STATE OF MINNESOTA

IN SUPREME COURT

C3-96-1173

State of Minnesota,

Respondent,

vs.

Billy Ray Thomas,

Appellant.

O R D E R

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED (1) that the petition of the State of Minnesota for further review be, and the same is, granted and (2) that the unpublished decision of the court of appeals filed September 17, 1996 in this case be, and the same is, reversed and the case remanded to the district court for further proceedings consistent with this order.

Dated: January 14, 1997

BY THE COURT:

A.M. Keith
Chief Justice

M E M O R A N D U M

Defendant has a long history of physically abusing the victim in this case, L.S. His prior record includes convictions dated October 29, 1991, April 9, 1993, August 9, 1993, and September 29, 1994, for assaults inflicted upon the victim. This case arose from three separate behavioral incidents: one on February 16, 1994, one on February 25, 1994, and one on January 29, 1995. The latter offense, which resulted in a charge of attempted first-degree murder and other charges, was allegedly committed while charges were pending in connection with the incidents dated February 16, 1994, and February 25, 1994.

In May of 1995 jury selection began in connection with the trial of the charges arising from the two 1994 incidents. It was then that the prosecutor and defense counsel reached a plea agreement allowing defendant to plead guilty to one count of assault in the first-degree in connection with the 1995 incident and one count of assault in the second degree in connection with the February 16, 1994 incident, with all the other counts in connection with the above-related incidents being dropped as well as counts in another incident being dropped.

The parties apparently believed that the Sentencing Guidelines permitted consecutive sentencing without the trial court having to give any reasons therefor. That understanding was stated for the record. The parties also indicated that they contemplated the imposition of an aggregate sentence of 179 months in prison, 158 months for the assault in the first degree and 21 months consecutive for the assault in the second degree. At the sentencing hearing, the defendant's attorney expressly asked the trial court to "sentence [defendant] consistent with the plea bargain, which is simply 158 months, plus 21 months consecutive, for a total of 179 months." The trial court proceeded to impose the aggregate sentence of 179 months. Defendant did not appeal his conviction or sentence. However, he subsequently sent a letter to the judge asking that the judge make the sentences run concurrently rather than consecutively, pointing to the fact that at the time in question consecutive sentencing was not "permissive" in this situation under the Sentencing Guidelines. The trial court formally denied defendant's request. Subsequently, the state public defender, representing defendant, again asked the district court to resentence defendant. The district court denied the motion, stating that "This original sentence was part of a plea bargain * * *."

The court of appeals distinguished this case from our recent decision in State v. Givens, 544 N.W.2d 774 (Minn. 1996), which held that a criminal defendant may waive his right to receive a sentence according to the Sentencing Guidelines. The court of appeals simply interpreted the agreement in this case as an agreement that defendant would receive the presumptive sentences. Since the use of consecutive sentencing constituted a departure under the Guidelines then in effect, the trial court breached the plea agreement in making the sentences run consecutively. The court of appeals ruled that the defendant was entitled to specific performance of the plea agreement, imposition of concurrent sentences.

The state argues that the agreement was an agreement as to sentence length and that the reference to the sentences agreed upon as being the presumed sentences under the Guidelines was merely informational. The state argues that the court of appeals' decision should be reversed and the original aggregate sentence of 179 months reinstated. Alternatively, it argues that at most there was a mutual mistake by both parties and that under case law of this court the remedy for mutual mistake in such a situation is to remand to the district court and to give the defendant an opportunity to withdraw his guilty pleas. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989); State v. DeZeler, 427 N.W.2d 231, 234-35 (Minn. 1988). Under that result, the state would be allowed to prosecute defendant on the original charges, absent a new plea agreement. Alabama v. Smith, 109 S. Ct. 2201, 2205-06 (1989); State v. Kaiser, 469 N.W.2d 316, 320 (Minn. 1991); Brown v. State, 449 N.W.2d 180, 183, n. 1 (Minn. 1989).

Rather than decide whether or not the agreement was simply an agreement as to sentence length, in which event defendant got exactly what he bargained for, we have concluded that at most the parties were mutually mistaken as to the nature of the agreement and that the appropriate remedy in such a situation is to allow defendant to withdraw the guilty plea if he so chooses. Accordingly, we disagree with the court of appeals' conclusion that defendant is entitled to specific performance in the form of a reduction of sentence. Rather, we remand the case to the district court with instructions to allow defendant to withdraw the guilty plea if he so chooses. If he does not so choose, then the trial court's ruling in May of 1996 allowing the original sentence to stand should remain in effect.