This opinion will be unpublished and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

A06-620

 

State of Minnesota,

Appellant,

 

vs.

 

Eliazin Santana Garcia,

Respondent.

 

Filed December 12, 2006

Reversed and remanded; motion to dismiss denied;

motion to strike granted in part and denied in part

Huspeni, Judge*

 

 

Hennepin County District Court

File No. 05014527

 

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

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)

 

Leonardo Castro, Chief Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 2nd Avenue South, Suite 200, Minneapolis, MN 55401 (for respondent)

 

 

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

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellant challenges respondent’s sentence based on a plea agreement that was negotiated with the court, arguing that the district court impermissibly became a party to the plea negotiations.  Because the district court erred by improperly injecting itself into the plea negotiations, we reverse the guilty plea and sentence and remand the matter for trial or further plea negotiations and sentencing before a judge other than the judges previously involved in this matter.  We also deny respondent’s motion to dismiss and grant in part and deny in part appellant’s motion to strike.

FACTS

            Respondent Eliazin Garcia was charged with first-degree possession of cocaine.  At a pretrial conference, Garcia, his attorney, and the district court discussed the terms of a plea by Garcia.  There is no transcript of this conference.  The next day, the parties appeared before a different judge, and Garcia pleaded guilty to possessing more than 25 grams of cocaine.  The presumptive guideline sentence for that charge is 86 months executed.  Over the objection of appellant State of Minnesota, the district court sentenced Garcia to the terms discussed with the previous judge during the pretrial conference:  86 months execution stayed for 15 years, pending Garcia’s deportation to Mexico.  The court also sentenced Garcia to 365 days in jail, with credit for time served, and proposed a release to the Immigration and Naturalization Service (INS) when this time was served.  The state now appeals this sentence. 

            The state has moved to strike portions of respondent’s brief and appendix and Garcia has moved to dismiss the appeal as moot because he has been released to the custody of the INS. 

D E C I S I O N

Mootness

            We initially address Garcia’s motion to dismiss this appeal as moot.  He alleges first that if he is found in the United States before 2021, he will serve the remainder of his 86-month sentence in prison; thus giving the state the relief it seeks and rendering the appeal moot.  Second, he urges this court to dismiss the appeal because he has been released to the INS and is therefore no longer in the United States.  To guard against setting unnecessary precedents, this court will only entertain live controversies.  Chaney v. Minneapolis Cmty. Dev. Agency, 641 N.W.2d 328, 331 (Minn. App. 2002).  An issue is deemed moot and results in dismissal only if the court is unable to grant effectual relief.  In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989). 

            We are not persuaded by either of Garcia’s arguments.  In his first argument, he mischaracterizes the outcome sought by the state.  During plea negotiations, the state offered Garcia a recommended sentence of 58 months in prison—one-third less than the guidelines amount.  Even on appeal, the state is not seeking an 86-month prison sentence; instead, it asks that this court vacate the guilty plea and sentence and remand the matter for trial. 

Additionally, if Garcia is actually deported and later returns to the United States, is taken into custody, and charged with a probation violation, there is no guarantee that he would return to prison for the remainder of his sentence.  See State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980) (establishing three-step analysis for probation revocation: (1) court must find the specific condition of probation violated, (2) that the violation was intentional or inexcusable, and (3) the need for confinement outweighs the policies favoring probation).  Furthermore, in view of an allegedly invalid guilty plea, if we decline to address the merits of the state’s appeal now and Garcia’s probation is revoked in the future, he would have a strong claim that he should be permitted to withdraw his plea.  Such an occurrence would complicate any future proceedings.

Garcia also argues that this appeal is moot because he has been released to the INS and is no longer in the United States.  There is no evidence in the record, however, that Garcia has left the United States or even that he is not, in fact, still in Minnesota.  Evidence of a release to the INS is not conclusive of deportation since deportation is never definite, immediate, or automatic.  See State v. Mendoza, 638 N.W.2d 480, 483 (Minn. App. 2002) (“The INS may or may not decide to commence deportation proceedings, or to complete them if commenced, and may or may not act within a reasonable period of time.”), review denied (Minn. Apr. 16, 2002).  Therefore, we decline to find this appeal moot and Garcia’s motion to dismiss is denied.  A controversy with effective means of relief has been presented, and we address the state’s appeal on the merits.

Plea Negotiations

            In addressing the merits of this appeal, we note first the argument of the state that the district court improperly injected itself into plea negotiations, rendering the plea and sentence invalid.  We find this argument persuasive.  A judge should neither usurp the responsibility of counsel nor participate in the plea bargaining negotiation itself.  State v. Johnson, 279 Minn. 209, 216, 156 N.W.2d 218, 223 (1968).  The proper role of the district court is to determine the appropriateness of the proffered plea agreement presented to it by the parties.  Id.  The district court’s “ultimate judicial responsibility” is to make reasonably certain that a defendant has not been improperly induced to plead guilty to a crime nor permitted to bargain for a plea that is excessively lenient.  Id. at 215-16, 156 N.W.2d at 223.  Irrespective of any demonstrated prejudice, the law is clear that a guilty plea is per se invalid when the district court impermissibly injects itself into plea negotiations.  State v. Moe, 479 N.W.2d 427, 429-30 (Minn. App. 1992), review denied (Minn. Feb. 10, 1992).  We conclude that such impermissible injection occurred in this case.

            The Minnesota Supreme Court has voiced its disapproval of district court participation in plea bargaining.  See State v. Nelson, 257 N.W.2d 356, 359 n.1 (Minn. 1977) (stating that “[t]rial judges should be very cautious not to impermissibly participate in plea negotiations.”); Johnson, 279 Minn. at 216, 156 N.W.2d at 223 (declaring that a judge’s role is one of discrete inquiry into the propriety of the plea arrangement, not that of a party to the negotiation).  When a district court injects itself into plea negotiations, it removes itself from the role of an “independent examiner” and becomes “one of the parties to the negotiation” and is “excessively involved in the negotiations themselves.”  Johnson, 279 Minn. at 216 n.11, 156 N.W.2d at 223 n.11 (quotations omitted).  In State v. Anyanwu, the district court promised a defendant a sentence in advance over the objection of the prosecutor.  681 N.W.2d 411, 415 (Minn. App. 2004).  By stepping into the position of a party to the negotiation, the district court “abandoned its role as an independent examiner.”  Id.

            Here, as in Anyanwu, the district court usurped the role of counsel.  The state vehemently objected to using Garcia’s immigration status as a basis for the dispositional departure.  The sentencing transcript reveals that the sentencing judge recognized that the pretrial judge had entered the negotiations:

THE COURT:  And, Ms. Charles, your client wants to plead guilty under the terms as offered by [the judge involved in plea negotiation]? (emphasis added).

 

MS. CHARLES:  That’s correct, Your Honor.  107 days credit.

 

Moreover, on his petition to enter a plea of guilty, Garcia crossed out the term “prosecuting attorney” and added “Judge” as a party to the plea negotiation.  Therefore, the record before this court reveals that the sentencing judge, the prosecuting attorney, and the defendant all recognized that the court had entered into the negotiations.  By offering terms to the defendant, the court was no longer an “independent examiner” but became a “party” to the agreement.  The plea was therefore invalid, and we reverse and remand for further proceedings before a judge other than one previously involved in this matter.[1]

Sentencing Departure

            Appellant also argues that the district court abused its discretion by improperly considering Garcia’s immigration status as grounds for the departure.  Although we reverse Garcia’s sentence on the basis that the district court improperly injected itself into the plea negotiations, we nonetheless address the departure issues because they may arise again on remand.  A district court must order the presumptive sentence provided in the sentencing guidelines unless the case involves “substantial and compelling circumstances” to warrant a downward departure.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  On appeal, a departure from the sentencing guidelines is reviewed for abuse of discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003).  

            The Minnesota Sentencing Guidelines provide a list of non-exclusive factors that a district court may use as reasons for granting a downward departure.  Minn. Sent. Guidelines II.D.2.  Immigration status is not listed as a factor.  The Sentencing Guidelines advise that when a judge departs from the suggested sentence, the judge must disclose in the record the substantial and compelling reasons for the departure and is constrained by caselaw and appellate review when exercising its discretion in this area.  Minn. Sent. Guidelines II.D.

            This court reviews a sentencing departure to determine whether the district court has stated proper grounds for the departure, or whether such grounds appear in the record.  State v. Carter, 424 N.W.2d 821, 823 (Minn. App. 1988).  The record in this case does not contain sufficient evidence to justify the extreme departure reflected in appellant’s sentence.  None of the mitigating factors expressly listed in the guidelines are present here.  Furthermore, nothing in the record reveals compelling and substantial circumstances as required to justify a departure.

            A district court may also impose probation “in lieu of an executed sentence when the defendant is particularly amenable to probation.”  State v. Gebeck, 635 N.W.2d 385, 389 (Minn. App. 2001).  In determining a defendant’s amenability to probation, the district court may consider the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends or family.  State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982).  The reviewing court must examine the record to determine whether it supports the district court’s stated reasons for a departure.  State v. Sebasky, 547 N.W.2d 93, 100 (Minn. App. 1996), review denied (Minn. June 19, 1996).

            The district court gave two reasons for the departure: (1) acceptance of responsibility and (2) Garcia’s impending deportation.  The court did not weigh any other probationary factors.  Nothing in the record indicates that the district court considered anything other than Garcia’s short statement of “I plead guilty and I’m sorry” in determining that he accepted responsibility and therefore was amenable to probation.  There was no Presentence Investigation Report prepared, nor are there any other reports from probation officers or treatment professionals indicating that Garcia was amenable to probation.  Importantly, although Garcia argues that he showed remorse, the court did not specifically list remorse as one of the reasons for the departure.  We decline to make such an independent determination ourselves on the sparse record before us.

            The district court’s second stated reason for the departure—deportation—is an impermissible factor that should not be the basis for a departure.  In Mendoza, the district court acknowledged there were arguments favoring a dispositional departure, but concluded that because the defendant was subject to deportation if she was not imprisoned, a probationary sentence was “really impossible and impractical.”  638 N.W.2d at 482.  This court, after concluding the district court should not have considered the defendant’s immigration status, remanded for consideration of the factors favoring, as well as those weighing against, departure.  Id. at 483-84.

            We are unconvinced by Garcia’s argument that courts have based departures on deportation.  While reliance on deportation may, indeed, be present in cases that conclude in the district court, we are not called upon to review the wisdom or propriety of that reliance.  Our review of appellate caselaw reminds us, however, that immigration sanctions are collateral consequences of a criminal sentence, and offer scant support for relief sought by defendants in criminal proceedings.  See, e.g., Alanis v. State, 583 N.W.2d 573, 578-79 (Minn. 1998) (holding that federal immigration consequences of criminal convictions are collateral, not direct, consequences of the convictions, and deportation alone is not a manifest injustice warranting postconviction relief in a state criminal proceeding).  

Motion to Strike

            Turning now to the state’s motion to strike certain portions of Garcia’s brief and appendix, we note that a court “will strike documents included in a party’s brief that are not part of the appellate record.”  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d on other grounds, 504 N.W.2d 758 (Minn. 1993).  However, this court may consider public records on essentially uncontroverted documentary evidence that are not included in the district court file.  Franke v. Farm Bureau Mut. Ins. Co., 421 N.W.2d 406, 409 n.1 (Minn. App. 1988).

            The Minnesota Sentencing Guidelines document is in the public realm and uncontroverted; thus, we decline to strike it from the record.  However, the police report is not part of the record, nor has Garcia shown that its inclusion is necessary to our administration of justice.  Therefore, the motion to strike is granted as to the police report and denied as to the Minnesota Sentencing Guidelines document.  We note, however, that the inclusion of the guidelines document and the exclusion of the police report in no way affect our determination that Garcia’s sentence was impermissible.

            Reversed and remanded; motion to dismiss denied; motion to strike granted in part and denied in part.