This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0944
State of Minnesota, Respondent,
vs.
Lamar King, Appellant.
Filed January 26, 2015 Affirmed in part and remanded Halbrooks, Judge
St. Louis County District Court File No. 69VI-CR-12-1161
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark Rubin, St. Louis County Attorney, Leah A. Stauber, Assistant County Attorney, Duluth, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Halbrooks, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
In this probation-revocation appeal, appellant argues that (1) his guilty plea was
involuntary because the district court imposed a sentence that violated the plea agreement and (2) the district court abused its discretion when it revoked appellant’s probation and
executed his sentence after determining that appellant intentionally and inexcusably
violated his probation and that the need for confinement outweighs the policies favoring
probation. Because we conclude that the district court acted within its discretion by
revoking appellant’s probation and executing his sentence, we affirm in part. But
because we conclude that appellant’s guilty plea was involuntary, we remand to the
district court for plea withdrawal or sentence modification.
FACTS
On July 17, 2012, appellant Lamar King hit two victims in the face with an open
hand. Police officers observed that both victims had red marks on their faces, one victim
had red marks on her upper chest, and the other victim’s left eye was swollen. The state
charged King with two counts of fifth-degree assault, which were enhanced to the felony
level because King had two prior qualified domestic violence-related convictions within
three years.
On September 13, 2013, King pleaded guilty to both counts of felony fifth-degree
assault. The parties entered into a plea agreement that stated that (1) the sentences would
run consecutively, (2) the sentence for count one would be a bottom-of-the-box sentence,
and (3) the parties would recommend a downward dispositional departure. Based on
King’s criminal-history score, a bottom-of-the-box sentence for count one was 26
months. On October 14, 2013, the district court sentenced King to 30 months for count
one—a middle-of-the-box sentence. The district court did not expressly reject the plea
agreement, and neither party noted the discrepancy between the agreed-upon 26-month
2 sentence and the imposed 30-month sentence. The district court also imposed a
consecutive one-year-and-one-day sentence for count two and stayed both sentences for a
period of three years, placing King on probation. The stayed sentences constituted a
downward dispositional departure. The district court based the departure on its finding
that King was amenable to treatment and probation and noted that the state recommended
a downward departure. King’s conditions of probation required that he (1) not use or
possess alcohol or drugs, (2) submit to random testing, (3) not possess firearms or
dangerous weapons, and (4) remain law-abiding, among other conditions.
On January 8, 2014, King’s probation officer filed a recommendation to vacate the
stay of execution on King’s sentence because he had violated the conditions of his
probation. The probation officer’s report stated that, on January 7, King possessed
alcohol, admitted to consuming alcohol, and failed to submit to random testing. On
February 11, 2014, King’s probation officer again filed a recommendation to vacate the
stay of execution because King had violated the conditions of his probation by being in
possession of a firearm on February 7 and by failing to remain law-abiding because he
was charged with being a felon in possession of a firearm and carrying a weapon without
a permit.
The district court held a contested probation-violation hearing. Witnesses gave
conflicting testimony regarding whether King used alcohol or refused to submit to testing
on January 7, 2014. The witnesses also gave conflicting testimony regarding whether
King was in possession of a firearm on February 7, 2014. The district court found that
King violated his probation by consuming alcohol and refusing to submit to random
3 testing on January 7, 2014. The district court also found that King violated his probation
by possessing a firearm on February 7, 2014. The district court found that the violations
were intentional and inexcusable and that the need for confinement outweighs the
policies favoring probation.
The district court revoked the stay of execution on both counts and committed
King to the commissioner of corrections for a period of 30 months, with credit for 262
days, and for a consecutive period of one year and one day. This appeal follows.
DECISION
I.
King argues that his guilty plea was not voluntary because it was induced by an
unfulfilled promise, and therefore he is entitled to plea withdrawal or sentence
modification. Courts must allow a defendant to withdraw a guilty plea if withdrawal is
necessary to correct a manifest injustice. Minn. R. Crim. P. 15.05, subd. 1. A manifest
injustice exists when a guilty plea is not valid. State v. Theis, 742 N.W.2d 643, 650
(Minn. 2007). A plea is invalid when it is not accurate, intelligent, or voluntary. Id.
“The voluntariness requirement insures that a guilty plea is not entered because of any
improper pressures or inducements.” State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000)
(quotation omitted). “To determine whether a plea is voluntary, the court examines what
the parties reasonably understood to be the terms of the plea agreement.” State v.
Raleigh, 778 N.W.2d 90, 96 (Minn. 2010). We review the validity of a guilty plea
de novo. Id. at 94.
4 “[A] district court may, in its discretion, refuse to accept a plea agreement and is
not bound by a plea agreement as to any sentence to be imposed.” Johnson v. State, 641
N.W.2d 912, 918 (Minn. 2002). But the Minnesota Rules of Criminal Procedure provide
that if a district court rejects a plea agreement, “it must 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 district court must also make sure that the defendant
understands that “[i]f the court does not approve the plea agreement, the defendant has an
absolute right to withdraw the guilty plea and have a trial.” Minn. R. Crim. P. 15.01,
subd. 1(6)(n).
“[A] defendant who pleads guilty in exchange for an agreed-upon sentence faces
different consequences than a defendant who exchanges a guilty plea for the state’s
recommendation of a certain sentence.” Perkins v. State, 559 N.W.2d 678, 687 (Minn.
1997). If the district court rejects an agreed-upon sentence, “the defendant is entitled to
withdraw [the] plea.” State v. DeZeler, 427 N.W.2d 231, 234 (Minn. 1988). An agreed-
upon sentence is a promise, and if that promise induces a guilty plea, the district court has
“no discretion to reject without tendering to appellant his right to withdraw that plea and
stand trial.” State v. Kunshier, 410 N.W.2d 377, 379-80 (Minn. App. 1987), review
denied (Minn. Oct. 21, 1987). But if the district court rejects a mere recommendation for
a certain sentence, then the defendant is not entitled to plea withdrawal, “unless the
defendant can establish either (a) that the defendant mistakenly believed he or she could
withdraw the plea if the sentencing court rejected the recommendation, or (b) that there is
some other ground for withdrawal.” Perkins, 559 N.W.2d at 687.
5 Here, the plea agreement stated:
In exchange for my agreement to plead guilty to both counts of felony [fifth-degree] assault and my agreement that both sentences shall run consecutive, the prosecutor agrees to recommend a downward dispositional departure, agrees to a “bottom of the box” Minnesota Sentencing Guideline Sentence on the first of these convictions, and that I may be released from custody upon my completion of a Chemical Dependency Assessment . . . .
And, at the plea hearing, King’s counsel stated that, pursuant to the plea agreement, the
prosecutor was “agreeing to recommend, along with us, a downward dispositional
departure on that matter. She agrees further to a bottom-of-the-box Minnesota
Sentencing Guideline cell sentence on the first of the two convictions.” We understand
this to mean that the parties agreed to a bottom-of-the-box sentence and that the state
agreed to recommend a downward dispositional departure. King’s counsel also ensured
that King understood that if “the Judge doesn’t accept the agreement as offered here by
the parties, you have your right to withdraw the plea of guilty and have a trial.”
King argues that his guilty plea rested on an unfulfilled promise of a “bottom-of-
the-box” sentence for count one. And because the promise induced the plea, the plea was
not voluntary. The state does not dispute the assertion that the bottom-of-the-box
sentence was a promise and concedes that King is entitled to sentence modification.
During the plea hearing, the parties agreed that a 26-month sentence on count one
was appropriate according to the sentencing guidelines. The district court deferred
acceptance or rejection of the plea pending receipt of the presentence investigation (PSI).
Two PSI reports were filed. The first one recommended a 30-month stayed sentence if
6 the district court decided to depart from the presumptive guidelines sentence, but the
second report recommended a 26-month stayed sentence if the district court chose to
depart.
At the sentencing hearing, the district court committed King to the custody of the
commissioner of corrections for a period of 30 months for count one, stayed for three
years. King did not object to the 30-month sentence or move to withdraw his plea based
on the change in the length of the sentence. Nor did the district court give King an
opportunity to withdraw his guilty plea. King did object when the district court
sentenced him to 33 months for count two, instead of the agreed-upon sentence of one
year and one day. In response, the district court stated, “I’m just reading from the PSI, so
let me just go back and see what the plea agreement . . . scratch that sentence that I just
imposed, and we will start over again with Count 2.”
The language in the plea agreement indicates that the parties agreed to a bottom-
of-the-box sentence and to recommend a downward dispositional departure. In addition,
the record indicates that the district court intended to abide by the plea agreement but
misspoke when it imposed a 30-month sentence instead of the agreed-upon 26-month
sentence. We conclude that the 26-month bottom-of-the-box sentence was a promise,
and because King’s plea was induced by the unfulfilled promise, his plea was
involuntary.
In cases where appellants’ pleas have been found to be involuntary because of
unfulfilled promises, the Minnesota Supreme Court has remanded either to allow
appellants to withdraw their pleas or to allow the district court to modify the sentences to
7 comply with the agreed-upon sentences. See State v. Wukawitz, 662 N.W.2d 517, 527
(Minn. 2003) (holding that plea withdrawal should be the first option, but if the state
would be unduly prejudiced by withdrawal, the district court may modify the sentence);
State v. Jumping Eagle, 620 N.W.2d 42, 45 (Minn. 2000) (remanding for the district
court to either allow appellant to withdraw his plea or to modify his sentence to the
agreed-upon sentence); State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (holding that
appellant must be allowed to withdraw from the plea agreement if he so chooses, but if he
does not so choose, the sentence should be amended to not exceed the agreed-upon length
of the sentence). We therefore remand for plea withdrawal or sentence modification.
II.
King argues that the district court abused its discretion when it revoked his
probation and executed his sentence because it erred by finding that (1) the state proved
by clear and convincing evidence that King intentionally and inexcusably violated his
probation and (2) the need for confinement outweighs the policies favoring probation.
We address this argument because of the possibility that the district court may modify
appellant’s sentence on remand.
When a person on probation violates a condition of probation, the district court
may continue probation, impose intermediate sanctions, or revoke probation and execute
the stayed sentence. Minn. Stat. § 609.14, subd. 3(2) (2012). “The [district] court has
broad discretion in determining if there is sufficient evidence to revoke probation and
should be reversed only if there is a clear abuse of that discretion.” State v. Austin, 295
N.W.2d 246, 249-50 (Minn. 1980). But the decision to revoke probation “cannot be a
8 reflexive reaction to an accumulation of technical violations [and] requires a showing that
the offender’s behavior demonstrates that he or she cannot be counted on to avoid
antisocial activity.” Id. at 251 (quotation omitted). Before revoking probation, the
district court must follow the three-factor analysis adopted in Austin: (1) specify which
condition was violated, (2) find the violation to be intentional or inexcusable, and (3) find
that the “need for confinement outweighs the policies favoring probation.” Id. at 250. In
making the three Austin findings, the district court “must seek to convey [its] substantive
reasons for revocation and the evidence relied upon.” State v. Modtland, 695 N.W.2d
602, 608 (Minn. 2005).
A. Clear and Convincing Evidence of Violations
King argues that the district court abused its discretion by determining that he
intentionally and inexcusably violated the terms of his probation because the state did not
prove by clear and convincing evidence that King violated his terms by consuming
alcohol, failing to submit to random testing, and possessing a firearm. To support a
revocation of probation, the district court must find clear and convincing evidence that
King violated a condition of his probation. Minn. R. Crim. P. 27.04, subd. 2(1)(c)b.
“The clear and convincing evidence standard is met when the truth of the fact to be
proven is highly probable.” Roby v. State, 808 N.W.2d 20, 26 (Minn. 2011) (quotations
omitted).
The district court held a contested probation-violation hearing and heard testimony
from King, his probation officer, the chief of police for the city of Eveleth, a state
9 trooper, and King’s girlfriend regarding the alleged violations of his probation. The
witnesses gave conflicting testimony regarding whether the violations occurred.
With respect to the allegation that King violated his probation by possessing and
consuming alcohol on January 7, 2014, King’s probation officer testified that he
responded to a call that King was holding his girlfriend at gunpoint in a motel room. The
probation officer testified that King told him that he had been drinking. The probation
officer also testified that he observed empty beer containers in the motel room. King’s
girlfriend testified that the beer belonged to her, she did not see King consume any
alcohol, and he was only there for five or ten minutes before the police arrived. King
testified that he did not consume any alcohol on January 7. The district court found that
the probation officer’s testimony was more credible than King’s testimony and found that
King violated his probation by consuming alcohol on January 7, 2014.
Concerning the allegation that King violated his probation by refusing to submit to
random testing on January 7, 2014, King’s probation officer testified that he made two
attempts to obtain a preliminary breath test (PBT) sample from King but that King
obstructed the tube with his tongue. King testified that he did not block the tube with his
tongue and that he blew into the PBT device. The district court found that the
“credibility of the evidence would indicate that [King] was not participating properly”
with the PBT device and found that King violated his probation by refusing to submit to
the PBT.
Concerning the allegation that King violated his probation because he possessed a
firearm and failed to remain law-abiding, King’s probation officer testified that King was
10 charged with being a felon in possession of a firearm arising out of an arrest on February
7, 2014. The chief of police for the city of Eveleth testified that he responded to a call of
a fight in progress and a male with a gun on February 7, and while stopping a vehicle
related to the call, the chief performed a quick pat-down of King and did not discover a
firearm on his person. But he testified that an officer assisting with the call performed a
more thorough search of King that revealed “a loaded, cocked .22 revolver.” The chief
identified the piece of evidence marked as exhibit 1 as the “gun that was handed to me
that was removed from Mr. King’s person.” A state trooper who assisted with the call
testified that he held King while another officer searched him and he watched the
officer’s hand come out of King’s jacket pocket with a gun. The trooper identified
exhibit 1 as “the handgun that was recovered from Mr. King’s person.” King testified
that he did not have a weapon on him on February 7, stating that the officer “allegedly
removed a gun from my possession, which I didn’t have in my possession at the time.”
And King stated that he did not recognize the weapon marked as exhibit 1. The district
court found that “it’s clear from the evidence” that the state trooper’s testimony was more
credible than King’s testimony and found that King violated his probation by being in
possession of a firearm on February 7, 2014.
For each violation, the district court weighed the credibility of the testimony and
found that the state proved by clear and convincing evidence that King consumed
alcohol, refused to submit to random testing, and possessed a firearm. The district court
also found that the violations were intentional and inexcusable.
11 We conclude that the district court did not abuse its discretion in finding that there
was clear and convincing evidence that King intentionally and inexcusably violated the
conditions of his probation. “[O]nce an intentional or inexcusable violation has been
found, the [district] court must proceed to an evaluation of whether the need for
confinement outweighs the policies favoring probation. This process prevents courts
from reflexively revoking probation when it is established that a defendant has violated a
condition of probation.” Modtland, 695 N.W.2d at 608.
B. Need for Confinement Outweighs Policies Favoring Probation
King argues that the district court abused its discretion by finding that the need for
confinement outweighs the policies favoring probation. The third Austin factor requires
the district court to “balance the probationer’s interest in freedom and the state’s interest
in insuring his rehabilitation and the public safety, and base [its] decisions on sound
judgment and not just [its] will.” Id. at 606-07 (quotation omitted). A district court may
find that the third Austin factor is satisfied if any one of the following subfactors is
present:
(i) confinement is necessary to protect the public from further criminal activity by the offender; or (ii) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (iii) it would unduly depreciate the seriousness of the violation if probation were not revoked.
Austin, 295 N.W.2d at 251.
King argues that the district court abused its discretion by revoking his probation
because this was King’s first probation violation. But the state correctly notes that
12 King’s probation officer filed two violation reports—one on January 8, 2014, and the
second on February 11, 2014—alleging four violations of his probation.
King also argues that the district court improperly relied on its contact with King
in prior cases to determine that the need for confinement outweighs the policies favoring
probation. The district court must base its assessment of whether revocation is proper
under the third Austin factor on the original offense and the intervening conduct of the
defendant. Id. Here, the district court stated that it “has been more than lenient over the
years in giving [King] opportunities to remain on probation and make something of it.”
But the district court immediately explained, “[t]hat, of course, has nothing to do with the
decision . . . in this particular case.” The district court went on to state that “in this
circumstance, you were also given an opportunity . . . to show to this Court that you were
trying to make some changes and stay out of involvement in matters such as this, in
consuming alcohol, and, more seriously, possessing a firearm while on probation.” The
district court found that “the need for confinement outweighs any policies favoring
continuing you on probation in this file, and that it would unduly depreciate the
seriousness of the violation of probation if not revoked.”
The record demonstrates that King violated his probation in multiple ways in a
relatively short amount of time. Because of the particular seriousness of the violations of
failing to remain law-abiding and possessing a firearm, the record supports the district
court’s finding that it would unduly depreciate the seriousness of the violations if the
district court did not revoke probation. Therefore, the record supports the district court’s
finding that the need for confinement outweighs the policies favoring probation. Because
13 the district court made sufficient findings under Austin and the record supports those
findings, we conclude that the district court did not abuse its discretion in revoking
King’s probation and affirm the district court’s revocation of King’s probation.
Affirmed in part and remanded.