Sentencing Contrary to Guidelines, to Which Defendant Agreed, Does Not Authorize Post Conviction Withdrawal of Plea.

Carey v. State, Minn.Ct.App., 5/19/2009.  Mr. Carey plead guilty to two counts of criminal sexual conduct.  The plea agreement called for the court first to sentence on the later occurring offense and then the earlier one.  This resulted in an executed sentence of 144 months and a consecutive, stayed sentence of 86 months.  Had the counts of conviction been sentenced in correct chronological order, the total executed sentence could have been 230 months had the trial court sentenced consecutively.  The trial court went over all of this at the sentencing hearing, all the while Mr. Carey saying that he wanted to be sentenced backwards.

Three years after all these machinations, Mr. Carey filed a post conviction petition, alleging that his sentence had been illegal because they were imposed backwards; he sought only to be allowed to withdraw his guilty pleas.  The district court denied the petition.

And the appellate court upholds that denial.  The appellate court focuses on the requirements of a valid guilty plea, not the apparent impermissibility of backwards sentencing.  See Guidelines, II.F.  The appellate court points to a 1997 amendment to the Guidelines enabling statute, 244.09, subd. 5, which says that sentencing under the Guidelines is not a personal right but a "procedure based on state public policy ..."  See also State v. Misquadace, 644 N.W. 2d 65 (Minn. 2002). 

With the Guidelines out of the way, the appellate court decides that the real question is whether Mr. Carey's pleas were voluntary, and concludes that they were.