State v. Martinez–mendoza, A09–2151.

• Decision Date: 13 October 2011
• Docket Number: No. A09–2151.,A09–2151.
• Citation: 804 N.W.2d 1
• Parties: STATE of Minnesota, Respondent,v.Victor MARTINEZ–MENDOZA, Appellant.
• Court: Minnesota Supreme Court

804 N.W.2d 1

STATE of Minnesota, Respondent,

v.Victor MARTINEZ–MENDOZA, Appellant.

No. A09–2151.

Supreme Court of Minnesota.

Aug. 31, 2011.Rehearing Denied Oct. 13, 2011.

Syllabus by the Court

1. Jeopardy attaches to a criminal defendant, at the latest, upon conviction.

2. Appellant was convicted when the district court accepted his plea and adjudicated him guilty on the record after he entered his plea to count two of the complaint.

3. Rule 28.04 of the Minnesota Rules of Criminal Procedure precludes an appeal of a pretrial order after jeopardy attaches.

4. Because double jeopardy bars retrial of appellant after his conviction, the State had no right to appeal from the district court's denial of its motion to withdraw from the plea agreement or, in the alternative, to amend the complaint.

5. The State's argument that it should be allowed to recharge appellant with count one of the complaint, even though appellant has been convicted of an offense based on the same conduct, is premature.

Lori Swanson, Attorney General, and John Choi, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for respondent.David W. Merchant, Chief Appellate Public Defender, Benjamin J. Butler, Assistant State Public Defender, St. Paul, MN, for appellant.

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. § 609.342, subds. 1(a) and 2(a) (2010), and one count of second-degree criminal sexual conduct [count two] in violation of Minn.Stat. § 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 “[c]ount 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,...