State of Minnesota, Appellant, vs. Scott James Schmit, Respondent.

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 C4-98-1509

State of Minnesota,
Appellant,

vs.

Scott James Schmit,
Respondent.

 Filed February 2, 1999
 Reversed and remanded
Willis, Judge

Scott County District Court
File No. 9719285

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Thomas J. Harbinson, Scott County Attorney, Diane M. Hanson, Michael J. Groh, Assistant County Attorneys, 200 West Fourth Street, Shakopee, MN 55379 (for appellant)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for respondent)

Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

The state appeals from the district court's negotiated agreement to accept respondent Scott James Schmit's Alford plea to a charge of first-degree criminal sexual conduct and from the 86-month sentence imposed by the court pursuant to the agreement. We reverse and remand.

FACTS

Schmit pleaded guilty to one count of first-degree criminal sexual conduct. Pursuant to a plea bargain, the district court agreed to dismiss a second count of first-degree criminal sexual conduct upon sentencing. But the district court did not sentence Schmit immediately because the state filed a second complaint against Schmit for first-degree criminal sexual conduct involving another victim.

Over the state's objection, the district court accepted Schmit's Alford plea to the charge of first-degree criminal sexual conduct in the second complaint and sentenced him to an 86-month prison term, to run concurrently with the 86-month presumptive sentence imposed by the district court earlier in the day on the other charge of first-degree criminal sexual conduct. The state's appeal followed.

D E C I S I O N

I. Participation in Plea Negotiations

The state claims the district court erred by impermissibly injecting itself into plea negotiations with Schmit. Generally, plea negotiations involve only the prosecuting attorney and the defendant, through defense counsel. Minn. R. Crim. P. 15.04, subd. 1. While the court does have responsibility to accept or reject a plea agreement, "the court should neither usurp the responsibility of counsel nor participate in the plea bargaining negotiation itself." State v. Johnson, 279 Minn. 209, 216, 156 N.W.2d 218, 223 (1968); see also Minn. R. Crim. P. 15.04, subd. 3 (listing responsibilities of judge); State v. Nelson, 257 N.W.2d 356, 359 n.1 (Minn. 1977) (noting that judges should be cautious not to participate impermissibly in plea negotiations).

This court has held that "`[i]t is error for a trial court judge to participate directly in plea agreement negotiations.'" State v. Vahabi, 529 N.W.2d 359, 360-61 (Minn. App. 1995) (quoting State v. Moe, 479 N.W.2d 427, 430 (Minn. App. 1992), review denied (Minn. Feb. 10, 1992)). In Vahabi, the district court "imposed a plea agreement, including an anticipated sentencing result." Id. at 361. In Moe, the court offered the defendant a reduced sentence if he cooperated with the police. 479 N.W.2d at 429. In both cases, we reversed and remanded. Vahabi, 529 N.W.2d at 361; Moe, 479 N.W.2d at 430.

Here, in discussions on the record, the district court indicated a willingness to impose a concurrent sentence of 86 months on the second complaint in return for Schmit's Alford plea. The state voiced objections both to the Alford plea and to the proposed sentence. The court recognized that the state did not agree with its negotiated settlement, and Schmit concedes on appeal that the court's conduct was improper.

Because the district court erred by injecting itself impermissibly into plea negotiations with Schmit, we vacate the plea and the conviction entered and remand for further proceedings consistent with this opinion. On remand, the case shall be reassigned to a district court judge other than the judge who accepted Schmit's plea and sentenced him.

II. Acceptance of Alford Plea

The state claims that the district court abused its discretion in allowing Schmit to enter an Alford plea. See State v. Goulette, 258 N.W.2d 758, 761 (Minn. 1977) (holding court may accept guilty plea from defendant claiming innocence but conceding the state's evidence is sufficient for conviction). Because we vacate the Alford plea on other grounds, we need not address this issue or Schmit's claim that the state has waived the issue.

III. Downward Departure in Sentencing

The state also claims that the district court abused its discretion by imposing on the second conviction a sentence that departed downwardly from the presumptive sentence. Because we are vacating the plea and conviction on which sentence was imposed, we do not address the issue.

Reversed and remanded.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.