This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-394

 

 

State of Minnesota,
Respondent,

vs.

Michael DeShawn Ghant,
Appellant.

 

 

Filed June 6, 2000

Reversed and remanded
Klaphake, Judge

 

Sherburne County District Court

File No. K3-98-340

 

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

 

Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, 13880 Highway 10, Elk River, MN  55330-4601 (for respondent)

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN  55414-3230 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Poritsky, Judge.^*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Michael DeShawn Ghant appeals from a Minnesota sentence to be served after completion of an eight-year Indiana sentence.  Because the sentencing court went beyond the terms of Ghant’s plea agreement, we reverse and remand to allow Ghant an opportunity to withdraw his plea.

FACTS

In March 1998, Ghant was charged in Sherburne County with first-degree burglary, second-degree burglary, theft of a firearm, and illegal possession of a firearm.  At the time he allegedly committed these offenses, Ghant was on probation for an offense he had committed in Benton County in February 1998.

On June 15, 1998, Ghant entered a plea of guilty to second-degree burglary, and the remaining counts were dismissed.  Under the plea agreement, Ghant accepted an upward durational departure of 48 months, stayed, to be served consecutive to the Benton County sentence.  He was to serve nine months in jail as a condition of probation.  The sentencing hearing was scheduled for July 17, 1998.

Ghant then requested to be released without bail pending sentencing so that he could be with his pregnant wife.  The trial court decided to “take a chance” and granted Ghant’s request.  The court warned Ghant that if he did not appear for sentencing or if he committed any crimes while awaiting sentencing “you’re going to go to prison, [b]ecause you will have shown me that, in fact, you cannot remain law abiding.”  When Ghant failed to appear for his scheduled sentencing hearing, a warrant was issued.

Ghant went to Indiana, where he committed a drug offense.  In August 1999, he pleaded guilty to “Dealing in Cocaine” and received an eight-year sentence.  While in jail in Indiana, Ghant notified Sherburne County of his whereabouts and requested final disposition of the Sherburne County conviction.  Sherburne County requested temporary custody of Ghant from Indiana under the Interstate Agreement on Detainers (IAD).

On December 7, 1999, Ghant appeared for sentencing and moved to withdraw his plea.  The trial court denied his request and sentenced him to 48 months in prison, consecutive to the Benton County sentence.  The trial court further ruled that “execution of this sentence shall issue upon completion of [Ghant’s] Indiana sentence; at which time he will then be delivered by Indiana into the custody of the Commissioner of Corrections.”

            This appeal followed.

D E C I S I O N

Ghant argues that, by executing a sentence that it had agreed would be stayed, the trial court violated the plea agreement.  We agree.  Although Ghant’s commission of a subsequent crime in Indiana and his incarceration there were not contemplated or addressed by the plea agreement, he did not agree to the execution of the 48-month sentence or to the additional departure imposed when the court ordered his Minnesota sentence to begin after completion of his Indiana sentence.  The trial court therefore erred in imposing this de facto consecutive sentence, without allowing Ghant an opportunity to withdraw his plea.

If a trial court’s sentencing operates as a rejection of a sentencing agreement, pursuant to which a defendant has pleaded guilty, the defendant must be allowed to withdraw the guilty plea.  See State v. DeZeler, 427 N.W.2d 231, 235 (Minn. 1988) (allowing defendant to withdraw guilty plea where parties under mutual mistake as to defendant’s criminal history score and agreement based entirely on assumption that presumptive sentence was stayed sentence); State v. Kunshier, 410 N.W.2d 377, 379-80 (Minn. App. 1987) (allowing defendant to withdraw plea when prosecutor changed recommendation from concurrent to consecutive sentence, based upon defendant’s acts subsequent to guilty plea), review denied (Minn. Oct. 21, 1987).

We therefore reverse and remand this matter.  We need not address alternative challenges to the sentence that were raised by Ghant.  Further, at this time we decline to address the issue regarding jail credit; any decision on that issue is premature and would amount to dictum.

Reversed and remanded.