This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-457

 

In the Matter of the Welfare of:

M.M.F.

 

Filed May 30, 2006

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. J7-04-063122

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent State of Minnesota)

 

Hersch Izek, 1611 Park Avenue South, Minneapolis, MN  55404 (for appellant M.M.F.)

            Considered and decided by Randall, Presiding Judge; Minge, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from the denial of a motion to dismiss, appellant M.M.F. argues that (1) the criminal-sexual-conduct charge should have been dismissed because it was a “pending” case within the meaning of the February 2004 plea agreement; and (2) his guilty plea to the aggravated robbery charges was induced and was neither knowing nor voluntary because he believed that under the terms of the February 2004 plea agreement, he would not be prosecuted for the “pending” criminal-sexual-conduct charge.  We affirm.

FACTS

            On February 6, 2004, appellant M.M.F. pleaded guilty to two counts of aggravated robbery.  As part of the February 6 plea agreement, the state agreed not to prosecute any “pending cases.”  In September 2004, appellant was charged with first-degree criminal sexual conduct and kidnapping in connection with an incident that occurred in October 2003.  Appellant subsequently filed a motion to dismiss on the basis that prosecution of the charges was barred under the terms of the February 6 plea agreement.

            A hearing on appellant’s motion to dismiss was conducted on December 8, 2004.  At the hearing, Sergeant Voss testified that in mid-January 2004, he began investigating a string of street robberies that had been committed by a group of individuals.  Voss testified that at about the same time, he also began investigating a rape case that was connected to one of the robberies.  According to Voss, appellant became a suspect in the rape case on January 12, 2004, when the victim identified appellant as the man who raped her.  Voss testified that between January 12 and February 6, 2004, he did not inform anybody at the Hennepin County Attorney’s Office that appellant was a potential suspect
in a criminal sexual conduct case.  Voss further testified that the first time he informed the county attorney’s office that appellant was a rape suspect was July 6, 2004.

            On December 22, 2004, the district court issued an order denying appellant’s motion to dismiss.  The district court found that the rape case was not referred to the county attorney’s office until long after the February 6, 2004 plea agreement, and, therefore, prosecution of the criminal sexual conduct charges was not barred under the terms of the plea agreement.  Appellant subsequently pleaded guilty to the criminal-sexual-conduct charges and was adjudicated delinquent as an extended-jurisdiction juvenile as to the offense of criminal sexual conduct in the first degree.  This appeal followed. 

D E C I S I O N

I.

            Appellant argues that the district court erred in denying his motion to dismiss because the criminal-sexual-conduct charge was a “pending” case within the meaning of the February 6, 2004 plea agreement.  Determining what the parties agreed to in a plea agreement is an issue of fact for the district court to resolve.  State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004).  But the interpretation and enforcement of plea agreements present issues of law, which this court reviews de novo.  State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000).

 

            The state contends that appellant waived his claim by pleading guilty to first-degree criminal sexual conduct.  Generally, a guilty plea by a counseled defendant waives all nonjurisdictional defects.  State v. Ford, 397 N.W.2d 875, 878 (Minn. 1986).  But an appellate court may review any other matter as the interests of justice may require.  Minn. R. Crim. P. 28.02, subd. 3.  We address the issue in the interests of justice.  

            At the guilty plea hearing of February 6, 2004, the following exchange took place:

Ms. Tonelli:  The only question we had prior to coming in this afternoon were [sic] whether or not there are any other pending cases --

Ms Jehl:  Oh.

Ms Tonelli:  -- and Ms. Jehl has represented to me, and for my client’s benefit, that while there were some other referrals made to the County Attorney’s Office, that she disclosed to us those matters will not be charged.  Is that correct?

Ms. Jehl:  That’s correct, Your Honor.

The Court:  Is that correct?

Ms. Jehl:  That’s correct.

 

            Appellant argues that because Sergeant Voss spoke with the rape victim on January 12, 2004, and obtained a tentative identification of appellant, appellant was already a suspect in the case at the time he entered into the February 6, 2004 plea agreement. Appellant argues further that because Sergeant Voss testified that the rape case was a “pending case,” the criminal-sexual-conduct charge is covered by the plea agreement by which appellant could not be prosecuted for any pending cases.

            We understand appellant’s argument.  Appellant was a suspect, and the charge was “pending” in the mind of the investigator who had determined appellant might be involved and who now was pursuing the investigation, which might, and in fact did, lead to a later charge.  Having said that, the plea bargain, as expressed in the record in open court, was dated February 6, 2004, and is unambiguous in defining pending as “referrals made to the County Attorney’s Office.”  The bargain is “ . . . other referrals made to the County Attorney’s Office . . . .”  It is clear from the record that there was no referral to the county attorney’s office for possible charges until well after that date.  Appellant does not claim his case was referred to the county attorney’s office.  Appellant’s claim rests solely on his interpretation of the word “pending” as used by the investigator in a different context.  We can only note that appellant and his attorney made the plea agreement with the county attorney’s office, not the investigator.  Nothing in the record implies that the February 6 date and the January 2004 date, when appellant became a suspect, were manipulated by the county attorney’s office so that they could intentionally hang on to that charge while agreeing not to bring others.

            We note that prosecutors and defense attorneys need to take time to clarify the essential details of a plea agreement.  The district court here could have acted sua sponte to require the two lawyers to be precise about “those matters.”  But appellant was not treated unfairly.  It simply would have been far better for “those matters” to have been itemized and linked to a specific crime so there could never be a doubt as for which potential charges appellant had immunity from, and for which potential charges he did not. 

II.

            Appellant argues that he should be allowed to withdraw his February 6, 2004 guilty plea because it was improperly made and neither knowingly nor understandingly made.  Generally, a court may allow a child to withdraw a guilty plea at any time, upon a showing that withdrawal is necessary to correct a manifest injustice.[1]  In re Welfare of J.J.R., 648 N.W.2d 739, 742 (Minn. App. 2002).  A manifest injustice exists when a defendant can show that his plea of guilty was not “accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).”  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  

            Here, the record reflects that appellant failed to bring a post-adjudication motion to withdraw his guilty plea to the aggravated-robbery charges.  The first time appellant raised his request to withdraw the February 6 guilty plea is in this appeal.  This court does not generally consider matters not argued and considered in district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Moreover, there is nothing in the record indicating that appellant’s February 6, 2004 guilty plea was not knowingly or understandingly made.

            Affirmed.