State v. Mudgett: This is a mean spirited little case from the Court of Appeals. The court goes out of its way to punish a defendant who moves for a departure; that punishment is to strip him or her of the ability to move to withdraw the plea under the more lenient pre-sentencing “fair and just” standard.
Mudgett was at risk of being tagged as a career offender, with a maximum sentence of * years on two counts of *. His able attorneys, Pat McGee and * negotiated a plea deal for him that significantly reduced his risk exposure.
After the plea but before sentencing Mudgett moved for a departure from the Guidelines. At the start of the sentencing “proceeding” here’s what counsel said: “Today [Mudgett] indicated to me that if the court is not inclined to depart in this matter either dispositionally or durationally, he would seek to withdraw his plea. I just ask to be heard on that in the event the court is not inclined to depart.” Now, for those of us who actually do trial work in Ramsey County is there any ambiguity about this? Just how many hundreds of times have you heard just this, or said it yourself? Is it not a good idea, or at least an appropriate courtesy, to give the judge a head’s up to your plan?
The appellate court refuses to give these words their ordinary meaning – if the court denies the departure motion then, before imposition of sentence, I want to be heard on a motion to withdraw the plea. Instead, the appellate court says that the actual request was to replace the departure motion with a motion to withdraw the plea.
This is an absurd result in the face of what the rule on sentencing provides. A motion for a departure would seem to be what is meant by a motion for a “sentencing hearing” under Rule 27.03, S. 1(D). Either party is entitled to request a sentencing hearing. This rule goes on to state that “The motion for a sentencing hearing shall specifically set forth the reasons for the motion,…” The rule specifically refers to challenges to the pre-sentence investigation report and the sentencing worksheet. Since the report, at least in Ramsey County, always opines about the wisdom of a departure, that portion of the report becomes a basis for challenge. How else to frame that challenge than by a request for a departure?
Anyway, subsection 1(E) goes on to provide that, not surprisingly, the court is to hear “issues raised in the sentencing hearing motion…” At the end of the hearing, the court may either announce its findings of fact, conclusions and appropriate order “on the issues submitted by the parties” or it must do the same thing by written findings, conclusions and order afterwards. Then, and here’s the kicker, the rule tells the trial courts this:
(G) The court may impose sentence immediately following the conclusion of the sentencing hearing.
It may, but is not required to do so. In fact, the court could, on its own or on request of a party, schedule the actual imposition of sentence for an entierely different day. Even when the court imposes sentence “immediately following the conclusion of the sentencing hearing” the rule does slow things down just a bit. That’s because the rule says that the judge has to give a bunch of people - the prosecutor, the victim, defense counsel, and the defendant - “an opportunity to make a statement with respect to any matter relevant to the question of sentence including a recommendation as to sentence.” Subd. 3. Only thereafter is the court actually authorized to pronounce a sentence.
The Court is now saying that the trial judge may conflate or rearrange, if not bulldoze its way through these steps. The court may hear argument on the departure motion but not rule on it; the court then hears from the enumerated parties and then imposes sentence. If the sentence is not a departure then the court has de facto denied the departure motion. It is especially alarming that the appellate court has given trial courts the green light to combine argument on the departure motion – an up or down vote so to speak – with argument on what sentence actually to impose. Here’s how the appellate court saw it:
[A]fter the parties have been heard regarding what sentence the court should impose, there is no rule requiring the district court to divulge its sentencing contemplations or inclination before it imposes the sentence. This is not to say that the rules prohibit a district court from disclosing its inclination regarding sentencing alternatives before imposing the sentence to allow a defendant to consider his options, including perhaps whether to make a pre-sentencing motion to withdraw his guilty plea. But the rules do not require this disclosure.
The question whether to depart and the question what sentence to impose are not the same questions. Rule 27’s chronology delineates those questions, a delineation the appellate would permit to be ignored. Indeed, the appellate court insists that the two questions, if not a single question in application, must be considered in tandem:
If Mudgett had requested the district court to decide the sentencing motion first, … and then, assuming the court denied that motion by imposing the presumptive sentence, to entertain an alternative motion to withdraw his guilty plea, … the district court could treat the issues in their reasonable order: Once it imposed Mudgett’s sentence, the court could then hear argument on his post-sentencing motion to withdraw his guilty plea. [Underlining added; Italics in original.]
The reason for all this fudging and ignoring of the rules is simple enough; conflating the two questions thereby permits the trial court to deprive the defendant of the opportunity to move to withdraw the plea under the more lenient standard applicable when the motion is made before sentence is imposed.
Okay, so it seems prudent now always to state at the beginning of a departure motion that this is a motion for a sentencing hearing under Rule 27; and that you are requesting that this be heard and ruled upon separately from imposition of sentence. Indeed, it would seem most prudent specifically to request that the court schedule a “sentencing hearing” exclusively to argue and receive a ruling on the departure motion, and that the proceeding at which the court imposes sentence occur on an entirely separate day. The defendant can then mull over the decision whether to move to withdraw the plea or accept the Guidelines sentence.
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