Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

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

Considered and decided by Peterson, Presiding Judge, Parker, Judge, and Willis, Judge

On appeal from an order denying postconviction relief, Jeffrey Matthew Jeanetta argues that the district court erred when it imposed the presumptive sentence. We affirm.

On May 13, 1995, Jeanetta was arrested under a different name and charged with first-degree controlled substance crime for possession with intent to sell methamphetamine. As a result of this arrest, the 1993 warrant was discovered, and Jeanetta appeared for an omnibus hearing on both the 1993 and 1995 charges. Both cases were set for trial. At a pretrial hearing, Jeanetta rejected a proposed plea agreement.

After appearing for trial, Jeanetta entered guilty pleas to an amended charge of second-degree controlled substance crime for the 1993 offense and to an amended charge of second-degree controlled substance crime for the 1995 offense. It was also agreed that the state would request that the court impose presumptive sentences, and Jeanetta would move for a downward durational departure. Based on assumptions about Jeanetta's criminal history, the parties believed the presumptive sentence was 58 months.

At sentencing, it was discovered that Jeanetta's criminal history score was greater than had been assumed, and Jeanetta faced a presumptive sentence of 108 months. Because Jeanetta thought when he pleaded guilty that he would be sentenced to 58 months, the court gave him one week to consider withdrawing his plea. The court also made it clear that grounds for a downward durational departure did not exist.

Jeanetta withdrew his guilty plea, and later the same day, accepted a new plea offer. Under the new agreement, Jeanetta pleaded guilty to a third-degree controlled substance crime for the 1993 offense and a second-degree controlled substance crime for the 1995 offense, and the state dismissed the other charges and agreed to a guidelines sentence. The guilty pleas were accepted, and Jeanetta was sentenced to 84 months for the 1995 offense and a concurrent 65 months for the 1993 offense.

In a pro se petition for postconviction relief, Jeanetta requested that the court honor the 58-month sentence of the initial plea agreement and modify his sentence to permit him to participate in a specific corrections program. The postconviction court denied the petition.

Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

Jeanetta argues that the trial court was obligated to impose a sentence of 58 months, the expected sentence under the initial plea agreement. We disagree.

A 58-month sentence was never part of the initial plea agreement. The plea agreement provided only that the state would ask the court to impose the presumptive sentence, and appellant would ask the court for a downward durational departure. The agreement became unsatisfactory to appellant when an accurate determination of his criminal history score revealed that the presumptive sentence was longer than 58 months. Jeanetta then was permitted to withdraw his guilty plea, but accepted a new plea offer, which did not include a 58-month sentence. The postconviction court found that Jeanetta knew before he was sentenced what his sentence would be but declined to withdraw his guilty plea. There is ample evidence to sustain this finding.

Jeanetta next argues that he is entitled to a downward durational departure because the entire objective of his guilty plea was to permit him to participate in a specific corrections program that is available only to inmates whose sentences are less than a certain number of months. We disagree.

The decision whether to depart from the sentencing guidelines is within the district court's discretion. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Absent a clear abuse of that discretion, we will not interfere with the district court's decision to impose a presumptive sentence. See id. (only a rare case would warrant reversing refusal to depart); State v. Casady, 392 N.W.2d 629, 634 (Minn. App. 1986) (this court defers to district court's discretion in sentencing unless it is clearly abused), review denied (Minn. Sept. 24, 1986).

Jeanetta has not cited, and we are not aware of, any authority that establishes either a constitutional or statutory right to participate in a particular corrections program. Absent such a right, the postconviction court did not abuse its discretion when it denied Jeanetta's petition.

Affirmed.