STATE OF MINNESOTA
IN SUPREME COURT
Court of Appeals
Took no part, Anderson, Russell A., J.
State of Minnesota, petitioner,
Filed: January 30, 2003
Office of Appellate Courts
Erwin Lanell Lewis,
S Y L L A B U S
1. The rule announced in State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), that an upward departure in a criminal sentence cannot be based solely on a plea agreement, applies to a case that was on direct appeal at the time Misquadace was decided.
2. If the district court, on remand under Misquadace, finds that the sentence agreed upon in a plea bargain must be materially reduced, it may reconsider the entire plea agreement.
Considered and decided by the court en banc without oral argument.
Affirmed in part, reversed in part and remanded.
O P I N I O N
Respondent Erwin L. Lewis (“Lewis”) was charged with one count of first-degree criminal sexual conduct. Lewis entered into a plea agreement in which he pleaded guilty to a reduced charge of second-degree criminal sexual conduct in exchange for a stayed 86-month sentence and 25 years of probation, an upward durational departure of more than four times the presumptive sentence. The court of appeals affirmed Lewis’ conviction but remanded to the district court for resentencing consistent with this court’s holding in State v. Misquadace, which was expressly made applicable to “pending” cases. We affirm the court of appeals’ conclusion that Lewis’ case was “pending” at the time of our decision in Misquadace but reverse the court of appeals’ decision to limit the remand to only the sentencing component of the plea agreement.
On May 31, 2000, Lewis’ niece by marriage
accused him of sexually assaulting her during a family gathering in December
1995. She was twelve years old at the
time of the assault. After an
investigation, the Beltrami County Attorney charged Lewis with first-degree
criminal sexual conduct. On June 20,
2001, Lewis agreed to plead guilty to an amended charge of second-degree
criminal sexual conduct in exchange for a stayed 86-month sentence and
probation for 25 years. Under the 2001
Minnesota Sentencing Guidelines, the presumptive stayed sentence for a
second-degree criminal sexual conduct
conviction is 21 months. Minnesota Sentencing Guidelines IV. Lewis later moved the district court to withdraw his guilty plea, arguing that he was innocent but had entered the plea because he lacked the financial resources and family support to endure a jury trial. The court denied Lewis’ motion because he failed to present any evidence that his plea was involuntary. On July 27, 2001, the court sentenced Lewis in accordance with the plea agreement to 86 months stayed and probation for 25 years. The court gave no reasons to support the upward durational departure except the plea agreement itself.
Lewis filed a notice of appeal on October 17, 2001. At that time, this court was in the process of reviewing the court of appeals’ decision in State v. Misquadace, 629 N.W.2d 487 (Minn. App. 2001), rev. granted (Minn. Sept. 25, 2001). In Misquadace, the defendant agreed to plead guilty to four offenses under a plea agreement that contemplated four separate sentences, each containing some type of departure from the sentencing guidelines. 629 N.W.2d at 488-89. At his sentencing hearing, Misquadace attempted to withdraw his guilty plea, but the district court denied his motion and sentenced him in accordance with the plea agreement. Id.; State v. Misquadace, 644 N.W.2d 65, 67 (Minn. 2002).
Misquadace appealed and argued that the district court failed to identify any substantial or compelling reasons for departing from the sentencing guidelines on two of his sentences. Misquadace, 629 N.W.2d at 489. The court of appeals reversed and remanded, holding that the district court does not have the discretion to depart from the sentencing guidelines solely because the defendant agrees to do so in a plea agreement. Id. at 492. Additionally, the court of appeals required that the district court, on remand, “disclose the substantial and compelling circumstances that support the departure.” Id. We granted review and affirmed the court of appeals, holding that all departures from the sentencing guidelines must be supported by something more substantial and compelling than the plea agreement alone. Misquadace, 644 N.W.2d at 72. We applied this new rule of law to Misquadace’s case and stated that it would apply to all “pending and future cases.” Id.
Following Misquadace’s lead, Lewis argued on appeal that the district court erred by imposing a sentence of more than four times the presumptive sentence based solely on his plea agreement. State v. Lewis, No. C7-01-1788, 2002 WL 1275790, at *1 (Minn. App. June 11, 2002). Citing our decision in Misquadace, the court of appeals affirmed Lewis’ conviction but remanded the sentencing component of the plea agreement to the district court for resentencing pursuant to the sentencing guidelines. Lewis, 2002 WL 1275790, at *2. The court of appeals concluded that the rule pronounced in Misquadace applied to Lewis’ appeal because it was a “pending” case at the time of the Misquadace opinion. Lewis, 2002 WL 1275790, at *4.
The state appealed, arguing that the rule in Misquadace does not apply to Lewis’ case because it was not “pending” at the time of the Misquadace opinion. The state argued alternatively that even if Misquadace applies, the court of appeals erred in remanding only the sentencing component of the plea agreement, which would allow Lewis to retain the benefit of a reduced charge while avoiding the burden of the agreed sentence. The state suggests that if the district court determines there are no independent grounds to support the sentence, it should be permitted to reconsider the entire plea agreement and, if it concludes that the reduced sentence would materially alter the plea bargain, to vacate the conviction and plea, reject the plea agreement and reinstate the original charge. We granted review.
The state first argues that the rule in Misquadace does not apply retroactively to Lewis. We review de novo the question whether and to what extent our precedent should be given retroactive effect. See, e.g., State v. Costello, 646 N.W.2d 204, 207 (Minn. 2002).
In Misquadace, we expressly limited its retroactive application to “this case [Misquadace] and to pending and future cases.” 644 N.W.2d at 72 (emphasis added). The state interprets “pending” to be restricted to cases that had not yet reached the stage in the proceedings that Misquadace addressed, namely sentencing. Because Lewis had been sentenced before Misquadace was filed, the state contends that Lewis’ case was not “pending” at that time.
While we did not expressly define “pending” in Misquadace, we have previously discussed what constitutes a “pending” case in both civil and criminal contexts. In a civil context, we held that a statutory amendment that was to apply to “pending” cases was applicable to a case that was not final because it was on appeal, stating that “[a]n appeal suspends a judgment and deprives it of its finality, and that lack of finality continues until the appeal is dismissed or until the appellate court has pronounced its decision.” Holen v. Minneapolis-St. Paul Metro. Airports Comm’n, 84 N.W.2d 282, 287 (Minn. 1957). We found this rationale even more compelling in criminal cases because to apply a new rule to the case in which it was announced but to not apply it to other cases that were then on direct appeal “would be to treat similarly situated criminal defendants differently.” State v. Baird, 654 N.W.2d 105, 112 (Minn. 2002) (citing Griffith v. Kentucky, 479 U.S. 314, 327 (1987)); see also State v. Coolidge, 282 N.W.2d 511, 514-15 (Minn. 1979) (applying a statutory amendment that mitigated punishment for criminal sexual conduct to acts committed by defendant before its effective date because no final judgment had been entered); State v. Hamilton, 289 N.W.2d 470, 474-75 (Minn. 1979) (vacating a sentence based on a criminal statute that was repealed while the defendant’s conviction was on appellate review).
Lewis timely appealed the district court’s judgment of conviction and was awaiting a decision from the court of appeals at the time of our decision in Misquadace. His case, therefore, was not yet final and was “pending,” in the sense that we have generally used that term. Additionally, in Misquadace, we did not adopt a purely prospective application of the rule because we applied it to Misquadace even though he had entered his plea almost two years before our decision. It would seem anomalous to apply the rule to Misquadace’s plea, made on September 27, 2000, but not to apply it to Lewis’ plea, made almost a year later on June 20, 2001.
Accordingly, we conclude that Lewis, whose direct appeal was pending before the court of appeals at the time of our decision in Misquadace, is entitled to the application of the rule of law announced in Misquadace.
The state next argues that, if we apply the rule in Misquadace to Lewis, we should not allow him to retain the benefit of the reduced charge component of the plea agreement if he obtains a reduction of the sentence component of the same plea agreement. The state submits that if the district court determines that there are no grounds to support the agreed sentence on the reduced charge, the court should vacate Lewis’ guilty plea and reinstate the original charge.
The court of appeals disagreed. It construed Misquadace to only allow the district court to modify the sentence, while the conviction was to remain intact:
On May 9, 2002, the Minnesota Supreme Court released State v. Misquadace * * * and analyzed the same issue – can a defendant, who has voluntarily plea bargained for a fixed sentence outside the Minnesota Sentencing Guidelines, come back and appeal the sentence but not have to withdraw completely from the plea agreement and not stand trial on all the original charges, including those that may have been dropped as part of the plea agreement? We can only read Misquadace to say that it is so.
Lewis, 2002 WL 1275790, at *2 (citation omitted).
We conclude that the court of appeals reads Misquadace too narrowly. Misquadace did not specifically address the question whether the district court, on remand, can reconsider the conviction component of a plea agreement if it finds no grounds for departure from the sentencing guidelines on the sentencing component of the same plea agreement. We agree with the state’s argument that these two components are interrelated and that the district court should be free to consider the effect that changes in the sentence have on the entire plea agreement.
We hold that where the district court finds no compelling or substantial circumstances supporting an upward departure in the sentence that was agreed upon in a plea agreement, it may consider motions to vacate the conviction and the plea agreement.
Affirmed in part, reversed in part and remanded.
ANDERSON, Russell A., J., took no part in the consideration or decision of this case.
 The Minnesota Sentencing Guidelines consider two factors in assigning a presumptive sentence to a particular conviction: offense severity and criminal history. Minnesota Sentencing Guidelines II. Because all of the elements of Lewis’ crime fall within the statutory definition of second-degree criminal sexual conduct and Lewis had no prior criminal record, his presumptive sentence in this case is 21 months. See Minn. Stat. § 609.343, subd. 1(a) (2002).
 In Griffith, the United States Supreme Court defined “final,” for purposes of retroactivity, as “a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or * * * finally denied.” 479 U.S. at 32 n.6.
 A motion to vacate the conviction and the plea agreement may raise double-jeopardy concerns. We do not address those concerns because the parties have not argued them and the district court has not had an opportunity to consider them.