STATE v. KUKOWSKI, C3-99-586 (Minn.App. 12-21-1999)

No. C3-99-586.Minnesota Court of Appeals.
Filed December 21, 1999.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).

Appeal from St. Louis County District Court, No. 97-300591.

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, and

Alan L. Mitchell, St. Louis County Attorney, Brian D. Simonson, Assistant County Attorney, (for respondent)

Craig S. Hunter, (for appellant)

Considered and decided by Kalitowski Presiding Judge, Amundson, Judge, and Harten, Judge.

UNPUBLISHED OPINION
AMUNDSON, Judge

Appellant challenges the district court’s denial of her motion to withdraw her guilty plea prior to sentencing, arguing that neither the plea agreement nor the plea hearing referenced the maximum sentence for the offense, nor was she informed that she may receive a jail term. We reverse and remand.

FACTS
Appellant Shelia Renee Kukowski was employed by Ken’s Westside from 1993 until April 1997. One of her responsibilities was to manage the books of the business. In April 1997, the owner suspected that Kukowski was embezzling funds and referred the matter to the police department. Kukowski pleaded guilty to theft by swindle. While Kukowski admitted embezzling funds, she disputed that the amount exceeded $2,500. The district court decided that the amount of the embezzlement would be determined at a hearing subsequent to her plea entry. After Kukowski entered her guilty plea, but before sentencing, the court held a hearing to determine the amount embezzled. The district court found that the state proved beyond a reasonable doubt that Kukowski stole sums totaling $48,197.09. Prior to sentencing, Kukowski made a motion to withdraw her guilty plea, the district court denied her motion and she appealed.

DECISION
The decision to allow a defendant to withdraw a guilty plea before sentencing “is left to the sound discretion of the trial court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion.” Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989) (citation omitted). A valid guilty plea “must be accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).” Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997) (citation omitted). “Once a guilty plea has been entered, there is no absolute right to withdraw it.” Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994).

The primary purpose of the accuracy requirement is to protect the defendant from pleading guilty to a more serious offense than she could properly be convicted of at trial. State v. Trott, 338 N.W.2d 248, 251
(Minn. 1983). A secondary rationale for the accuracy requirement is that it assists the court to determine whether the plea is being entered intelligently. Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989).

The voluntariness requirement helps insure that a defendant does not plead guilty because of any improper pressures or inducements. Trott,338 N.W.2d at 251. Finally, the requirement that a plea be intelligent is designed to insure that the defendant understands the charges, the rights being waived, and the consequences of her guilty plea. Id. at 251.

Kukowski offered only her own testimony to corroborate her contention that she did not understand the consequences of her guilty plea, and the district court made no findings regarding her statements. But a review of the district court transcript and of the rule 15 petition reveals that Kukowski was not informed on the record of the consequences of her plea. The first sentence in paragraph 19 of the rule 15 petition referring to imprisonment and sentence has a line drawn through it, and the second line was left blank. Thus, there is nothing in the rule 15 petition to indicate that Kukowski could be imprisoned as part of the court’s sentence.

Kukowski admitted on the record that she understood the charges and pleaded guilty to embezzling amounts in excess of $2,500 or in excess of $35,000. The district court failed to explain the potential sentences that could be imposed for either offense.[1] While the district court has discretion to deny a motion to withdraw a guilty plea, it must have first made defendant aware of the consequences of entering a plea of guilty.

Nothing in the record demonstrates that the district court informed Kukowski of the consequences of her plea, so she would fully understand the maximum sentence that could be imposed. The omissions in the rule 15 petition also support Kukowski’s argument that she was not aware that her sentence could include imprisonment. Accordingly, she should be allowed to withdraw her guilty plea. See State v. Casarez, 295 Minn. 534, 536 203 N.W.2d 406, 408 (1973) (vacating plea agreement where consequences were not discussed on the record).

Additionally, we note that by leaving the level of the offense to be subsequently determined by the court, Kukowski pleaded guilty under a contingency agreement, which we will not uphold. A defendant cannot plead guilty to an either-or scenario; a guilty plea must be entered into accurately, intelligently, and knowingly. The district court must assure that a defendant is informed of the consequences of her choice. Because the record here lacks such an explanation and because the plea is based on a contingency agreement, we reverse and remand to the district court.

Reversed and remanded.

KALITOWSKI, Judge (concurring specially)

I concur in the majority’s conclusion that Kukowski was entitled to withdraw her guilty plea before sentencing because by entering a guilty plea prior to a determination as to what crime she committed, her plea was not “knowingly and understandingly made.”