C3-99-1477

State of Minnesota

Respondent,

vs.

Hans Joachim Muha,

Appellant.

Filed ญญญMarch 28, 2000

Affirmed

Harten, Judge

Ramsey County District Court

File No. K9-98-2585

John M. Stuart, State Public Defender, Theodora K. Gaitas, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.

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

HARTEN, Judge

Appellant challenges the denial of his petition to withdraw his plea of guilty to first-degree criminal sexual conduct. Because we see no abuse of discretion in the denial, we affirm.

FACTS

For about two years, appellant Hans Muha engaged in sexual conduct with his wife’s daughter, then aged 15 to 17. After the conduct was reported to the police, appellant was charged with first-degree criminal sexual conduct (Minn. Stat. ง 609.342, subds. 1(g) and 2(1998). He pled guilty pursuant to a plea agreement. Appellant’s attorney sought a stayed sentence. The district court indicated that a stayed sentence would be appropriate if appellant proved amenable to treatment, and it ordered community corrections to complete a pre-sentence investigation (PSI) and a sex-offender evaluation of appellant.

The evaluation report indicated that appellant changed his stories, attempted to shift blame to the victim, and was not amenable to treatment. The district court denied appellant’s motion to withdraw his guilty plea and sentenced him to the guideline presumptive 86 months and a mandatory five-year conditional release.

Appellant now challenges the denial of his original motion to withdraw his plea, arguing that the denial was a manifest injustice and that the absence of the conditional release term from the plea agreement entitles him to withdraw his guilty plea as a matter of law.^[1]

D E C I S I O N

Standard of Review

The ultimate decision [of allowing a defendant to withdraw a guilty plea] is left to the sound discretion of the trial court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion.

Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989). When credibility determinations are crucial in determining whether a guilty plea was accurate, voluntary, and intelligent, a reviewing court will give deference to the primary observations and trustworthiness assessments made by the district court. State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (Minn. June 11, 1997).

Minn. R. Crim. P. 15.05, subd. 1, provides that

The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.

Appellant argues that denying his motion to withdraw his guilty plea was “a manifest injustice.”

First, appellant contends that his plea was not voluntary because it was not clearly explained on the record that he would go to prison for 86 months if he were found unamenable to treatment. But appellant’s attorney referred to “the 86-month sentence” at the hearing and the plea petition itself stated that the maximum sentence for appellant’s offense was 30 years. Appellant replied in the affirmative when the court asked him if he had gone over both sides of the plea petition with his lawyer, if he understood everything written on it, and if he had signed it acknowledging that he understood it. Thus, the record demonstrates that appellant’s plea was voluntary. State v. Brown, ___ N.W.2d ___, ___, 2000 WL 210204, at *3, *4 (Minn. 2000) (defendant who understood that he risked an executed double durational departure sentence and received an aggregate sentence of less than the double of durational departure cannot successfully argue that his plea was unknowing).

Appellant next contends that his plea was not intelligently made because the district court’s agreement to it was contingent on appellant being found amenable to treatment, a standard that appellant claims is imprecise. But the district court clearly stated that “the bottom line here is amenability to treatment,” and appellant’s attorney replied, “[t]hat’s my understanding.” Both appellant and his attorney understood the implications of finding appellant amenable to treatment. There was no manifest injustice in appellant’s guilty plea.

Finally, appellant argues that he should be permitted to withdraw his guilty plea because his plea agreement did not include the mandatory conditional release term. He relies on State v. Garcia, 582 N.W.2d 879, 880 (Minn. 1998), for this argument. Garcia holds that

a defendant who enters into a plea agreement for a sentence that fails to include a conditional release term required by law may either withdraw the guilty plea or accept the agreed upon sentence as amended to include the additional conditional release term, but may not obtain specific performance of the original plea agreement.

Id. at 880. But Garcia is distinguishable. In that case, the defendant agreed to plead guilty to a lesser charge in exchange for a specific sentence. Id. Here, appellant was not offered the option of agreeing to a specific sentence because the court would not agree to any particular sentence until the results of the sex-offender evaluation were available. See also State v. Jumping Eagle, 602 N.W.2d 653, 655 (Minn. App. 1999) (Garcia does not control where a plea agreement did not indicate a sentence but provided for sentencing if probation were revoked, and mandatory conditional release is not relevant until probation is revoked and sentence is executed), review granted and stayed (Minn. Jan. 25, 2000).

There was no abuse of discretion in the denial of appellant’s motion to withdraw his guilty plea.

Affirmed.

^[1] This is the second appeal. Appellant withdrew his first appeal and moved to remand to the district court for reconsideration in light of State v. Garcia, 582 N.W.2d 879 (Minn. 1998). Appellant’s motion to withdraw was again denied, and he filed this appeal.