State v. Ferraro

403 N.W.2d 845, 1987 Minn. App. LEXIS 4238
CourtCourt of Appeals of Minnesota
DecidedApril 14, 1987
DocketCX-86-1461
StatusPublished
Cited by5 cases

This text of 403 N.W.2d 845 (State v. Ferraro) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ferraro, 403 N.W.2d 845, 1987 Minn. App. LEXIS 4238 (Mich. Ct. App. 1987).

Opinions

OPINION

POPOVICH, Chief Judge.

Appellant pleaded guilty to assault in the third degree pursuant to a plea agreement. After acceptance of the plea, but before sentencing, appellant moved to withdraw the plea or for a downward departure from the presumptive sentence. The requests were denied. Appellant claims (1) the trial court erred in not permitting him to withdraw his plea and his conviction should be vacated, (2) he was denied effective assistance of counsel, and (3) he is entitled to a modified sentence pursuant to amendment to the Minnesota Sentencing Guidelines. We affirm.

FACTS

In September 1985, appellant was charged with assault in the second and third degrees in violation of Minn.Stat. §§ 609.11, 609.222, and 609.223 (1984 & Supp.1985). Prior to trial, a plea agreement was reached wherein appellant agreed to plead guilty to the charge of assault in the third degree and the State agreed to (1) dismiss the charge of assault in the second degree, (2) delete the reference to Minn.Stat. § 609.11, the mandatory minimum sentence provision, in the charge of assault in the third degree, (3) not charge appellant with additional counts of assault in the second degree and aggravated criminal damage to property, as intended, (4) remain silent at sentencing, except concerning restitution, and (5) leave all terms and conditions of any probation which may be imposed to the discretion of the court.

Appellant executed a petition to enter a plea of guilty, which indicated he was informed the maximum penalty the court could impose was imprisonment for 0-3 years and, except for the plea agreement, no one, including any judge, made any promises to obtain the guilty plea. Appellant was also questioned extensively concerning the implications of his plea and the waiver of his rights pursuant to Minn.R. Crim.P. 15.01. Appellant acknowledged he understood (1) he was pleading guilty to a felony, which was punishable by up to three years in prison and/or a $3000 fine, (2) the judge would decide the appropriate sentence after a presentence investigation was completed, and (3) there were no promises concerning the sentence.

Upon further examination, appellant’s counsel indicated he had an opportunity to review a print-out of appellant’s prior convictions and according to his “estimation” appellant had a criminal history score of 3, which would call for a presumptive sentence of 21 months probation.

The court accepted appellant’s plea. The prosecuting attorney immediately clarified there was no promise of what appellant’s criminal history score was because it was yet to be determined. Appellant’s counsel also stated he informed appellant that the Department of Corrections would calculate appellant’s criminal history score and that neither he nor the prosecutor could speak for the Department of Corrections. Appellant acknowledged he understood.

Appellant’s counsel explained to appellant that if his criminal history score was determined to be greater than 3, the presumptive sentence was an executed sentence of imprisonment and counsel would then ask the court’s permission for appellant to withdraw his plea. The prosecuting attorney informed appellant there had been no agreement to withdraw the guilty plea if his criminal history score was greater than 3 and that the State would oppose any [847]*847request to withdraw the plea. The court also indicated it was impossible to presently determine the criminal history score because of the uncertainty concerning the age of some of the offenses.

At the conclusion of the hearing, appellant did not request permission to withdraw his plea and the trial court indicated it would let appellant’s plea of guilty stand. Appellant responded affirmatively. The court then directed preparation of a presen-tence investigation report and scheduled a sentencing hearing.

A sentencing hearing was held on May 20,1986. The presentence investigation report revealed appellant’s criminal history score was 4. Appellant’s counsel requested appellant be allowed to withdraw his plea or the court depart from the presumptive sentence and place him on probation. The court denied the request to withdraw the plea indicating it would not accept a plea with the understanding it might be withdrawn. The court then scheduled a departure hearing.

The departure hearing was held on June 3, 1986, when appellant moved for a downward departure. The prosecuting attorney opposed appellant’s request and moved for an upward departure or alternatively to withdraw the plea. The trial court denied all motions and imposed a presumptive executed sentence of 25 months incarceration.

ISSUES

1. Did the trial court abuse its discretion in not allowing appellant to withdraw his plea?

2. Was appellant denied effective assist anee of counsel?

3. Is appellant entitled to modification of his sentence pursuant to an amendment in the Minnesota Sentencing Guidelines which became effective after the imposition of appellant’s sentence?

ANALYSIS

1. Appellant claims he should have been permitted to withdraw his plea and his conviction should be vacated because (a) the trial court failed to follow the proper procedures, (b) appellant believed he would receive a probationary sentence and that he had a right to withdraw his plea if the presumptive sentence was to require incarceration, (c) the plea was not voluntary, intelligent or accurate, and (d) the State violated the plea agreement. Absent an abuse of discretion, we will not overturn a trial court’s denial of a defendant’s motion prior to sentencing to withdraw a guilty plea. See State v. Williams, 373 N.W.2d 851 (Minn.Ct.App.1985); Minn.R.Crim.P. 15.05, subd. 2.

a. Trial court procedure.

Appellant’s claim that the trial court did not follow the proper procedures in accepting appellant’s plea because it did not postpone acceptance or rejection of the plea until it received the results of a pre-sentence investigation is without merit. Although the court may postpone accepting or rejecting a plea, or order a pre-plea sentencing guidelines worksheet be prepared prior to entry of a plea, the trial court is not required to follow this procedure when the parties have not requested it and the plea agreement does not require the imposition of a specific sentence. Appellant’s claim that the trial court failed to reject or accept the terms of the plea agreement is also without merit.

b. Appellant’s belief concerning a probationary sentence and the right to withdraw the plea.

Appellant claims he should have been permitted to withdraw his plea or his conviction should now be vacated because he believed he would receive a probationary sentence and had a right to withdraw the plea if his criminal history score resulted in a presumptive sentence requiring incarceration.

A probationary sentence and a right to withdraw the plea were not promised to appellant, nor part of the plea agreement, and appellant’s alleged belief to the contrary does not require vacation of his conviction or reversal of the trial court’s refusal to grant appellant’s request to withdraw the plea. State v. Trott, 338 N.W.2d 248, [848]*848252 (Minn.1983); Kockevar v. State,

Related

In Re Sl
663 N.W.2d 31 (Court of Appeals of Minnesota, 2003)
State v. Kunshier
410 N.W.2d 377 (Court of Appeals of Minnesota, 1987)
State v. Hegg
409 N.W.2d 287 (Court of Appeals of Minnesota, 1987)
State v. Ferraro
403 N.W.2d 845 (Court of Appeals of Minnesota, 1987)

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Bluebook (online)
403 N.W.2d 845, 1987 Minn. App. LEXIS 4238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ferraro-minnctapp-1987.