STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1430

State of Minnesota,
Respondent,

vs.

Luis Perales,
Appellant.

Filed May 17, 2005

Reversed and remanded

Minge, Judge

Ramsey County District Court

File No. K8-02-4415

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

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

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Minge, Presiding Judge; Wright, Judge; and Huspeni, Judge.

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

MINGE, Judge

Appellant challenges the district court’s imposition of a sentence in excess of that agreed to in the plea agreement based on appellant’s failure to appear at the scheduled sentencing hearing. Because we conclude that the district court may not impose a sentence in excess of that provided in the plea agreement without allowing appellant to withdraw his guilty plea, we reverse and remand.

FACTS

Appellant Luis Perales was charged with a second-degree controlled substance crime under Minn. Stat. § 152.022, subd. 2(1) (2002), for possessing six or more grams of methamphetamine discovered during a routine traffic stop. The presumptive sentence given appellant’s criminal history points was 88 months in prison. Appellant agreed to plead guilty in exchange for the prosecutor recommending a downward durational departure to 50 months in prison. The agreement as stated in the plea petition also stated that if the court did not accept the plea, appellant had the right to withdraw the guilty plea and go to trial.

At the plea hearing the district court approved the plea agreement on the condition that appellant agree to the following three conditions: to show up at the time and place set for sentencing, to cooperate with the probation department during the pre-sentencing investigation and to obey the law. The district court asked appellant if he agreed to each condition individually and appellant stated that he did. The district court then stated that “[i]f you don’t do these things, your plea of guilty will stand and I’ll be able to sentence you in accordance with state law and I won’t have to pay any attention to any deal here.” Appellant stated that he understood this.

Sentencing was set for February 18, 2003. Appellant failed to appear for sentencing. Appellant was eventually apprehended and on May 3, 2004, the sentencing hearing was held. The district court stated that the agreement for a lesser sentence no longer applied. The prosecutor requested a presumptive sentence under the guidelines because appellant had missed the sentencing hearing. The district court imposed the presumptive sentence of 88 months in prison citing the extraordinary nature of appellant’s plea bargain, his criminal history, his failure to show up for the sentencing hearing, and his not being amenable to probation. This appeal follows.

D E C I S I O N

The issue in this case is whether the district court improperly added a condition to the plea agreement.

A guilty plea must be accurate, voluntary, and intelligent in order to be valid. State v. Wukawitz, 662 N.W.2d 517, 521 (Minn. 2003). For a plea to be voluntary, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 522 (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971)). “Interpretation and enforcement of plea agreements present issues of law that we review de novo.” State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000). Plea agreements in Minnesota are analogous to contracts, and principles of contract law are applied to determine their terms. In re Ashman, 608 N.W.2d 853, 858 (Minn. 2000).

A district court judge’s role is not to participate in the plea negotiation, but to be an independent examiner of the plea agreement. State v. Anyanwu, 681 N.W.2d 411, 414 (Minn. App. 2004) (holding that a judge cannot directly make an agreement with the defendant to impose a certain sentence in exchange for a guilty plea). Rule 15.04, subd. 3(1) of the Minnesota Rules of Criminal Procedure states “the trial court shall reject or accept the plea of guilty on the terms of the plea agreement.” In State v. Noreen, the district court imposed a restitution requirement of $2,000 as a condition of probation that was not included in the plea agreement. 354 N.W.2d 77, 78 (Minn. App. 1984). This court remanded to allow withdrawal of the guilty plea on the ground that the restitution should have been part of the plea agreement or the possibility made known and agreed to by the parties. Id. at 78-79.

Minnesota courts have been extremely reluctant to allow defendants to give up their right to withdraw a guilty plea if the sentence they agreed to is not imposed by the district court. See, e.g., State v. Kealy, 319 N.W.2d. 25, 26 (Minn. 1982); State v. Kortkamp, 560 N.W.2d 93, 95 (Minn. App. 1997); State v. Kunshier, 410 N.W.2d 377, 379 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987); State v. Noreen, 354 N.W.2d at 78. In Kunshier, after the plea hearing the defendant escaped from custody and committed other offenses. Kunshier, 410 N.W.2dat 378. As a result, the prosecutor recommended consecutive sentences rather than the concurrent sentences agreed to in the plea bargain. Id. This court held that the later events allowed the district court and prosecutor to reject the previous agreement, but the defendant had the right to withdraw his guilty plea. Id. at 379-80. In Kortkamp,the district court accepted the sentencing agreement between the defendant and the prosecutor, but stated that if the defendant got “into any trouble between today and the time I sentence you . . . all bets are off about any disposition I make.” 560 N.W.2d at 94. The district court allowed the prosecutor to seek a greater sentence after the defendant was charged with another crime. Id. This court reversed holding that the defendant had to be allowed to withdraw his guilty plea and stand trial because the state did not keep its promise. Id. at 95. The district court in Kealy,without allowing the defendant to withdraw his guilty plea, decided not to stay the imposition of a sentence as stated in the plea agreement because the defendant admitted at the plea hearing that he knew that the court could reject the recommendation. 319 N.W.2d at 26. The Minnesota Supreme Court stated that because the defendant’s admission was not inconsistent with his right in the plea petition to withdraw his guilty plea if the court rejected the recommendation, the defendant had a right to withdraw the plea when the district court did not adhere to the recommendation. Id.

This case presents issues similar to those in Kunshier and Kortkamp. In those cases the district court relied on an incident after the plea hearing to allow the state to argue for and to impose a sentence that deviated from the sentence agreed to in the plea agreement. Kunshier, 410 N.W.2d at 378; Kortkamp, 560 N.W.2d at 94. Like the court in Kortkamp, the district court in the present case gave appellant a warning that if he did not do certain things, including showing up for the sentencing hearing, the court could impose a sentence different from the one in the plea agreement. However, the present case differs from the other cases in two respects: (1) the district court in this case specifically told appellant at the plea hearing that if he did not appear for sentencing, the “plea of guilty will stand and I’ll be able to sentence you in accordance with state law and I won’t have to pay any attention to any deal here;” and (2) appellant stated that he understood and accepted that condition.

If the plea agreement is treated like a contract, appellant would be able to accept new conditions and waive his rights under the original plea agreement. Under this reasoning, if a party agrees to a new condition in his plea agreement, he should be held to the new agreement.

However, contract law is not a precise fit. Minnesota courts have been reluctant to find that a defendant has given up his right to withdraw his guilty plea when the agreed upon sentence is not imposed by the district court. See, e.g., id.; Kortkamp, 560 N.W.2d at 95; Kunshier, 410 N.W.2d at 379; Noreen 354 N.W.2d at 78. In part this is due to the requirement that a plea be voluntary. Wukawitz, 662 N.W.2d at 522. In part it is because incarceration is by definition a loss of liberty and there are strong constitutional due process protections when defendants are deprived of their liberty. See id. at 521.

In addition, the district court’s role in negotiating a plea agreement is limited; it is not supposed to be involved with plea negotiations. See Minn. R. Crim. P. 15.04, subd. 3(1); Anyanwu, 681 N.W.2d at 414-15. Of course, the district court is not powerless. If it rejects an agreement, it may explain its rejection and suggest terms it would accept. But if the agreement is rejected and a revised agreement is under consideration, the defendant should have full opportunity to consider the new conditions, to privately consult with counsel, and to withdraw his guilty plea. An impromptu modification while the defendant is in front of the court does not provide that opportunity. Even minor modifications or additions to a plea agreement may have serious consequences. In this case, appellant agreed that he would be subject to 38 months of additional prison time for any violation of the law.

We recognize that if the district court feels that an event occurring after the plea hearing does not allow it to honor the terms of the plea agreement, the district court can reject the agreement.[1] However, in that event the defendant can withdraw his guilty plea. As this case illustrates, the prosecution has alternatives. Here, the failure of appellant to appear at the sentencing hearing may be a separate crime. See Minn. Stat. § 609.49 (2002). If convicted, the district court can impose a sentence specifically for that crime.

Because we conclude that the district court erred when it modified the sentencing agreement without allowing appellant to withdraw his guilty plea, we remand to the district court to allow appellant to withdraw his guilty plea or to impose the sentence provided for in the plea agreement.

Reversed and remanded.

[1] Of course, the court could at the outset of a plea hearing advise the parties that it will not honor any agreement that does not include specific terms such as the three added in this case. Such action would encourage inclusion of such terms in all plea agreements.