State of Minnesota, Respondent, vs. Scott E. Weiss, Sr., Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

IN COURT OF APPEALS

State of Minnesota,
Respondent,
 
vs.
 
Scott E. Weiss, Sr.,
Appellant.

Affirmed

Ramsey County District Court

File No. K5952990

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and

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

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Willis, Judge.

CRIPPEN, Judge

            Appellant Scott Weiss, Sr., contends that he is entitled to withdraw his guilty plea under State v. Garcia and its progeny, arguing that the trial court's imposition of a conditional-release term after his sentencing violated a promise that was part of his plea agreement.  Because Garcia does not control the circumstances of this case, appellant is not entitled to withdraw his guilty plea, and we affirm.

            In 1995, appellant pleaded guilty to one count of criminal sexual conduct in the third degree.  His plea petition stated that the prosecutor would recommend a sentence of 120 months, would not refer appellant for civil commitment, and would not prosecute appellant on other complaints.  The court sentenced appellant in accordance with the terms of the recommendation, with 80 months in prison and 40 months on supervised release.  In June 1999, appellant was notified that the trial court modified his sentence to include the ten-year conditional-release term that was required by Minn. Stat. § 609.346, subd. 5(a) (1996), at the time of his original sentencing.  Appellant then filed a motion to withdraw his plea, and the trial court denied this motion.

A criminal defendant has no absolute right to withdraw a guilty plea.  Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).  But a defendant may withdraw a guilty plea after sentencing, upon a "timely motion" and establishing that "withdrawal is necessary to correct a manifest injustice."  Minn. R. Crim. P. 15.05, subd. 1; see also Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  Ultimately, whether to permit withdrawal of a guilty plea is within the trial court's discretion and will be reversed only when that discretion is abused.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

            In Garcia, the Minnesota Supreme Court held that a plea agreement that promised an executed sentence but did not include the conditional-release term was unauthorized by law, because the conditional-release term is mandatory and non-waiveable.   State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998).  Because the required sentence conflicted with the sentence that was promised, the court stated that the defendant "must be allowed to withdraw from the plea agreement if he so chooses."  Id.  Appellant contends that he was promised a 120-month executed sentence, this promise was violated by the subsequent addition of the conditional-release term, and under Garcia the trial court must allow him to withdraw his plea.

            As respondent correctly suggests, the promise in appellant's case was significantly different from that in Garcia, and as such the Garcia decision does not govern this case.  The prosecution promised in appellant's plea agreement that it would recommend a sentence of 120 monthsand the prosecutor fulfilled this promise.  A defendant who pleads guilty in exchange for an agreed-upon sentence faces a very different situation from a defendant who exchanges a guilty plea for the state's recommendation of a sentence.  See Perkins, 559 N.W.2d at 688 (holding that, if sentencing court rejects a mere recommendation made pursuant to a plea agreement, the defendant may not withdraw the plea unless the defendant can establish that he mistakenly believed he could withdraw the plea if the sentencing court rejected the recommendation, or there is some other ground for withdrawal).  The court's subsequent imposition of a mandatory conditional-release term did not violate the plea agreement.

Affirmed.