This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-00-1956

 

State of Minnesota,

Respondent,

 

vs.

 

Brian Eugene Fisette,

Appellant.

 

Filed May 15, 2001

Reversed and remanded; sentence vacated

Harten, Judge

 

Washington County District Court

File No. K3-92-513

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

 

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

 

Doug Johnson, County Attorney, Robert J. Molstad, Assistant County Attorney, Washington County Government Center, 14949-62nd Street North, Stillwater, MN 55082 (for respondent)

 

            Considered and decided by Crippen, Presiding Judge, Harten, Judge, and Poritsky, Judge.^*

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellant challenges his conviction, arguing that he is entitled to withdraw his guilty plea because, after he failed to appear for sentencing, the district court refused to grant him a stay of adjudication pursuant to his plea agreement.  We reverse, remand, and vacate appellant’s sentence.

FACTS

            Appellant Brian Eugene Fisette was charged with controlled substance crime in the fifth degree (possession of cocaine) in violation of Minn. Stat. § 152.025, subd. 2(1) (1998), and possession of a small amount of marijuana in violation of Minn. Stat. § 152.027, subd. 4 (1998).  On July 28, 1999, appellant signed a plea petition form which provided, among other things, that in exchange for his entry of a plea of guilty to controlled substance crime in the fifth degree, respondent State of Minnesota would dismiss the remaining charge against him.  The plea agreement also provided that appellant’s jail sentence would not exceed 23 days.  On July 28, 1999, at the plea hearing, the prosecutor stated, “[I]t’s my understanding that [appellant’s attorney] intends to ask the Court for [a] stay of adjudication” pursuant to Minn. Stat. § 152.18 (1998), and that appellant “may be eligible for that stay.”  Appellant’s attorney stated,

And assuming that [appellant] has no prior drug conviction on his record, it’s my understanding he would be eligible for the 152.18.  And it’s fair to say that the Court has agreed to give him that, if he is eligible.

To which the district court replied, “Yes,” and informed appellant “that will be pending the PSI [presentence investigation].”  The district court said that at sentencing, “[W]e will look at whether or not you are going to be eligible for disposition under Minnesota Statute 152.18.”

            At the conclusion of the plea hearing, appellant signed a Notice of Court Appearance for his sentencing hearing on September 13.  But on September 13, appellant failed to appear.  The district court issued a bench warrant for appellant’s arrest.  On June 5, 2000, appellant was apprehended in Indiana.

On August 11, 2000, appellant appeared before the district court for sentencing. The probation officer had recommended in her PSI report that the district court stay imposition of sentence and place appellant on probation.  However, at the sentencing hearing, the probation officer stated, “But [appellant] did leave the state, obviously, before sentencing; so I certainly wouldn’t be an advocate of a stay of imposition either.”  The presentence investigation revealed that appellant had a criminal history score of one, which included a prior conviction for Felony Escape, and two prior Gross Misdemeanor convictions for Resisting Arrest and Giving a Police Officer a False Name. 

The district court imposed the presumptive sentence of 12 months and a day, stayed execution of that sentence, and placed appellant on probation for five years.  Pursuant to the plea agreement, the district court ordered appellant to serve 23 days in jail, and discharged appellant from that sentence because he had served more than 23 days since the date of his offense.  The district court also ordered appellant to pay a $3,000 fine, to complete a chemical dependency evaluation, and to comply with any recommendations for treatment or counseling.

            Appellant’s attorney recommended that appellant “ask the Court to allow him to withdraw his plea.”  She also indicated that

[m]y negotiation with the county attorney when he pled guilty was that he would have a minimum of a stay of imposition; and I reserved the right to argue for a 152.18 on that—

 

The district court informed appellant that “the 152.18 disposition was conditional” and “not recommended.”  Appellant’s attorney replied, “I’m not asking for the 152.18 at this point.  I’m asking for the plea negotiation of a stay of imposition.”  Appellant’s attorney later stated,

The statute would, I believe, entitle him to a 152.18 on this matter.  I can appreciate that wasn’t part of the plea negotiation, but what was part of the plea negotiation at a minimum was a stay of imposition.

 

Citing appellant’s failure to appear at the scheduled sentencing hearing, the district court denied appellant’s request for a stay of imposition.  This appeal followed.  

D E C I S I O N

 The trial court is vested with broad discretion in determining whether a defendant is allowed to withdraw his guilty plea.  However, if an unqualified promise is made on the sentence to be imposed, a defendant should be allowed to withdraw his guilty plea if that promise is not fulfilled. 

 

State v. Kunshier, 410 N.W.2d 377, 379 (Minn. App. 1987) (citations omitted), review denied (Minn. Oct. 21, 1987).  Minn. R. Crim. P. 15.05, subd. 1, provides:

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.  Such a motion is not barred solely because it is made after sentence.  If a defendant is allowed to withdraw a plea after sentence, the court shall set aside the judgment and the plea.

           

Appellant contends that he should be permitted to withdraw his guilty plea because the district court failed to follow the terms of the plea agreement.  “[I]f the trial court rejects an agreement as to sentence, the defendant is entitled to withdraw his plea.”  State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988).  Respondent argues that appellant is not entitled to withdraw his guilty plea “because the terms of the plea agreement did not promise [a]ppellant any specific sentence,” and the district court could not reject an agreement as to sentence, “because there was no agreement.”  However, appellant’s guilty plea petition incorporates section 152.18 in paragraph 21(a).  The paragraph states that “the prosecuting attorney and I agreed that if I entered a plea of guilty, the prosecutor will do the following,” after which is hand-written in the petition, “I will plead guilty to [count] I [fifth degree] controlled substance[,] 152.18[,] dismiss [count] II[,] cap 23 days [executed] jail [time].”  Additionally, appellant’s plea petition specifically provides in paragraph 21(b)(i), “[t]hat if the court does not approve this agreement * * * I have a right to withdraw my plea of guilty and have a trial.”  Furthermore, at the plea hearing, appellant’s attorney stated,

And assuming that [appellant] has no prior drug conviction on his record, it’s my understanding he would be eligible for the 152.18.  And it’s fair to say that the Court has agreed to give him that, if he is eligible.

 

To that statement the district court replied, “Yes.”  When appellant’s plea petition is reviewed with the transcript of the plea hearing, we conclude that an agreement was made with appellant that he would receive a stay of adjudication under section 152.18 if he was eligible, which meant that he had no prior drug convictions. 

The following statements were made at the sentencing hearing by the prosecutor, appellant’s attorney, and the district court:

[Prosecutor]:[P]art of the plea agreement called for a possibility of a 152.18 which would be a stay of adjudication.

 

The Court:      That was a year ago.

 

[Prosecutor]:You’re right.  So maybe that’s one way of looking at it.  Other than that, I’m not really advocating for [the stay of adjudication] one way or another.

 

* * * *

 

The Court:      Well, Mr. Fisette, based upon your record and your record with this Court, I am not going to stay imposition of the sentence.  I am going to impose the sentence, but I’m going to stay execution of the sentence.

 

* * * *

 

[Appellant’s Attorney]:         Your Honor, at a minimum, I advised and I believe our plea negotiation called for a stay of imposition * * * .  I reserve * * * the right to argue for 152.18 which would be a stay of imposition.

 

* * * *

 

Well, your Honor, I need to re-visit that, or I need him to ask the Court to allow him to withdraw his plea.  My negotiation with the county attorney when he pled guilty was that he would have a minimum of a stay of imposition; and I reserved the right to argue for a 152.18 on that –

 

The Court:      And that, * * *, was back in July of 1999.  Your client has not been here.  All bets are off on that.  I accepted the plea [and] the 152.18 disposition was conditional.  It was not recommended * * * .

 

[Appellant’s Attorney]:         And I’m not asking for the 152.18 at this point.  I’m asking for the plea negotiation of a stay of imposition.

 

* * * *

 

                        The statute would, I believe, entitle him to a 152.18 on this matter.  I can appreciate that wasn’t part of the plea negotiation, but what was part of the plea negotiation at a minimum was a stay of imposition.

 

* * * *

 

The Court:      [Appellant] has not been cooperative with this Court.  And I will reiterate he pled guilty back in July of 1999.  He was supposed to appear for sentencing on September 13, 1999.  He failed to do that; and, therefore, I am not going to stay imposition of sentence.  I’m imposing the sentence as I’ve already ordered, but I’m staying the execution of that sentence.

 

Appellant relies on Kunshier, 410 N.W.2d at 380, to support his argument that the district court “could not unilaterally change the sentence without first giving [him] the opportunity to withdraw his guilty plea.”  Kunshier held that the district court, after allowing a defendant “to plead guilty under circumstances indicating [he] reasonably thought he had a firm agreement,” could not,

at the subsequent sentencing, exercise its right to impose any sentence deemed proper, within statutory limits, without first offering appellant his right to withdraw his guilty plea and stand trial.

 

Id. at 379 (footnote omitted).  Respondent contends that appellant is not entitled to withdraw his plea under Kunshier, because in the instant case, “there was no unqualified promise as to what sentence would be imposed.”  While the district court stated that a stay of adjudication under section 152.18 would “be pending the PSI,” no express conditions were placed on appellant’s eligibility, other than his having “no prior drug convictions.”  Under Kunshier,

[d]efendants, once they offer qualified guilty pleas, do not forfeit their right to withdraw those pleas of guilty and stand trial if, because of later events, the trial court or the prosecution ethically change their minds about previous agreements that were reached.

 

Id. at 380 (citation omitted).

Finally, appellant contends that this court must vacate appellant’s conviction and stay adjudication pursuant to section 152.18 or remand to the district court with instructions to allow appellant the opportunity to withdraw his plea.  To support this argument, appellant relies on State v. Jumping Eagle, 620 N.W.2d 42, 44-45 (Minn. 2000) (where addition of mandatory conditional release term has effect of increasing defendant’s sentence beyond upper limit of court-accepted plea agreement, sentencing court must either modify defendant’s sentence or allow defendant to withdraw guilty plea), and State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (district court had jurisdiction to amend defendant’s sentence to include statutorily mandated conditional release term, and defendant could not obtain specific performance of original plea agreement, but he could either withdraw plea or accept agreed upon sentence as amended to include conditional release term).  The Garcia court stated:

It is well settled that an unqualified promise which is part of a plea arrangement must be honored or else the guilty plea may be withdrawn. 

 

Id. at 882 (quoting Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979)).  Respondent contends that the instant case is distinguishable because appellant did not receive “an unqualified promise” and, therefore, the remedy of withdrawing his plea is not available to him.  We disagree.

The record demonstrates that an agreement was made with appellant that he would receive a stay of adjudication under section 152.18 provided he had no prior drug convictions.  Because the district court refused to stay adjudication even though the PSI revealed that appellant had no prior drug convictions, we reverse and remand.  On remand, if the district court remains firm in its choice not to stay adjudication under section 152.18, appellant must be offered the right to withdraw his guilty plea, plead not guilty, and stand trial.  Meanwhile, appellant’s sentence must be vacated.^[1]

            Reversed and remanded; sentence vacated.