This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Earl Ray Perry, petitioner,



State of Minnesota,


Filed October 20, 1998

Reversed and Remanded

Kalitowski, Judge

Hennepin County District Court

File No. 95082101

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue SE, #600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Willis, Judge.



This appeal involves appellant Earl Ray Perry's postconviction challenge to his 1996 guilty plea and sentence for first-degree criminal sexual conduct. Because we conclude Perry's guilty plea was based on a mutual mistake as to his criminal history score, we reverse the district court's denial of Perry's request to withdraw his guilty plea and remand.


Perry was charged with sexual penetration of a 22-year-old woman by means of force or coercion on September 16, 1995. A pretrial release evaluation was performed on September 19, 1995. A computer search of Perry's criminal record revealed that Perry had convictions in Washington state for simple assault (1977), promoting prostitution (1986), assault (1992), and violating a no-contact order (1993). The evaluation characterized these as "misdemeanor convictions," and noted that there were no bench warrants on Perry, and that Perry had stated he "may be on probation in Washington for an assault conviction."

Perry entered a guilty plea under an agreement calling for him to plead guilty to one of two counts, and receive a sentence of 81 months. Perry testified that he understood the terms of the agreement, although he had concerns "that [his] sentence would go up since today is not going to be [his] sentencing date." When defense counsel asked the court to assure Perry that his sentence would not go up, the following exchange occurred:

THE COURT: You will not receive anything more than 81 months. And that negotiation, my understanding, is based on the fact that you have no felony points that anyone is aware of. And are you telling this Court that you have no other felony convictions?

THE DEFENDANT: To my knowledge I don't.

The subsequent presentence investigation determined that three of Perry's Washington offenses were felonies for purposes of calculating his criminal history score. The district court concluded Perry had "attempt[ed] to deceive the court" and sentenced him to 141 months, which was within the presumptive range for a criminal history score of five (including three felonies). Perry petitioned the postconviction court to have his sentence modified to 81 months, or to be allowed to withdraw his guilty plea. The postconviction court (the same judge who had sentenced Perry) denied Perry's postconviction petition, again finding that Perry had attempted to deceive the court about his criminal history.

This court's review of a postconviction order is limited to deciding whether there is sufficient evidence to sustain the findings of the postconviction court. State v. Bliss, 457 N.W.2d 385, 391 (Minn. 1990). The decision of the postconviction court will not be disturbed absent an abuse of discretion. Id.

The state argues that Perry has forfeited his postconviction claim by failing to file an appeal from the April 1997 order denying his first postconviction petition. We disagree. Perry did not file a direct appeal, has had no appellate review of his conviction or sentence, and has not so seriously delayed or misused the postconviction remedy as to amount to an abuse of process. Cf. Hale v. State, 566 N.W.2d 923, 928 (Minn. 1997) (holding that postconviction court properly ordered summary denial against postconviction petitioner who had filed direct appeal as well as three postconviction petitions, waiting four years before filing third petition).

The record establishes that the plea agreement called for an 81-month sentence. Where a defendant deceives the district court, however, the court may impose a sentence different than the one agreed on by the parties. See State v. Bridgeforth, 357 N.W.2d 393, 394 (Minn. App. 1984) (holding that defendant's disappointment at sentence imposed after his unsuccessful attempt to deceive the court and counsel about his identity and criminal record did not warrant withdrawal of guilty plea), review denied (Minn. Feb. 6, 1985). Here, we conclude the postconviction court's finding that Perry attempted such a deception is not supported by the record.

Perry's criminal record was available in detail to the court shortly after his arrest because a pretrial bail evaluation was conducted at that time. The district court stated at the guilty plea hearing that the plea negotiation was "based on the fact that [Perry had] no felony points that anyone is aware of." Because the prosecution and defense counsel had access to the pretrial bail evaluation, presumably they were not relying on Perry for information about his criminal history. Moreover, whether Perry's known prior offenses were felonies or misdemeanors is a question of law, not a matter of fact on which the parties could reasonably have relied on Perry's recollection. Because the plea agreement relied on hard data about Perry's past offenses, we conclude the record establishes that the plea agreement was not based on Perry's representations.

The record does not indicate Perry agreed that the 81-month sentence was based on Perry's representations as to his criminal history rather than on the conclusions of the attorneys. A defendant is entitled to rely on his attorney's advice on legal issues, and is entitled to withdraw his guilty plea if there has been a mutual mistake as to his criminal history score. See State v. DeZeler, 427 N.W.2d 231, 235 (Minn. 1988) (holding that defendant had right to withdraw guilty plea that was based on mutual mistake as to his criminal history score). It was not Perry's responsibility to decide that his past offenses were felonies where the records available to the court indicated otherwise.

On appeal, Perry seeks specific performance of the plea agreement and a reduction of his sentence to 81 months. The supreme court has recently addressed the issue of specific performance as a remedy for breach of a plea agreement, stating:

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.

State v. Thomas, No. C3-96-1173, 1997 WL 20348 at *2 (Minn. Jan. 14, 1997). We therefore deny Perry's request for specific performance. In his postconviction petition Perry also sought withdrawal of his guilty plea. Because the plea was based on a mutual mistake as to Perry's criminal history score, the district court erred in denying Perry's motion to withdraw his guilty plea. We therefore remand this matter to allow Perry the option of withdrawing his guilty plea in such proceedings as the district court deems appropriate.

Reversed and remanded.