State v. Martinez-Mendoza

804 N.W.2d 1, 2011 Minn. LEXIS 544, 2011 WL 3820760

• Court: Supreme Court of Minnesota
• Decided: August 31, 2011
• Docket: No. A09-2151
• Status: Published

Opinions

OPINION.

PAGE, Justice.

On August 24, 2009, appellant Victor Martinez-Mendoza was charged by complaint with one count of first-degree criminal sexual conduct [count one] in violation of Minn.Stat. § 609.842, subds. 1(a) and 2(a) (2010), and one count of second-degree criminal sexual conduct [count two] in violation of MinmStat. § 609.343, subds. 1(a) and 2(a) (2010), for the sexual abuse of his girlfriend’s daughter, A.K.D. The State and Martinez-Mendoza subsequently reached a plea agreement calling for Martinez-Mendoza to plead guilty to count two of the complaint; receive the presumptive guidelines sentence for that offense, which all parties thought to be an executed term of 90 months in prison; and dismissal of count one of the complaint. At a hearing on September 30, 2009, Martinez-Mendoza pleaded guilty to count two of the complaint pursuant to the agreement. The district court accepted the plea, adjudicated Martinez-Mendoza guilty of count two, and set a sentencing hearing for a later date. Before the sentencing hearing took place, the State learned that the actual presumptive guidelines sentence for the offense set out in count two of the complaint was 36 months with execution stayed. As a result, the State moved to vacate the plea or, in the alternative, reinstate count one of the complaint. The district court denied the motion, citing double jeopardy concerns. On appeal, the court of appeals concluded that it had the authority to hear the State’s appeal and reversed based on the parties’ mutual mistake. For the reasons discussed below, we reverse the court of appeals.

I.

This case arises out of the following facts, which are taken from the complaint. According to A.K.D., Martinez-Mendoza, her mother’s live-in boyfriend and father to A.K.D.’s step-siblings, sexually touched A.K.D. on at least two occasions, starting when she was six years old with the most recent incident occurring when she was eight years old. A.K.D. reported that on at least one occasion, Martinez-Mendoza touched A.K.D. on her “private part” with his hand and with his “private part,” and that he also touched her mouth with his mouth and tongue. A.K.D. also reported that Martinez-Mendoza told A.K.D.’s siblings to go watch television elsewhere while Martinez-Mendoza and A.K.D. went into A.K.D.’s mother’s room. Once in the room, Martinez-Mendoza took off A.K.D.’s shorts and underwear, got on top of her, and touched his “private part” to her “private part.” A.K.D. indicated that, while on top of her, Martinez-Mendoza ejaculated, which A.K.D. wiped off with her clothes. During an interview with law enforcement, Martinez-Mendoza admitted to touching A.K.D. on two occasions. He claimed that on the first occasion, he first touched her vagina through her underwear, but then continued to touch her vaginal area. On the second occasion, Martinez-Mendoza admitted to putting A.K.D. on top of him while he had an erection, feeling A.K.D.’s vagina on his penis, and ejaculating. He admitted that he had been a victim of sexual abuse when he was a child and asked for help.

At a hearing on September 30, 2009, the State and Martinez-Mendoza reached a plea agreement calling for Martinez-Mendoza to plead guilty to count two of the complaint and the dismissal of count one at sentencing. The agreement also called for Martinez-Mendoza to receive the presumptive sentence under the Minnesota Sentencing Guidelines, which both the State and Martinez-Mendoza assumed to be an executed term of 90 months in prison. At the hearing, Martinez-Mendoza formally entered a plea of guilty to count two. The district court accepted the plea and adjudicated Martinez-Mendoza guilty of second-degree criminal sexual conduct as alleged in the complaint. The court also scheduled a sentencing hearing for November 10, 2009. Before the sentencing hearing, the State discovered that the presumptive sentence for count two as set forth in the complaint was a 36-month stayed prison sentence, not the assumed 90-month executed sentence.¹ As a result, the State moved to vacate the guilty plea or, in the alternative, to amend the complaint to reinstate count one. The district court then held a hearing on the motion on October 27, 2009.

At the October 27 hearing, the district court asked both lawyers if they had looked up the presumptive sentence before the plea hearing. The prosecutor admitted that he did not look up the presumptive sentence, but instead relied on information provided to him by a colleague in the county attorney’s office. The defense counsel indicated that he had looked up the presumptive sentence and made notes on his file indicating the penalties for both a severity level B and severity level D offense. Defense counsel specifically stated:

I was questioning at the time that the plea was taken is this a B or is this a D? But I did not have my books with me at that time, and I did not look it up to see if it was a B or a D; but I was aware that criminal sexual conduct in the second degree could be either a B or a D. So there was a question in my mind as to whether this was a 90-month commit or a 36-month stayed sentence; and I thought that we’re pleading as it is so whatever it is is what it’s going to be. I understood the state was adamant that they thought it was 90, and that’s why I wrote 90 on the plea agreement.

The court also indicated that it had not looked up the presumptive sentence.

The district court also inquired as to each party’s understanding of the terms of the plea agreement. The State stated that it understood the agreement to be a “plea to criminal sexual conduct in the second degree and that that would accomplish a 90-month commit to the Commissioner,” that both the State and defense counsel presented this understanding to the court, and that the State had never discussed a 36-month stayed sentence with defense counsel. Defense counsel stated that:

It was contemplated that this would be a 90-month commit to the Commissioner of Corrections.At the time the plea petition was put in it was assumed, at least by the state and, in part by me, that this would be a severity level B, which calls for a 90-month commit ... [even though] there was a mistake made and this is a 36-month stayed sentence.

Defense counsel further indicated that “[cjount two as charged is a stayed sentence. Clearly that was a mistake_” The district court indicated that it also understood the plea agreement to carry a 90-month executed sentence.

The State argued that, due to mutual mistake, the State should “be allowed to withdraw from the plea agreement and that this matter then be returned to square one, which is having Mr. [Martinez-]Mendoza charged with the two counts he was originally charged.” Defense counsel argued that the plea agreement called for 90 months or a guidelines sentence and, with no showing of grounds for departure, the proper sentence for the guilty plea was the presumptive 36-month stayed sentence for a level D offense.² Defense counsel further argued that there was no case law allowing the State to withdraw from the plea agreement, that his client did not wish to withdraw from the plea agreement, and that the court should sentence his client pursuant to the plea agreement, which “calls for dismissal of count one, plead guilty to count two.” Defense counsel also argued that “[c]ount two as charged is a stayed sentence. Clearly that was a mistake, but my client should be entitled to the benefit of that mistake.” The district court took the State’s motion under advisement and postponed the sentencing hearing.

On November 24, 2009, the court heard arguments regarding sentencing. The State again argued that the mutual mistake precluded a valid and enforceable plea agreement. In response, defense counsel argued that the plea agreement was valid, that the State should have to bear the consequences of its mistakes, and that the court should sentence Martinez-Mendoza pursuant to the presumptive sentence for the offense charged in count two of the complaint. Defense counsel also argued that, because his client had already pleaded guilty and the court had accepted the plea, double jeopardy precluded the State from recharging his client with a greater offense.

At the end of the parties’ arguments, the district court, on the record, found that a mistake had been made with respect to the presumptive sentence for the offense charged in count two of the complaint; that the parties had created a valid plea agreement that called for the dismissal of count one of the complaint and a “guidelines sentence for a plea of guilty to count two”; and that Martinez-Mendoza had, pursuant to that agreement, pleaded guilty to count two of the complaint. The court further noted for the record that it would not have accepted the plea had it known that the sentencing guidelines called for a 36-month stayed sentence. Before sentence was imposed, the State sought a stay of the sentencing to allow time for an appeal to the court of appeals. After consideration, the district court declined to issue a stay and proceeded to sentence Martinez-Mendoza pursuant to the terms of the agreement to the presumptive guidelines sentence of 36 months with execution stayed for the offense of conviction. Pursuant to the plea agreement, the court also dismissed count one of the complaint.

The State appealed. The court of appeals considered two issues on appeal: first, whether the court of appeals had jurisdiction to hear the appeal; and, second, if there was jurisdiction, whether the plea agreement was valid.³ Treating the district court’s denial of the State’s motion to vacate the plea or, in the alternative, to amend the complaint, as the denial of a pretrial order, the court concluded that it had jurisdiction. State v. Martinez-Mendoza, No. A09-2151, 2010 WL 1753361, at *5 (Minn.App. May 4, 2010). The court went on to hold that the plea agreement was void under contract law because there was a material mutual mistake regarding the sentence, and therefore reversed the district court. Id. at *6-7.

We granted Martinez-Mendoza’s petition for review, which asks us to answer two questions. First, we must determine whether the district court properly denied the State’s motion to withdraw from the plea agreement, have Martinez-Mendoza’s plea vacated, and amend count two of the complaint. Before answering that question, we must determine whether the State has the authority, statutory or otherwise, to appeal the district court’s order denying the State’s motion. Second, the State asks us to decide whether it may recharge Martinez-Mendoza with count one of the complaint following this appeal. We consider each of these issues in turn.

II.

Martinez-Mendoza argues that, because jeopardy attached at the time the district court accepted his plea and adjudicated him guilty, the State may not appeal the district court’s order denying the State’s motion to withdraw from the plea agreement, vacate the conviction, and amend the complaint. The State contends that, because the case had not gone to trial and because Martinez-Mendoza had not been sentenced at the time of the denial of its motion, its appeal was from a pretrial order and therefore double jeopardy concerns do not preclude the appeal.

For the State to appeal, there must “be a statute or court rule that permits the appeal, or the issue must ‘arise by necessary implication’ from an issue where the State’s right to appeal is expressly provided.” State v. Rourke, 773 N.W.2d 913, 923 (Minn.2009) (quoting In re C.W.S., 267 N.W.2d 496, 498 (Minn.1978)). Such statutes are strictly construed because appeals by the State in criminal proceedings are not favored. Id. As relevant to this case, Minn. R.Crim. P. 28.04, subd. 1(1), allows the prosecuting attorney to appeal “in any case, from any pretrial order, including probable cause dismissal orders based on questions of law.”⁴ However, Rule 28.04, subdivision 2(8), prohibits the State from appealing “a pretrial order ... after jeopardy has attached.” We review the interpretation of procedural rules de novo. Rourke, 773 N.W.2d at 923.

With respect to Rule 28.04, subdivision 2(8), we must determine whether the State’s appeal is precluded by jeopardy having attached before the State’s appeal. While we have not had occasion to address when jeopardy attaches in the context of a plea agreement, we have said that jeopardy attaches, at the latest, following a conviction. See Hankerson v. State, 723 N.W.2d 232, 236-37 (Minn.2006) (discussing that double jeopardy protections prohibit “a second prosecution for the same offense after conviction”); see also Ohio v. Johnson, 467 U.S. 493, 498, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). In Minnesota, a conviction “requires that a district court both accept and record the guilty plea.” State v. Thompson, 754 N.W.2d 352, 355 (Minn.2008); State v. Schmidt, 612 N.W.2d 871, 876-77 (Minn.2000). In Thompson, we declined to determine whether a guilty plea is “recorded by the court” when the court states its acceptance on the record or when the clerk enters the judgment of conviction. 754 N.W.2d at 356 n. 4. However, we noted that a defendant can be convicted prior to sentencing pursuant to Minn. R.Crim. P. 27.01 and that the definition of “conviction” in Minn.Stat. § 609.02, subd. 5 (2010), does not require the clerk to enter the judgment into the file. Id. Accordingly, we now conclude that a court “records” a guilty plea upon accepting the guilty plea and adjudicating the defendant guilty on the record.

Here, at the September 30, 2009, hearing at which Martinez-Mendoza and the State agreed to the terms of the plea agreement, Martinez-Mendoza formally pleaded guilty before the district court.⁵ Upon Martinez-Mendoza entering the plea, the district court unequivocally accepted Martinez-Mendoza’s guilty plea and adjudicated him guilty, stating on the record:

I will accept your guilty plea and adjudicate your guilt on this criminal sexual conduct in the second degree. I’m satisfied that you understand the offense and the plea agreement. Today you freely and voluntarily have waived or given up your rights and you have admitted the essential elements of criminal sexual conduct in the second degree.

At that point, because the district court accepted Martinez-Mendoza’s guilty plea and adjudicated him guilty, Martinez-Mendoza stood convicted and jeopardy attached.⁶ Because Rule 28.04 precludes appeal after jeopardy attaches, the State had no right to appeal under that rule.

Alternatively, the State contends it should be allowed to appeal the district court’s denial of the State’s motion to withdraw from the plea agreement. The State argues that the mutual mistake in the plea agreement as to the presumptive sentence makes the plea agreement voidable by either party, giving the State the right to withdraw.⁷ Accordingly, the State argues that the district court erred in denying the State’s motion to withdraw from the plea agreement.⁸ We conclude the State does not have the right to appeal. Granting the State’s motion to withdraw from the plea agreement over Martinez-Mendoza’s objection after Martinez-Mendoza’s conviction would allow Martinez-Mendoza to be twice placed in jeopardy in violation of the Double Jeopardy Clause of the United States Constitution. As noted earlier, jeopardy attached, at the latest, when the trial court accepted and recorded Martinez-Mendoza’s guilty plea, at which point he stood convicted. It is well established that the Double Jeopardy Clause protects against a second prosecution for the same offense after conviction. Ohio v. Johnson, 467 U.S. at 498, 104 S.Ct. 2536 (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)). Further, once jeopardy attaches, the State may no longer amend its complaint to charge “a different or additional offense.” State v. Smith, 313 N.W.2d 429, 430 (Minn.1981). Thus, any appeal by the State is barred as moot as a matter of law because courts cannot grant effectual relief. Enright v. Lehmann, 735 N.W.2d 326, 330 (Minn.2007). Moreover, we have held, in the context of an acquittal, that when a trial court’s action in dismissing a count of a criminal complaint amounts to a judgment of acquittal on the merits, the dismissal, no matter how erroneous, is not subject to appeal because the Double Jeopardy Clause bars retrial. State v. Large, 607 N.W.2d 774, 779-80 (Minn.2000). While our holding in Large was in the context of an acquittal, we conclude that it would be anomalous to treat a conviction on the merits differently than an acquittal on the merits.⁹ Thus, we conclude, as we did in Large, that the court of appeals lacked jurisdiction over the State’s appeal.¹⁰

III.

The State also argues that, because only the State has the right to dismiss charges, the district court had no authority to dismiss the first-degree criminal sexual conduct charge alleged in count one of the complaint against Martinez-Mendoza. Thus, the State seeks to be allowed to recharge Martinez-Mendoza with count one, even though he has been convicted of an offense based on the same conduct.

Because the State has not yet attempted to recharge Martinez-Mendoza, we conclude that addressing the issue would be premature. See State v. Her, 781 N.W.2d 869, 876 (Minn.2010) (quoting In re McCaskill, 608 N.W.2d 326, 327 (Minn.1999)) (noting that appellate courts “decide only actual controversies and avoid advisory opinions”). We therefore decline to issue an advisory opinion on whether the State may recharge Martinez-Mendoza on count one.¹¹

For the foregoing reasons, we reverse the court of appeals’ decision and reinstate the district court’s decision as to the conviction and sentence of Martinez-Mendoza.

Reversed.

1 . While all of the subdivisions of Minn.Stat. § 609.343 constitute criminal sexual conduct in the second degree, some of the subdivisions are categorized as more serious conduct and carry longer presumptive sentences. As relevant here, subdivision 1(a), the offense alleged in the complaint, criminalizes sexual conduct when “the complainant is under 13 years of age and the actor is more than 36 months older than the complainant.” Subdivision 1(a) is a severity level D offense and carries a presumptive 36-month stayed prison sentence. Minn. Sent. Guidelines IV. However, subdivision 1(h) criminalizes sexual conduct when the actor has “a significant relationship to the complainant, the complainant was under 16 years of age at the time of the sexual contact, and ... (iii) the sexual abuse involved multiple acts committed over an extended period of time.” Subdivision 1(h) is classified as a category B offense and carries a presumptive 90-month executed prison sentence. Minn. Sent. Guidelines IV. The facts to which Martinez-Mendoza pled guilty arguably support either offense. At the time Martinez-Mendoza agreed to plead guilty and entered the plea, the State was acting on the incorrect assumption that the second-degree offense alleged in the complaint was a category B offense.

2 . At two points during the hearing, defense counsel offered to compromise with the State and proposed that Martinez-Mendoza be sentenced to a 36-month executed, as opposed to stayed, sentence. The State evidently rejected this offer.

3 . Before the court of appeals' decision was issued, Martinez-Mendoza was deported to Mexico. This fact, however, does not moot the issue as Martinez-Mendoza could be subject to conviction for a more serious offense if he were to return to the United States. See United States v. Villamonte-Marquez, 462 U.S. 579, 581 n. 2, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983) (rejecting the contention that deportation renders a case moot when the reversal of the case would reinstate a conviction).

4 . The State must also “include a ‘summary statement ... as to how the trial court’s alleged error, unless reversed, will have a critical impact on the outcome of the trial.’ ” State v. Lessley, 779 N.W.2d 825, 831 (Minn.2010) (quoting Minn. R.Crim. P. 28.04, subd. 212). Absent a showing of critical impact there is no right to appeal. Here, the State argues and Martinez-Mendoza does not dispute, that the court's alleged error will have a critical impact on the outcome of the trial. Because we conclude the State’s appeal fails on other grounds, we need not address this argument.

5 . In his dissent, Justice G. Barcy Anderson argues that the prosecutor never consented to the plea agreement. However, the record conclusively shows the prosecutor’s consent in that he negotiated the terms of the agreement, proposed the agreement to the court, and consented to its terms on the record. Furthermore, the prosecutor facilitated Martinez-Mendoza's guilty plea by asking him the very questions on the record that established his guilt to count two. Clearly, at the time of Martinez-Mendoza's guilty plea, the prosecutor consented to both the plea agreement and the guilty plea to count two.

6 . In her dissent, the Chief Justice contends that we are "putting form over substance by concluding that jeopardy attached when the district court accepted and recorded Martinez-Mendoza's guilty plea.” Determining that a conviction occurred by applying clearly established law does not involve putting "form over substance.” Rather, our application of established law is the only means by which we can preserve the integrity of judicial proceedings and ensure that the safeguards of double jeopardy are preserved and enforced. To suggest otherwise is to suggest that constitutional safeguards are mere technicalities.

7 . The dissents both misstate the terms of the plea agreement when they suggest that Martinez-Mendoza pleaded guilty in exchange for an executed 90-month sentence. Rather, the record is clear that the plea agreement was for Martinez-Mendoza to plead guilty on count two, in exchange for which he would receive the presumptive guidelines sentence for count two. The fact that the parties were mistaken as to the length of the presumptive sentence is irrelevant to determining the terms of the agreement.

8 . The Chief Justice relies upon State v. Robledo-Kinney, 615 N.W.2d 25 (Minn.2000), for the proposition that "the [district] court has the discretion to withdraw its acceptance of the plea agreement” "[i]f the district court learns of something after initially accepting a plea agreement, but prior to sentencing, that causes the court to believe that the interests of justice are not served by the plea agreement.” This reliance is misplaced as the issues involved in Robledo-Kinney are factually different from those in this case. Unlike this case, Robledo-Kinney involved a defendant who sought specific performance of a plea agreement that he had reached with the State. 615 N.W.2d at 32. We described the circumstances giving rise to Robledo-Kinney's specific performance claim as follows:

[Negotiations began on May 28 and culminated on June 1 with a plea agreement contingent on Kinney not having stabbed or sexually assaulted Christenson. Kinney’s attorney assured the state’s attorney that Kinney had not stabbed Christenson. Shortly after the agreement was reached, Kinney informed his attorney that he had both sexually assaulted and stabbed Chris-tenson. That same day, without informing the state about what he had learned, Kinney’s attorney allowed Kinney to give the police a statement. As part of that statement, Kinney told the police he had sexually assaulted and stabbed Christenson. Based on that information, the state withdrew its offer of the plea agreement.

Id. at 28. Significantly, there had been no court involvement and jeopardy had not attached at the time the State withdrew its offer of the plea agreement. Nor did the defendant stand convicted at that time. Also significantly, Robledo-Kinney did not involve an appeal by the State after the defendant's conviction. Accordingly, the State’s appeal and the question of appellate jurisdiction were not at issue as they are in this case. Here, Martinez-Mendoza did nothing that would void his plea agreement before the court's acceptance and recording of his guilty plea. Consequently, Robledo-Kinney offers no guidance on the issues of this case.

9 . The Chief Justice disagrees with our statement that a conviction in this case deserves the same protection as that of an acquittal. However, the exceptions she cites in support of her view are not helpful because they are not factually relevant to this case. More importantly, the guarantee against double jeopardy “has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' ” United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) (emphasis added) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). These protections are independent of each other and each of them is sufficient to bar retrial. The Supreme Court has also made clear that “the bar to retrial following acquittal or conviction ensures that the State does not make repeated attempts to convict an individual.” Ohio v. Johnson, 467 U.S. at 498-99, 104 S.Ct. 2536 (emphasis added). Thus, the fact that an acquittal may be accorded more weight for policy reasons in factual situations unrelated to this case does not change the Double Jeopardy Clause’s prohibition of a second prosecution for the same offense after conviction.

10 . Additionally, we note that, as a basic premise, the posture of this case alone precluded the court of appeals from exercising jurisdiction over this appeal. Even if we could ignore, which we cannot, the fact that Martinez-Mendoza stood convicted when the district court accepted and recorded his guilty plea before the State perfected its appeal to the court of appeals, Martinez-Mendoza had been sentenced by the time the court of appeals heard the case. Accordingly, regardless of any other legal issues, the State is prohibited from challenging the merits of the conviction after Martinez-Mendoza was sentenced. See Sanabria v. United States, 437 U.S. 54, 64, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (concluding that a final determination based on the merits of a charge precludes retrial on the same offense, even if the legal rulings underlying the final determination were erroneous); see also U.S. Const, amend. V; Minn. Const, art. I, § 7; Minn. R.Crim. P. 28.04, subd. 2(8) (“No appeal of a pretrial order by the prosecutor can be taken after jeopardy has attached.”).

11 . While we decline to issue an advisory opinion on whether the State may recharge Martinez-Mendoza with count one of the complaint, we note that if the State chooses to recharge him, issues concerning the statutory bars found in Minn.Stat. §§ 609.035 and 609.04 (2010), as well as double jeopardy, may arise.