This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-97-974

Steven Hendricks Blondheim,

petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed December 9, 1997

Reversed and remanded

Klaphake, Judge

Olmsted County District Court

File No. K7-96-520

Steven Hendricks Blondheim, MCF-Stillwater, P.O. Box 55, Stillwater, MN 55082-0055 (Appellant Pro Se)

Hubert H. Humphrey, III, Attorney General, Robert Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 Fourth Street SE, Rochester, MN 55904 (For Respondent)

Considered and decided by Huspeni, Presiding Judge, Klaphake, Judge, and Harten, Judge.

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

KLAPHAKE, Judge

Appellant Steven Hendricks Blondheim pleaded guilty to one count of first-degree criminal sexual conduct for sexually penetrating T.K.C., a minor. See Minn. Stat. § 609.342, subd. 1(a) (1994). The trial court sentenced appellant to a 78-month executed prison term and ordered him to pay a fine of $12,000 and restitution of $3,976.50.

In this pro se postconviction appeal, appellant claims the postconviction court erred in denying him an evidentiary hearing and in refusing to allow him to withdraw his guilty plea because his counsel was ineffective, the trial court coerced his plea, and the trial court imposed a sentence contrary to the plea agreement. Because we conclude that the trial court should have allowed appellant to withdraw his guilty plea when its sentence included a $12,000 fine not contemplated in the plea agreement, we reverse and remand.

D E C I S I O N

A sentencing court has discretion to order restitution, even where restitution is not expressly contemplated in a plea agreement. See Minn. Stat. § 609.10(5) (1996); State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993), review denied (Minn. Dec. 22, 1993). It is clear from this record that restitution was "potentially involved." Anderson, 507 N.W.2d at 247. Appellant's presentence investigation report recommended restitution, and at the sentencing hearing appellant's attorney acknowledged that appellant should pay some restitution.

However, unlike the restitution ordered, the $12,000 fine was not contemplated prior to sentencing. Other than a reference to the statutory maximum fine of $40,000 in appellant's criminal complaint, there is no reference to a fine in the record until at sentencing. Further, the trial court did not offer appellant the opportunity to withdraw his plea when it sentenced him in contravention of the plea agreement. When a court declines to impose a plea agreement as to a sentence, the defendant may withdraw his guilty plea. Perkins v. State, 559 N.W.2d 678, 687 (Minn. 1997) (distinguishing between "recommended" and "agreed-upon" sentences in determining whether to allow withdrawal of guilty plea). Here, the state contends that the plea should stand because the only addition to the plea agreement was the fine, which was a mandatory minimum fine required by statute. See Minn. Stat. § 609.101, subd. 2 (1996) (requiring imposition of fine of "not less than 30 percent of the maximum fine authorized by law"). We disagree. Because the parties were mutually mistaken in failing to include the fine in the plea agreement, appellant should be allowed to withdraw his plea to correct a manifest injustice. See State v. DeZeler, 427 N.W.2d 231, 234-35 (Minn. 1988) (if mutual mistake exists in plea agreement, defendant entitled to withdraw plea); Minn. R. Crim. P. 15.05, subd. 1 (court may allow withdrawal of plea if "necessary to correct manifest injustice").

Because of our decision to allow appellant to withdraw his plea, we decline to rule on the other issues raised by appellant in this appeal.

Reversed and remanded.