Court of Appeals Leaves Unanswered the Question Whether a Pretrial Waiver of Right to Appeal is Enforceable

State v. Cubas, Minn.Ct.App., 10/15/2013.  Back in 2004 Mr. Cubas pled guilty to third degree sale of a controlled substance.  The plea agreement called for a dispositional departure – no prison – and release pending sentencing.  Mr. Cubas also agreed not to challenge an anticipated custody point on his Guidelines worksheet.  Mr. Cubas did not appear for sentencing and the trial court issued a bench warrant.  It was not until this past April that the authorities arrested him on that bench warrant.

At his sentencing hearing, but before pronouncement of sentence, Mr. Cubas moved to withdraw his guilty plea.  Full Disclosure:  I represented him at this sentencing hearing (but not the appeal).  Mr. Cubas argued that the waiver ran afoul of due process under the rationale of Spann v. State, 704 N.W.2d 486 (Minn. 2005), and that such a waiver was invalid as a matter of public policy.  The remedy, he argued, was to allow Mr. Cubas to withdraw his guilty plea and then either stand trial or negotiate a valid, enforceable plea agreement.  The state agreed that the waiver under the 2004 plea agreement was invalid and unenforceable, but thought that allowing him to withdraw his plea after all these years would result in significant prejudice to the state.  That’s because the drug evidence had been destroyed, and because witnesses’ memories had likely faded in the intervening years.  Because no one argued otherwise, the trial court said that the waiver was unenforceable and that the remedy was to allow withdrawal of the plea.  The court granted the motion “in the interest of justice.”

The state appealed.  And reversed and remanded.   Now, a request to withdraw a guilty plea that is made before sentencing may be granted at the court’s discretion if it is “fair and just to do so.”  Rule 15.05, subd. 2.  The court of appeals couldn’t get over the trial court’s use of the phrase “in the interest of justice” because that language isn’t in the rule.  The rule requires consideration of both the reasons advanced to withdraw the plea and the potential prejudice to the state if the request is granted.  Kim v. State, 434 N.W.2d 263 (Minn. 1989).  Moreover, the court of appeals said – even absolutely no one argued this - that the  “rationale” of Spann does not mandate plea withdrawal “in this case,” although the policy considerations from Spann may be relevant to a Rule 15.02, subd. 2 determination.  (So, whether waivers of appeal rights before trial are enforceable remains an unanswered question.)  But, the trial court has to consider not only the reasons advanced by Mr. Cubas to be allowed to withdraw the plea but also consider potential prejudice to the prosecution.  Because the trial court didn’t do that, the court of appeals reverses and sends the case back to the trial court for that determination.