This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1919

 

State of Minnesota,

Appellant,

 

vs.

 

Randy Alan Jacobson,

Respondent.

 

Filed June 26, 2007

Reversed and remanded

Parker, Judge*

 

Washington County District Court

File No. K5-06-668

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Doug Johnson, Washington County Attorney, Michael C. Hutchinson, Assistant County Attorney, Washington County Government Center, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082-0006 (for appellant)

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Worke, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

 

PARKER, Judge

 

            Appellant State of Minnesota challenges the sentence imposed on respondent Randy Alan Jacobson, arguing that the district court judge impermissibly injected herself into plea negotiations and that the record is insufficient to support a downward sentencing departure.  Respondent was charged with felony failure to register as a sex offender under Minn. Stat. § 243.166, subd. 3(b) (2004).  At the plea hearing, there was discussion of a “plea agreement” between respondent and the district court, pending the outcome of a presentence investigation (PSI).  The PSI recounted respondent’s record and circumstances, and noted the presence of a plea agreement between respondent and the district court, but recommended the presumptive sentence be imposed.  At the sentencing hearing, the district court, over the state’s objection, imposed a downward dispositional departure from the presumptive sentence.  Because we conclude that the district court judge erred by impermissibly injecting herself into the plea negotiations, we reverse and remand.

D E C I S I O N

1.         Plea agreement

            Appellant argues the district court judge impermissibly injected herself into the plea negotiations and essentially promised respondent the court would grant him a downward departure if he pleaded guilty.  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 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.  When a district court judge injects herself into plea negotiations, she removes herself from the role of an “independent examiner” and becomes “one of the parties to the negotiation” and “excessively involved in the negotiations themselves.”  Id.at 216 n.11, 156 N.W.2d at 223 n.11.  Irrespective of any demonstrated prejudice, the law is clear that a guilty plea is per se invalid when the district court judge impermissibly injects herself into plea negotiations.  State v. Anyanwu, 681 N.W.2d 411, 415 (Minn. App. 2004).

As an initial matter, respondent argues that appellant has no statutory right to appeal appellant’s conviction.  Here, the state is appealing from the sentence imposed by the district court pursuant to Minn. R. Crim. P. 28.04, subd. 1(2).   Furthermore, the state need not object to impermissible plea arrangements to preserve the issue for appeal.  See Anyanwu, 681 N.W.2d at 414 (stating that a party’s “failure to object to the court as a party to the plea arrangement is not fatal to [such a] claim because the arrangement itself is impermissible”).  And on a number of occasions, this court has heard appeals from the state claiming that a district court judge impermissibly injected himself or herself into a plea agreement.  See, e.g., State v. Vahabi, 529 N.W.2d 359, 360 (Minn. App. 1995); State v. Moe, 479 N.W.2d 427, 429-30 (Minn. App. 1992), review denied (Minn. Feb. 10, 1992).  Therefore, respondent’s argument lacks merit.

Minn. Stat. § 243.166, subd. 5(c) (2004), mandates that a sex offender who fails to register for a second time shall be committed to the commissioner of corrections for a minimum of two years, but not more than five.  Here, respondent’s handwritten responses on the “petition to enter a guilty plea” stated, under the section of the form discussing a plea agreement with the prosecutor, that the plea was a “straight plea to judge – deal w/ judge: 7 mos executed with work release; deft must complete psycho-sexual eval prior to sentencing + follow recs.”

During the plea hearing, respondent’s counsel spoke of a “deal” reached at a prehearing conference with the district court and repeated the conditions for the plea found in the petition.  No transcript exists of the prehearing conference.  The district court stated at the hearing that it was “willing to do a downward departure with those [probation] conditions.”  Appellant objected to any deal between the district court and respondent that departed from the presumptive sentence, stating that “the only agreement from the State is that [respondent] is entering a straight guilty plea, any other agreements are between the Court and [respondent] and [defense counsel]; the State is not agreeing to any departure in this case, and would be objecting at the time of sentencing.”  The district court responded, “That is absolutely true.”  

At sentencing, respondent’s counsel continued to refer to the “plea agreement” his client had made with the district court, and said, “Your honor, the plea agreement was with the Court.  It wasn’t with the State, it was with the Court.”  Consistent with the plea petition, the district court made a downward sentencing departure from the mandatory sentence and ordered respondent to serve seven months in jail, stayed the mandatory sentence and placed respondent on probation for five years, ordered respondent to pay a $1,000 fine, and required respondent to refrain from any contact with underage females.

Respondent argues that because the district court made clear that any downward departure was contingent on the findings of a psycho-sexual report and presentence investigation (PSI), and told respondent that he needed to make a good case for his amenability to probation at sentencing, there was no plea agreement.  However, the fact that the actual sentence was not imposed until after the PSI was completed and the sentencing hearing was held does not avoid the problem.  The district court ignored the recommendation of the PSI and rejected the corrections officer’s alternative probation terms—including an executed 365-day jail sentence—at the sentencing hearing.  The district court judge had committed herself at the time of the plea to disregard the sentencing guidelines and a standard PSI.

In Anyanwu, the district court promised defendant a sentence in advance, over the objection of the prosecutor.  681 N.W.2d at 415.  Here, as in Anyanwu, the district court usurped the role of counsel.  By stepping into the position of a party to the negotiation, the district court abandoned its role as an “independent examiner.”  Johnson, 279 Minn.at 216 n.11, 156 N.W.2d at 223 n.11.

Because the record shows that respondent reached a plea agreement with the district court and that the state did not participate in that part of the negotiation, we conclude that the district court was improperly involved in plea negotiations.  In this circumstance, we vacate the guilty plea, reverse the conviction, and remand for further proceedings before a different judge.

2.         Downward sentencing departure

The state next argues the district court abused discretion by granting respondent a downward dispositional departure from the presumptive executed sentence.  We need not address this issue because we reverse based on the district court’s improper participation in the plea negotiation.  We caution, however, that a district court’s conclusory finding of amenability to probation will not suffice to uphold a departure.  A district court must articulate “the particular substantial and compelling circumstances” for the departure on the record at the sentencing hearing or in writing.  Minn. Sent. Guidelines II.D.

            Reversed and remanded.