State v. Johnson

999 N.W.2d 103

STATE of Minnesota, Respondent,

v.Devin Lee AROLA JOHNSON, Appellant.

A23-0134

Court of Appeals of Minnesota.

Filed December 4, 2023

Syllabus by the Court

If a defendant argues on direct appeal that a guilty plea is invalid on the ground that it was induced by an unfulfilled promise in a plea agreement, and if the record does not clearly reveal the terms of the plea agreement, the defendant is not entitled to reversal of the conviction but retains the right to assert the claim in a post-conviction petition.

Hubbard County District Court, File Nos. 29-CR-21-393, 29-CR-21-453

Keith Ellison, Attorney General, St. Paul, Minnesota; and Jonathan Frieden, Hubbard County Attorney, Park Rapids, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Johnson, Judge; and Kirk, Judge.^*

OPINION

JOHNSON, Judge

Devin Lee Arola Johnson pleaded guilty to two counts of third-degree criminal sexual conduct pursuant to a plea agreement. The district court imposed consecutive stayed prison sentences of 36 months and 20 months. Arola Johnson argues that his guilty pleas are invalid on the ground that the plea agreement required concurrent stayed prison sentences, not consecutive stayed prison sentences with concurrent probationary jail terms. He also argues that, regardless of the plea agreement, the district court’s imposition of consecutive stayed prison sentences is not authorized by the sentencing guidelines.

We conclude that Arola Johnson’s guilty pleas are not invalid because the district court record does not clearly support his argument that the parties agreed to concurrent stayed prison sentences. But we conclude that the district court erred by imposing consecutive stayed prison sentences without stating reasons for a sentencing departure. Therefore, we affirm Arola Johnson’s convictions but reverse the imposition of consecutive stayed prison sentences and remand for imposition of concurrent stayed prison sentences.

FACTS

This appeal arises from two district court cases. In the first case (No. 29-CR-21-393), the state charged Arola Johnson in March 2021 with third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(b) (2020). The state alleged that, on several occasions when Arola Johnson was 18 years old, he engaged in sexual penetration of a 13-year-old girl. In the second case (No. 29-CR-21-453), the state charged Arola Johnson in April 2021 with third-degree criminal sexual conduct, in violation of Minn. Stat. § 609.344, subd. 1(b). The state alleged that, on one occasion when Arola Johnson was 18 years old, he engaged in sexual penetration of a 14-year-old girl.

In May 2022, the state and Arola Johnson entered into a plea agreement to resolve both cases. Arola Johnson signed plea petitions with identical provisions concerning the agreed-upon sentences. Each petition states the agreed-upon sentence in the first case as follows: "10 years of supervised probation. Guideline stay of execution with cap of 90 days jail." Each petition states the agreed-upon sentence in the second case as follows: "10 years of supervised probation, guideline stay of execution with cap of 90 days jail, concurrent." (Emphasis added.) In addition, each petition states that two additional charges in two other cases would be dismissed.

At the plea hearing, Arola Johnson’s attorney described the agreed-upon sentences as "guideline stay of execution with a cap of 90 days jail." The district court asked, "is it anticipated that it be concurrent or consecutive sentences?" The prosecutor answered by stating, "It would be concurrent, Your Honor, anticipated."

At the sentencing hearing in October 2022, the district court asked the prosecutor, "are these sentencings consecutively or concurrently?" The following colloquy occurred:

PROSECUTOR: They are concurrent sentences, Your Honor, based upon my review of the law on that issue.

COURT: Of the law or the agreement?

PROSECUTOR: The agreement.

COURT: They’re separate victims, so they would allow for consecutive sentencing.

PROSECUTOR: Correct, Your Honor, I apologize. I meant per the agreement, they are consecutive as to the prison sentence themselves.

COURT: I see what you mean. My note is that the jail term is concurrent of 90 days.

PROSECUTOR: As well, yes.

COURT: You used the term "consecutively" different than what I understood. So when I impose the sentence, are they imposed consecutive of each other?

PROSECUTOR: The agreement called for consecutive with concurrent local jail time.

COURT: Okay. Thank you. And that’s what I just want to make sure.

Arola Johnson’s attorney did not disagree with or object to the prosecutor’s answers to the district court’s questions. When the district court asked for Arola Johnson’s position with respect to sentencing, his attorney stated that "there was a 90-day cap on the agreement of the jail."

In the first case, the district court imposed a sentence of 36 months of imprisonment, stayed for ten years of probation, including 90 days in jail. In discussing sentencing in the second case, the prosecutor asked the district court to impose a sentence "consecutive to the prior offense." Again, Arola Johnson’s attorney did not oppose or object to the state’s request for a consecutive sentence. In the second case, the district court imposed a sentence of 20 months of imprisonment, "consecutive to that sentence that was imposed in" the first case, with the same terms of probation. The warrant of commitment in each case states that the district court did not depart from the presumptive sentences.

Arola Johnson filed a notice of appeal from his convictions and sentences. He makes two arguments.

ISSUES

I. Are Arola Johnson’s guilty pleas invalid on the ground that they were induced by an unfulfilled promise in a plea agreement that required the district court to impose concurrent stayed prison sentences?

II. Did the district court err by imposing consecutive stayed prison sentences without stating reasons for a departure from the presumptive sentences?

ANALYSIS

I.

Arola Johnson first argues that his guilty pleas are invalid on the grounds that the parties entered into a plea agreement that required the district court to impose concurrent stayed prison sentences and that the plea agreement was breached, and the promise of concurrent sentencing unfulfilled, when the district court imposed consecutive stayed prison sentences.

A.

[1–5] A guilty plea is valid if it is "accurate, voluntary and intelligent." State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (citing State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983)). As the supreme court has explained,

The main purpose of the accuracy requirement is to protect a defendant from pleading guilty to a more serious offense than he could be convicted of were he to insist on his right to trial …. The purpose of the voluntariness requirement is to insure that the defendant is not pleading guilty because of improper pressures. The purpose of the requirement that the plea be intelligent is to insure that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea.

Trott, 338 N.W.2d at 251. If a guilty plea does not satisfy any of these three requirements, the plea is invalid. State v. Theis, 742 N.W.2d 643, 650 (Minn. 2007). This court applies a de novo standard of review when determining the validity of a guilty plea. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010).

[6–8] Arola Johnson’s argument implicates the voluntariness requirement. "It is well settled that an unqualified promise which is part of a plea arrangement must be honored or else the guilty plea may be withdrawn." Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979). Accordingly, if a guilty plea " ‘rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’ " State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). If a promise in a plea agreement is not fulfilled, the defendant cannot be said to have voluntarily entered into the plea agreement. See State v. Wukawitz, 662 N.W.2d 517, 526 (Minn. 2003); State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000).

Arola Johnson’s argument is similar to the argument made by the appellant in State v. Kunshier, 410 N.W.2d 377 (Minn. App. 1987), rev. denied (Minn. Oct. 21, 1987). Kunshier pleaded guilty to two charges pursuant to a plea agreement that called for concurrent sentences. Id. at 378. But at sentencing, the state recommended consecutive sentences. Id. Kunshier moved to withdraw his plea. Id. at 379. The district court denied the motion and imposed consecutive sentences. Id. This court re- versed on the ground that the guilty plea "was based on a promise, which the trial court had no discretion to reject without tendering to appellant his right to withdraw that plea and stand trial." Id. at 379-80.

Although Arola Johnson’s legal argument is similar to Kunshier’s, the factual records of the two cases are dissimilar. In Kunshier, we were able to resolve the appeal based on "an examination of the record and the verbatim transcript of the prosecutor’s statement, the defense attorney’s statement, and appellant’s statement," all of which were consistent in reflecting an unambiguous and unqualified agreement to concurrent sentences. Id. at 379. In this case, however, the record is unclear, and the terms of the parties’ agreement are ambiguous. Specifically, it is unclear whether the parties agreed that Arola Johnson’s two 90-day probationary jail terms would be concurrent or whether they agreed that his two stayed prism terms would be concurrent. The district court...