State of Minnesota, Respondent, vs. Alfred Hudson, Appellant.

State of Minnesota, Respondent, vs. Alfred Hudson, Appellant. A04-2276, Court of Appeals Unpublished, December 6, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2276

 

State of Minnesota,
Respondent,
 
vs.
 
Alfred Hudson,
Appellant.

 

Filed December 6, 2005

Reversed and remanded

Minge, Judge

 

Ramsey County District Court

File No. K9-04-1530

 

 

Mike Hatch, Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; 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, Richard Schmitz, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges the district court's rejection of his request to withdraw his guilty plea.  After the district court accepted his plea, appellant failed to appear for sentencing and allegedly gave police a false name.  Because appellant sought to withdraw his plea prior to sentencing, because the guilty plea was part of an agreement that provided for the sentence, and because the court sentenced appellant for a term greater than that in the agreement, we reverse and remand for withdrawal of the guilty plea and further proceedings.

FACTS

 

            Appellant Alfred Hudson was charged with assault in the second degree, in violation of Minn. Stat. § 609.222, subd. 1 (2002), and misdemeanor domestic assault, in violation of Minn. Stat. § 609.2242, subd. 1 (2002).  Appellant testified at his plea hearing that he hit the mother of two of his children and drove into her car with his car.

            Appellant pleaded guilty to assault in the second degree as part of a plea agreement, which provided for a downward durational departure to 33 months; a conditional release to Project Remand; and dismissal of the misdemeanor charge of domestic assault.  The agreement states that if the district court does not approve the agreement, appellant has "an absolute right to then withdraw [his] plea of guilty and have a trial."  After questioning, the court received appellant's petition to enter a plea of guilty. The following exchange then occurred:

The Court: Between now and the time of sentencing, you must cooperate with probation in the preparation of the Presentence Investigation.  You'll get some information to contact probation before you leave jail, and you have to do that.  If you don't, that could result in your immediate incarceration by failing to cooperate.  You must also remain law abiding, stay out of trouble, and return for sentencing.  Because if you don't do those things, Mr. Hudson, I don't have to follow the plea agreement.

The Defendant: Right.

The Court: You understand that?

The Defendant: Yes, ma'am.

The Court: Do you have any questions about that?

The Defendant: No.

 

The district court then scheduled a sentencing hearing for July 28, 2004.

            Appellant did not appear for the sentencing hearing on July 28 and the district court issued a bench warrant.  The next day appellant was stopped by the police and allegedly gave the police false information about his identity.  He was arrested for failure to appear and also charged with giving false information to the police.  On August 11, 2004, appellant appeared in district court for a sentencing hearing, but indicated that he wished to discharge his attorney and possibly withdraw his guilty plea.  The court continued the case.

            On September 1, 2004, appellant again appeared in court and made inconsistent statements.  Initially, appellant's counsel indicated to the district court that appellant was prepared for sentencing.  Appellant's counsel acknowledged that there were reasons for the court not to follow the plea agreement regarding sentencing, but requested that the court follow the agreement anyway.  The district court inquired about appellant's earlier request for different counsel, and asked appellant whether he was prepared to be sentenced that day.  Appellant first said that he was prepared to be sentenced, but then said he wished to withdraw his plea.  The court allowed appellant to speak with his counsel to clarify his position.  After consulting with appellant, appellant's counsel stated: "In his heart, he wants to withdraw his plea, but realistically thinks it's better for him to argue for the 33 months."  The court again asked appellant if he wanted to be sentenced, and he again said he wanted to withdraw his plea.  The court stopped the proceedings to allow appellant to speak with his counsel.

            After consulting with appellant, appellant's counsel argued that appellant should be allowed to withdraw his guilty plea for various reasons relating to appellant's physical and mental state at the time of the plea.  The district court denied appellant's motion.

            Following the denial of appellant's motion to withdraw his plea, the district court heard arguments on sentencing.  The state argued that there was no plea agreement in effect because appellant violated the court's order by not appearing at the sentencing hearing and being charged with another crime.  The state asked for a sentence of 57 months in prison due to the seriousness of the crime and appellant's prior criminal record. 

            Appellant's counsel indicated that if the court would not allow withdrawal of the plea, appellant would "strongly urge the Court to follow the plea agreement in this case."  He argued further in favor of honoring the plea agreement:

            My client negotiated.  And this was a lengthy, hard-fought negotiation that went over some time.  And this was an agreement that the State had agreed to with open eyes, based on all the facts and considerations that the appropriate sentence in this case was 33 months.  This is what the State was happy with.  For the State to come back now and ask for nearly double that time with the offense of causing it to be doubled, limited to him missing one court appearance where he had attended seven out of eight court appearances, we argue is unduly harsh. 

 

Appellant's counsel argued that there were mitigating circumstances surrounding appellant's false information charge, and disagreed with the state's characterization of appellant's criminal history and the assault charge.

            The district court acknowledged a plea agreement had been reached but went on to say, "I am not going to follow the agreement because of the failure on your part to show up for sentencing, which was a condition."  The court then sentenced appellant to 39 months.  This appeal follows.

D E C I S I O N

I.

            The first issue is whether this court should consider appellant's request to withdraw his guilty plea on a basis that was not clearly presented to the district court. 

            If the record is sufficient to consider the issue, a defendant can challenge his conviction based on an invalid guilty plea by a postconviction petition or by appealing directly to this court.  State v. Anyanwu, 681 N.W.2d 411, 413 n.1 (Minn. App. 2004).  In Anyanwu, the appellant challenged the district court's involvement in the plea negotiations, including making an agreement directly with the appellant with which the state explicitly disagreed.  Id. at 412-13.  This court held that the challenge could be heard for the first time on appeal because it was based "entirely on matters in the record, and no material fact disputes exist."  Id. at 413 n.1.  Similarly, in State v. Newcombe, this court considered the appellant's challenge to his guilty plea for the first time on appeal.  412 N.W.2d 427, 430-31 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).  In Newcombe, the basis for the appellant's challenge to the voluntariness and the factual basis of the plea was sufficiently discussed at the plea hearing to allow review on appeal.  Id. 

            A direct appeal to this court is inappropriate, however, where the record does not show the grounds for the challenge.  State v. Witte, 308 Minn. 214, 215, 245 N.W.2d 438, 438-39 (1976) (holding that challenge to guilty plea should not be heard for first time on appeal because while "facially" the state appeared to have violated the plea agreement and defendant appeared to have waived the violation by not objecting, the court felt it should not decide the issue "on the skimpy record before" it); State v. Tamminen, 282 Minn. 523, 523-24, 162 N.W.2d 369, 369 (1968) (holding that appellant's claim that his plea was based on wrongful inducement by his attorney to enter the plea could not be heard for the first time on appeal because the basis for the challenge was not in the record); Newcombe, 412 N.W.2d at 430.

            Here, the record is extensive.  Appellant stated the plea agreement at the plea hearing, and the district court repeated the agreement and added some conditions.  At the sentencing hearing, both the state and the court noted their reasons for not following the plea agreement on the record.  There is no indication that appellant's claims are based on anything other than statements by the parties and the court at appellant's hearings.  The record indicates that appellant contested allegations that he violated the court's conditions and argued that the state should not abrogate the plea agreement.  He noted that the state was arguing for a sentence in excess of the plea agreement and stated that he considered it "unduly harsh" for the state to make such an argument.  We conclude the record is adequate for us to consider appellant's claim. 

II.

            The second issue is whether appellant can withdraw his guilty plea because the district court did not sentence appellant according to the agreement.  The transcript of the plea hearing and the petition to enter a plea of guilty indicate that the agreement included a sentence of 33 months.  Following appellant's failure to appear at the sentencing hearing and his arrest for providing false information to the police, the state argued for a higher sentence (57 months) and the district court sentenced appellant to 39 months.

            "The district court's decision on whether to allow withdrawal of a guilty plea is reviewed under an abuse of discretion standard."  State v. Hamacher, 511 N.W.2d 458, 460 (Minn. App. 1994).  "What the parties agreed to involves an issue of fact to be resolved by the district court.  Issues involving the interpretation and enforcement of plea agreements, however, are issues of law that we review de novo."  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (citations omitted). 

            The rules of criminal procedure contemplate the withdrawal of a plea in several situations.  Minn. R. Crim. P. 15.05, subd. 1, permits the withdrawal of a guilty plea upon motion either before or after sentencing when "necessary to correct a manifest injustice."  Minn. R. Crim. P. 15.05, subd. 2, permits the withdrawal of a guilty plea before sentencing when "it is fair and just to do so," taking into consideration the defendant's reasons for the request and any prejudice to the state. 

            The procedure for presenting a plea agreement to the court is described in the rules of criminal procedure:

When such plea is tendered and the defendant questioned, the trial court judge shall reject or accept the plea of guilty on the terms of the plea agreement. The court may postpone its acceptance or rejection until it has received the results of a pre-sentence investigation. If the court rejects the plea agreement, it shall so advise the parties in open court and then call upon the defendant to either affirm or withdraw the plea.

 

Minn. R. Crim. P. 15.04, subd. 3(1).  The defendant does not forfeit the right to withdraw his plea if the court rejects the agreement even if he commits a crime or does something else that causes the court to reject the prior agreement.  State v. Kunshier, 410 N.W.2d 377, 380 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987).   

            In Kunshier, after the plea hearing but before sentencing, the defendant escaped from custody and allegedly committed other offenses.  Id. at 378.  At the sentencing hearing, the state recommended consecutive rather than concurrent sentences, contrary to the plea agreement.  Id. at 378-79.  The defendant made a motion to withdraw the plea, but the district court denied the motion and sentenced the defendant according to the state's recommendation for consecutive sentences.  Id. at 379.  This court held that the district court could not allow "appellant to plead guilty under circumstances indicating appellant reasonably thought he had a firm agreement" and then later impose a sentence not in accordance with the agreement without giving the defendant an opportunity to withdraw his guilty plea.  Id.  This court also held that the state could change its mind about a previous agreement based on subsequent events, but that the defendant had to then be allowed to withdraw his guilty plea.  Id.at 379-80. 

            Here, the district court discussed the plea agreement and accepted appellant's guilty plea.  At the sentencing hearing, the court chose not to follow the agreement but did not offer appellant an opportunity to withdraw his plea of guilty.  These events do not fit easily into the framework contemplated by Minn. R. Crim. P. 15.04, subd. 3(1).  The court seemed to accept the plea but reserve acceptance of the agreement itself for later.  However, the plea itself was given in exchange for the agreed-upon sentence.  Whether the court accepted the plea agreement on its terms and then changed its mind at the sentencing hearing or whether the court reserved a decision on acceptance until the sentencing hearing at which point it rejected the agreement, the district court should have given appellant an opportunity to withdraw his guilty plea. 

            Respondent argues that Kunshier is distinguishable because in that case there were no conditions on the plea agreement, whereas in this case the court stated several conditions to the court's acceptance of the agreement.  A district court is supposed to "reject or accept the plea of guilty on the terms of the plea agreement."  Minn. R. Crim. P. 15.04, subd. 3(1).  If conditions added by a district court are not incorporated into the plea agreement, the agreement is ambiguous.    

            The district court's addition of conditions did not affect appellant's right to withdraw his guilty plea when the district court chose not to follow the plea agreement.  Nothing in the conditions themselves or in the plea agreement indicated that appellant could not withdraw his plea if he failed to follow the conditions.[1]  See Perkins v. State, 559 N.W.2d 678, 683, 686 (Minn. 1997) (holding that appellant could not withdraw guilty plea where plea petition indicated that appellant could not withdraw guilty plea if court chose not to accept sentencing recommendation); Hamacher, 511 N.W.2d at 459 (holding that appellant could not withdraw plea where agreement itself said that if appellant did not meet conditions of treatment and would need to be sentenced to prison instead, he would likely be prohibited from withdrawing guilty plea).  In fact, the plea petition explicitly stated appellant could withdraw his plea of guilty if the court chose not to accept the plea agreement.  In State v. Kealy, the plea agreement required the state to make a recommendation as to sentencing and the agreement stated that the appellant could withdraw his guilty plea if the court chose not to follow the recommendation.  319 N.W.2d 25, 25-26 (Minn. 1982).  The court held that appellant was entitled to withdraw his guilty plea due to the language in the petition when the court chose not to follow the recommendation.  Id.       

            Respondent argues that by adding conditions, the court converted the original agreement on sentencing into a recommendation it would consider if appellant followed the conditions stated.[2]  Respondent cites no law for the proposition that a court can convert a plea agreement into a plea recommendation.  Action by the court does not "convert" the nature of an agreement made by the state and the appellant, to which the court was not a party.

            The district court did not follow the plea agreement and appellant is therefore entitled to withdraw his guilty plea.  Appellant's failure to meet the conditions added by the district court does not bar appellant's withdrawal of his plea.  We reverse and remand to permit appellant to withdraw his guilty plea and for further proceedings. 

            Appellant also claims that we should reverse and allow withdrawal of the plea because the state refused to honor its commitment to recommend an agreed-upon sentence.  Whether the state breached the plea agreement is unclear.  However, given the result we reach on appellant's right to withdraw his plea based on the action of the district court, we need not decide whether the state's actions are also a basis for permitting appellant to withdraw his plea. 

            Reversed and remanded.

[1] Even if the court had explicitly indicated that if the conditions were not followed appellant would not be able to withdraw his plea of guilty, it is unclear if appellant would be held to such conditions.  Plea agreements do not directly fit traditional contract analysis.  Appellant should have had an opportunity to consult with counsel and withdraw his plea before accepting modifications proposed by the trial court.  

[2] Unlike the situation where a court rejects a plea agreement containing an agreement as to sentencing, where the plea agreement only provides that the state will make a recommendation as to sentencing, the defendant can withdraw his guilty plea after the court refuses to follow the recommendation only if "he mistakenly believed that he could withdraw his plea if the trial court rejected the prosecutor's recommendation or . . . there is some other ground for withdrawal."  State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988).