A06-2086

State of Minnesota,

Respondent,

vs.

Lloyd W. Kuefner,

Appellant.

Filed September 25, 2007

Reversed and remanded

Hudson, Judge

Waseca County District Court

File No. K3-01-43

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Paul M. Dressler, Waseca County Attorney, Waseca County Courthouse, 307 North State Street, Waseca, Minnesota 56093 (for respondent)

John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

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

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

HUDSON, Judge

In this appeal from an order revoking his probation and executing his sentence, appellant Lloyd Kuefner argues that the district court erred by failing to make the findings required by State v. Austin,295 N.W.2d 246 (Minn. 1980), before revoking his probation. Kuefner also argues that the court violated his plea agreement by sentencing him to a concurrent sentence that was four months longer than the sentence provided in the plea agreement. Because the district court failed to make the Austin findings and sentenced Kuefner to a longer prison term than that provided in the plea agreement, we reverse and remand.

FACTS

In November 2000, four-year-old T.S. told law-enforcement authorities that appellant Lloyd Kuefner had inserted his penis in her anus, mouth, and vagina. The state charged Kuefner with three counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. Kuefner subsequently pleaded guilty to two counts of second-degree criminal sexual conduct.

The plea agreement provided for a stayed upward departure of up to 50 months. The trial court accepted the plea agreement, but it sentenced Kuefner to stayed concurrent sentences of 54 months on one count and 42 months on the other, with a five-year conditional-release term.

In August 2006, the district court revoked Kuefner’s probation and executed his sentence. Before revoking Kuefner’s probation, the court made a lengthy statement on the record but did not make the findings required by State v. Austin, 295 N.W.2d 246 (Minn. 1980). This appeal from the revocation order and sentence follows. The state did not file a brief.

D E C I S I O N

Kuefner first argues that the district court erred by revoking his probation without first making the findings that Austin requires. We agree.

Generally, the district court has broad discretion when determining whether probation has been violated and will not be reversed absent an abuse of discretion. State v. Ornelas, 675 N.W.2d 74, 79 (Minn. 2004). Although the district court’s findings are accorded great weight and should not be overturned unless clearly erroneous, whether the district court made the findings necessary to revoke probation is a question of law subject to de novo review. State v. Modtland, 695 N.W.2d 602, 605 (Minn. 2005).

Before revoking a defendant’s probation, the district court must designate the conditions of probation the defendant violated and find that the defendant’s violations were intentional or inexcusable. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980). The court must also weigh the defendant’s liberty interest against the state’s interest in the defendant’s rehabilitation and in protecting public safety, and it must determine whether the need for confinement outweighs the policies favoring probation. Id. In so doing, the court must “convey [the] substantive reasons for revocation and the evidence [it] relied upon.” Modtland, 695 N.W.2d at 608. District courts “should not assume that they have satisfied Austin by reciting the three factors and offering general, non-specific reasons for revocation, as it is not the role of appellate courts to scour the record to determine if sufficient evidence exists to support the district court’s revocation.” Id. In the absence of Austin findings, this court will reverse a probation-revocation order even if the record contains sufficient evidence to warrant revocation. Id. at 606.

Here, the district court made a lengthy statement on the record before revoking Kuefner’s probation. But the court failed to make the findings Austinrequires and its statement did not otherwise convey its reasons for revoking probation or the evidence on which it relied. Because there is no fact-specific record setting forth the court’s reasons for revoking probation, we reverse the revocation order and remand for specific findings on the Austin factors.

Kuefner next argues that because the sentencing court imposed a longer sentence than the sentence provided in the plea agreement, his sentence should be reduced or he should be allowed to withdraw his plea. Kuefner’s claim has merit.

Whether to allow a defendant to withdraw a guilty plea is a decision within the district court’s wide discretion. State v. Hamacher, 511 N.W.2d 458, 460 (Minn. App. 1994). This court will reverse that decision only if the district court abused its discretion. Bolinger v. State, 647 N.W.2d 16, 20–21 (Minn. App. 2002). Questions regarding the terms of a plea agreement are questions of fact subject to a clearly erroneous standard of review; questions involving the interpretation and enforcement of a plea agreement, on the other hand, are questions of law subject to de novo review. State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).

A criminal defendant does not have an absolute right to withdraw a guilty plea once the plea has been entered. Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). The rules of criminal procedure allow a defendant to withdraw a plea, before or after sentencing, when “necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. “[A] defendant should be allowed to withdraw his guilty plea if an unqualified promise is made on the sentence to be imposed and that promise is not fulfilled.” Black v. State, 725 N.W.2d 772, 776 (Minn. App. 2007); State v. Kunshier, 410 N.W.2d 377, 379 (Minn. App. 1987) (stating that a district court may not allow a defendant “to plead guilty under circumstances indicating that [the defendant] reasonably thought he had a firm agreement,” and then impose a sentence that is not in accordance with the agreement, without giving the defendant an opportunity to withdraw the plea), review denied (Minn. Oct. 21, 1987). A district court must “reject or accept [a] plea of guilty on the terms of the plea agreement.” Minn. R. Crim. P. 15.04, subd. 3(1). If the court rejects the plea agreement, it must advise the parties in open court and ask the defendant to affirm or withdraw the plea. Id.

Both the transcript of the plea hearing and Kuefner’s petition to enter a guilty plea indicate that Kuefner agreed to plead guilty in exchange for a sentence that included a stayed upward departure of up to 50 months. The trial court discussed the plea agreement with Kuefner and accepted his guilty plea. But the court imposed a stayed sentence that was longer than the agreed-on sentence. After the revocation hearing, the district court executed the sentence. Because Kuefner agreed to plead guilty in exchange for the 50-month agreed-on upward departure, the district court erred by failing to advise Kuefner that it had, in effect, rejected the plea agreement and by not giving him an opportunity to affirm or withdraw his plea. We therefore reverse the sentence and remand to allow Kuefner the opportunity to affirm or withdraw his plea. If Kuefner affirms the guilty plea, the district court may proceed to the remand on the probation revocation.

Reversed and remanded.

Dated: _________________ _______________________________________

Judge Natalie E. Hudson