State of Minnesota, Respondent, vs. Jeffrey Kempf, Appellant.

State of Minnesota, Respondent, vs. Jeffrey Kempf, Appellant. A06-315, Court of Appeals Unpublished, August 14, 2007.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-315

 

State of Minnesota,

Respondent,

 

vs.

 

Jeffrey Kempf,

Appellant.

 

Filed August 14, 2007

Affirmed

Randall, Judge

 

Anoka County District Court

File No. K5-04-1928

 

 

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

 

Robert Johnson, Anoka County Attorney, Kristin C. Larson, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

 

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

 

            Considered and decided by Klaphake, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

 

RANDALL, Judge

This appeal is from a conviction of first-degree controlled-substance offense and gross-misdemeanor child endangerment.  Appellant argues that the district court abused its discretion in denying his motion to withdraw his guilty plea.  We find no abuse of discretion.  We affirm.

F A C T S

Appellant pleaded guilty to felony first-degree controlled-substance offense and gross-misdemeanor child endangerment.  The plea agreement called for an executed sentence under the Minnesota Sentencing Guidelines, with the understanding that appellant would seek a downward departure.  The court agreed to consider a downward departure if appellant met a number of conditions, including: abstaining from using controlled substances, not possessing or using dangerous weapons, attending AA meetings, remaining law-abiding, cooperating with the pre-sentence investigation, and submitting to urinalysis for drug testing. The court explained that if appellant violated those conditions the court would sentence and commit appellant to prison. 

The court stated, "I don't care what excuse [for violating the conditions] there is.  If you're a drug addict, that's fine.  You can't be a drug addict anymore.  If you use once when you're on probation with me, if you're caught using, I'll send you to prison."  The plea agreement provided that if the court decided not to depart dispositionally, appellant would be allowed to withdraw his guilty plea.  However, it was clear on the record that if the court's reason for not departing was appellant's violation of any condition, the court would not allow appellant to withdraw his guilty plea.    Appellant, in the presence of counsel, stated that he understood all the terms of the agreement.  The court deferred acceptance of appellant's plea, released appellant subject to the various conditions, and set a sentencing hearing date.

            Pending his sentencing, appellant attempted to provide a fraudulent urine sample to Anoka County Corrections.  On another occasion, he failed to meet with a corrections agent for his pre-sentence investigation.  A hearing was held regarding appellant's alleged violations of the conditions of his release.  Appellant was released on a furlough to attend Eden House, a residential-drug treatment program.  He absconded from treatment at Eden House. 

A continuance of sentencing was later granted pending a psychopharmacologic evaluation. At this hearing, the prosecutor argued that appellant was delaying sentencing and attempting to add mitigating factors since "the [appellant] knows if the Court decides not to depart based on his conduct from the date of the plea until now, he can't withdraw his guilty plea."   

            At the sentencing hearing, the court restated the plea agreement:

[Appellant] gave me a plea.  It was a sentence under the guidelines.  I gave him and the two attorneys an indication that I might be convinced to dispositionally depart, but there were a lot of conditions about that.  One was to get a PSI.  The second was all of his post-hearing behavior.  And I made it clear to everybody in this courtroom . . . certainly to [appellant], who acknowledged that he understood what I was telling him, that I would determine whether or not he was entitled to a departure in part [based] on his post-plea behavior.

 

And that if I concluded his post-plea behavior was inconsistent with the ground rules that I laid out on his conditions of release, I wasn't going to let him withdraw his plea.

 

Both the prosecutor and defense counsel agreed that this was a correct reflection of the record.  The district court determined that the only issue before it was if it would allow appellant to withdraw his guilty plea, due to the denial of a dispositional departure based on post-plea conduct.  The court denied appellant's motion to withdraw his guilty plea.  This appeal followed.

D E C I S I O N

When a plea agreement has been rejected by the court, it must advise the parties in open court and call on the defendant either to affirm or withdraw his plea.  Minn. R. Crim. P. 15.04, subd. 3(1).  Here, there was no rejection by the district court of the plea agreement.  The plea agreement called for the right to withdrawal if there was not a downward departure, but the plea agreement called for no right to withdraw the guilty plea if the conditions set by the court to control appellant's behavior until sentencing were not met.  The plea agreement was sound, it was logical and fair to appellant, and it was complied with.

This case is not like State v. Tyska, 448 N.W.2d 546 (Minn. App. 1989).  In Tyska, a plea agreement was reached that specifically provided that the state agreed to the presumptive sentence.  Id.  The agreement also provided that if the court did not approve the agreement, the defendant would have an absolute right to withdraw his plea of guilty.  Id.  The district court's sentence departed upwardly from the Minnesota Sentencing Guidelines.  Id. at 548.  The court then denied defendant's motion to withdraw his guilty plea.  Id.  This court held that the departure entitled the defendant to withdraw his plea of guilty, and therefore, the denial of the motion to withdraw was in error.  Id.  at 549-50.

Here, appellant's plea petition stated that there was an absolute right to withdraw his guilty plea if the court did not approve the plea agreement, but at the plea hearing, the parties agreed that if the court decided not to dispositionally depart, appellant would be allowed to withdraw his guilty plea.  However, the parties further agreed, based on the court's promise to consider a downward departure subject to specific conditions, that if the reason for not departing from the sentencing guidelines was appellant's conduct after that date, appellant would not be allowed to withdraw his guilty plea.  This understanding was again displayed at the sentencing hearing.

Appellant argues that the plea petition's language, when compared to the on-record colloquy between the court and appellant, created a clear conflict that should have been resolved in favor of permitting withdrawal of the plea.  We disagree strongly.  The plea agreement, as ultimately constituted, presented a clear qualified promise to appellant as to his right to withdraw the guilty plea.  The promise was that if appellant refrained from using controlled substances, remained law-abiding, cooperated with the pre-sentence investigation, refrained from possessing or using dangerous weapons, attended AA meetings, and submitted to urinalysis drug testing, appellant would be entitled to withdraw his guilty plea in the event that the court decided not to grant a downward departure.  Appellant did not comply with all conditions.  His noncompliance is not in dispute.[1]

Appellant has made a motion to stay this appeal and remand for an evidentiary hearing on whether appellant was under the influence of a chemical substance at the time of the guilty-plea hearing so as to render the plea invalid.  This court denied the motion by a separate order, but with the specific understanding that the validity of the guilty plea, as affected by any chemical substance that appellant now claims he took before the plea hearing, is an issue that is not foreclosed.  Appellant retains all his statutory rights to raise issues (not foreclosed by the law-of-the-case doctrine) in a postconviction petition.

            Affirmed.

[1] In general, a defendant's post-plea conduct may not be used to support a departure from the agreed-on sentence without giving the defendant an opportunity to withdraw his guilty plea.  State v. Kunshier, 410 N.W.2d 377, 379-80 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987); see also State v. Kortkamp, 560 N.W.2d 93, 95 (Minn. App. 1997) (applying Kunshier where state failed to keep promise to recommend a certain sentence because of defendant's post-plea conduct).  But appellant does not argue in his brief that imposing the presumptive sentence violated Kunshier.  Here, there was an explicit agreement by appellant, unlike in Kunshier, that appellant's sentence under the plea agreement would depend on post-plea conduct.  Therefore, there is no Kunshier issue to address.