State v. Kling

• Decision Date: 22 December 2014
• Docket Number: A14-0163
• Citation: State v. Kling, A14-0163 (Minn. App. Dec 22, 2014)
• Court: Minnesota Court of Appeals
• Parties: State of Minnesota, Respondent, v. Jermale Jermar Kling, Appellant.

State of Minnesota, Respondent, v. Jermale Jermar Kling, Appellant.

A14-0163

STATE OF MINNESOTA IN COURT OF APPEALS

December 22, 2014

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3(2012).

Reversed and remanded

Hooten, Judge

Concurring in part, dissenting in part, Johnson, Judge

Rice County District Court

FileNo. 66-CR-13-1819

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Paul Beaumaster, Rice County Attorney, Terence Swihart, Assistant County Attorney, Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Johnson, Judge; and Klaphake, Judge.^*

UNPUBLISHED OPINION

HOOTEN, Judge

Appellant pleaded guilty to a charge of felony domestic assault and was sentenced to 27 months of incarceration.On appeal, appellant argues that he is entitled to modification of his sentence or withdrawal of his guilty plea because his plea was induced by a promise that his sentence would only be 23 months.We reverse and remand.

FACTS

In July 2013, respondentState of Minnesota charged appellantJermale Jermar Kling in Rice County with domestic assault by strangulation, felony domestic assault, obstructing legal process with force, and disorderly conduct.Defense counsel negotiated a plea agreement with the prosecutor to resolve this case and another matter pending in Rice County.A written "Amended Settlement Offer," dated September 19, 2013, provided:

The [s]tate offers the following settlement negotiation:

In exchange for [Kling's] plea of guilty to [felony domestic assault] in [f]ile 66-CR-13-1819, the [s]tate agrees to do the following:

(1) Dismiss the remaining counts in [f]ile 66-CR-13-1819[;]

(2) Dismiss [f]ile 66-CR-13-1975 in its entirety[;]

(3)Recommend a bottom-of-the-box disposition for sentencing.

(Emphasis added.)Item 20(a) of the rule 15 plea petition states, "I have been told by my attorney and understand . . . that my attorney and the prosecuting attorney agreed that if I entered a plea of guilty, the prosecutor will do the following:" after which the followinghand-written entry is made: "See 9-19-13 settlement offer letter," which refers to the amended settlement offer.SeeMinn. R. Crim. P. 15.

On the same day, at the beginning of a plea hearing, defense counsel explained the plea agreement to the district court:

DEFENSE COUNSEL: [W]e do have an agreement which involves the dismissal of file . . .[66-CR-13-1975,] and he'll plead on . . . [file 66-CR-13-1819] on . . . [c]ount 2, which is the [felony] domestic assault, and the other charges will be dismissed, and the agreement is that it would be at the low end of the box.

DISTRICT COURT: Is this a correct statement of the plea agreement[?]

PROSECUTOR: It is, your [h]onor . . . .[Defense counsel] and I spoke today, and the agreement now is that we would just have the Rice County files.It will be bottom of the box.

. . . .

DISTRICT COURT: Okay.Mr. Kling, you have heard what the lawyers have told me about this plea agreement.Is this your understanding of the plea agreement?

KLING: Yes.

(Emphasis added.)Kling indicated that he had not yet signed the plea petition, but stated that he would "review that and sign it."Kling then waived his trial rights and proffered his guilty plea for the felony domestic assault charge, and the district court established a factual basis.The district court accepted the plea and scheduled a sentencing hearing.At the end of the plea hearing, defense counsel indicated that he would attach the amended settlement offer to the now-signed plea petition:

DEFENSE COUNSEL: And the only other thing I have is the petition, your [h]onor[.][T]his agreement came up rather suddenly, and I've prepared it myself, and what I had intended to do is attach the amended settlement [offer], but it's not been attached yet . . . .

DISTRICT COURT: Well, you know, attach it.They'll take the staples out downstairs and scan it, but that way they know it's a document that belongs together.

(Emphasis added.)Kling then acknowledged that he had read and understood the plea petition.At no point during the plea hearing did the prosecutor clarify that the plea agreement contained a recommended sentence, rather than an agreed-upon sentence.

The sentencing hearing took place on November 1, 2013.During the hearing, the prosecutor stated that "the recommendation was for the low end of the guidelines range, and . . . I would ask the [c]ourt to follow that recommendation. . . .I would request that the [c]ourt honor the plea agreement and the sentencing guidelines and commit the defendant to the [c]ommissioner of [c]orrections for 23 months."(Emphasis added.)Defense counsel then stated, "[W]e're asking the [c]ourt to follow the plea agreement.Twenty-three months is what he should get . . . ."The district court then addressed Kling:

The question before the [c]ourt today is really how long you should go to the [c]ommissioner of [c]orrections.There's a joint recommendation for the low end of the box, which is 23 months

. . . .

This lengthy history [of domestic-related offenses against the same victim] does not give the [c]ourt a reason to incarcerate you at the lower range of the presumptive box.Therefore, I am going to . . . commit you to the [c]ommissioner of [c]orrections for a period of 27 months.

(Emphasis added.)At no point during the sentencing hearing did defense counsel clarify that the plea agreement contained an agreed-upon sentence, rather than a recommended sentence.

Kling subsequently appealed his judgment of conviction directly to this court, seeking to withdraw his guilty plea or to have his sentence modified to 23 months.He argues that "[t]he district court misinterpreted the plea agreement as 'a joint recommendation'" as to sentence, rather than an agreed-upon sentence, and therefore "sentenced [him] to a prison term that was inconsistent with what he agreed to."

DECISION

I.

The state argues that because Kling has not petitioned the district court for post-conviction relief, his appeal is premature and should be dismissed.In State v. Anyanwu, we observed that "a defendant who challenges a judgment of conviction against him based on an invalid guilty plea may seek a post-conviction hearing from the district court or may appeal directly to [the Minnesota Court of Appeals]."681 N.W.2d 411, 413 n.1(Minn. App.2004).We then clarified:

Post-conviction proceedings are the proper forum for presentation and evaluation of matters not of record supporting withdrawal of a guilty plea.But a direct appeal is appropriate when the record contains factual support for the defendant's claim and when no disputes of material fact must be resolved to evaluate the claim on the merits.

Id.(quotations and citations omitted)(emphasis added).

Here, there is a discrepancy in the record as to the sentencing term of the plea agreement.According to the state, Kling pleaded guilty in exchange for a joint recommendation of a bottom-of-the-box sentence.According to Kling, he pleaded guilty in exchange for an agreed-upon bottom-of-the-box sentence.To determine the sentencing term of Kling's plea agreement, we must examine the record on appeal."The record on appeal consists of the papers filed in the district court, the offered exhibits, and the transcript of the proceedings, if any."Minn. R. Crim. P. 28.02, subd. 8;seeMinn. R. Civ. App. P. 110.01("The documents filed in the [district] court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.");State v. Propotnik, 216 N.W.2d 637, 637-38(Minn.1974)(upholding defendant's guilty plea because, even though defendant was not orally informed during the plea hearing of his right to confront witnesses, "the record includes a copy of the petition to enter a plea of guilty which defendant had signed and which he admitted reading and understanding," and which informed defendant of this right);State v. Bishop, 545 N.W.2d 689, 691-92(Minn. App.1996)("[I]n determining whether the offenses in this case arose out of the same behavioral incident, . . . the [district] court properly viewed the entire record, including the [r]ule 15 plea petition and the transcript of the plea hearing, to determine whether [defendant's] two offenses were separate and distinct.").¹

Here, the record on appeal includes the signed plea petition, the transcript of the plea hearing, and the transcript of the sentencing hearing.Kling's signed plea petition is part of the record because, at the plea hearing, the petition was received into evidence as an exhibit when the district court indicated it would be scanned into the record.SeeState v. Kealy, 319 N.W.2d 25, 26(Minn.1982)("Defendant entered his plea pursuant to the petition, which the [district] court received . . . .")(emphasis added);see alsoPerkins v. State, 559 N.W.2d 678, 686(Minn.1997)("[T]he plea petition form contained in Appendix A to rule 15 . . . ostensibly applies to felony offenses.").

The record on appeal is materially inconsistent as to the plea agreement's sentencing term.The signed plea petition plainly states that the state agreed to "[r]ecommend" a bottom-of-the-box sentence.But, the plea-hearing transcript plainly indicates that the state and Kling agreed that "the agreement" was for a bottom-of-the-box sentence.Moreover, the sentencing transcript indicates that there was a "joint recommendation" for a bottom-of-the-box sentence.Here, whether Kling's plea agreement included a recommended sentence or an agreed-upon sentence was material to his plea and affected whether he would be able to withdraw his plea if the district court did not sentence him in accordance with the agreement.SeePerkins, 559 N.W.2d at 687(holding that a defendant may withdraw his guilty plea if the district court...