like the Department of Public Safety in House, is a state agency. See Minn. Stat. § 15.01 (1990) (listing state agencies including Department of Corrections and Department of Public Safety); Minn. Stat. § 241.01, subd. 1 (1990) (providing for creating of Department of Corrections and appointment of commissioner). While arising out of some of the same facts, the criminal matter and the civil commitment matter involve separate proceedings. See House, 291 Minn. at 425, 192 N.W.2d at 94-95 (noting same as to criminal DWI and civil implied consent proceedings). Further, a review of the petition shows that the petitioner was the civil commitment referral coordinator for the Department of Corrections, not the county attorney. The Department of Corrections and the county attorney representing the state in criminal proceedings are different parties.

Ashman also cites the county attorney's statutory authority to determine whether sufficient cause exists to file an SPP or SDP petition. Minn. Stat. § 526.10, subd. 1 (1990) (providing for commitment as psychopathic personality; sexually dangerous person commitment created in 1994 Minn. Laws 1st Spec. Sess. § 3). He contends that the county attorney exercised this authority in the 1991 plea agreement by agreeing not to seek commitment and that this precludes the county attorney from approving the 1998 petition for commitment for good cause. Although "[a]ny interested person" may file a petition for commitment, the statute has screening procedures in place to provide a review of petitions before they are filed. Generally, the prepetition screening team must approve petitions for commitment for conditions such as mental illness and chemical dependency. Minn. Stat. § 253B.07, subd. 1(a). When the team recommends a commitment, it must send a written report to the county attorney. Id., subd. 1(c). If the team does not recommend the petition, the interested person may apply directly to the county attorney, who will determine whether to proceed. Id., subd. 1(e). In a petition for commitment as an SPP or SDP, rather than submitting the matter to a prepetition screening team,

the facts shall first be submitted to the county attorney, who, if satisfied that good cause exists therefor, shall prepare the petition to be executed by a person having knowledge of the facts and file the same with a judge of the probate court * * * .

Minn. Stat. § 526.10, subd. 1.[3]

A county attorney's decision whether to accept a plea involves considerations that are different from a determination that good cause exists to file a petition. Factors relevant to the former may include avoiding trial, alleviating delay in disposing of other cases, using alternative correctional measures, or obtaining the defendant's cooperation with the police. Barnes v. State, 489 N.W.2d 273, 276 (Minn. App. 1992), review denied (Minn. Nov. 3, 1992). Determining whether good cause exists to file a petition requires an assessment of whether the person's condition and history indicates the factors for commitment were likely to be met. See Minn. Stat. § 526.09 (1990); State ex rel. Pearson v. Probate Court, 205 Minn. 545, 287 N.W. 297 (1939) (providing narrowing language to uphold constitutionality of psychopathic personality commitment statute), aff'd, 309 U.S. 270 (1940). Therefore, the county attorney's decision as to the 1991 plea does not preclude a determination of good cause for the petition in 1998.

Ashman contends that the district court, which had the authority to reject a plea, approved the plea agreement and determined that commitment was not appropriate, and its decision should be binding. See State v. Peterson, 533 N.W.2d 87, 89 (Minn. App. 1995) (holding that court must accept plea agreement before it becomes final). But if the agreement purports to bind one not a party, the court approval is of no effect. House, 291 Minn. at 425, 192 N.W.2d at 95.

Amicus Hennepin County Public Defender asserts that the plea agreement must be honored to "maintain public respect for the integrity of the state's criminal process." State v. Anderson, 520 N.W.2d 184, 188 (Minn. App. 1994). But if a plea is in violation of law, the proper remedy is not specific performance, but withdrawal of the plea. See State v. Garcia, 582 N.W.2d 879, 881-82 (Minn. 1998). Further, we are not convinced that the parties intended anything more than that the sentencing court would not forward a recommendation for commitment under Minn. Stat. § 609.1351 (1990), as indicated in the plea petition and in the transcript of the plea proceeding. The sentencing court did not make such a referral, indicating this plea condition was met.

Respondent's motion for leave to file a post-argument memorandum is granted.

Reversed and remanded; motion granted.

[1] Isaacman had been unavailable to testify at the time of the hearing on the first motion to dismiss.

[2] The version of the statutes in existence at the time of the plea will be cited; there do not appear to be substantive differences from the current version.

[3] In 1994, these provisions were recodified to Minn. Stat. § 253B.185 and the term "psychopathic personality" was changed to "sexual psychopathic personality." These changes were not meant to affect the substance of the law. 1994 Minn. Laws 1st Spec. Sess. §§ 4, 5(a).