                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A16-0426

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                Melissa Rae Guillette,
                                     Appellant.

                              Filed December 27, 2016
                                     Affirmed
                                    Kirk, Judge

                              Rice County District Court
                               File No. 66-CR-15-2435

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John L. Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Faribault, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and

Kirk, Judge.

                       UNPUBLISHED OPINION

KIRK, Judge

      After entering a guilty plea contingent on a non-prosecution agreement that did not

materialize, appellant declined an opportunity to withdraw her plea and proceeded to
sentencing.    Appellant challenges the district court’s refusal to enforce specific

performance of the original plea agreement and the district court’s failure to appoint

substitute counsel. We affirm.

                                          FACTS

       On September 25, 2015, appellant Melissa Rae Guillette was charged in Rice

County with third-degree murder (controlled substance) and introducing contraband into a

state prison. Appellant was appointed a public defender and pleaded guilty to third-degree

murder on October 14 under the following terms: (1) the introducing-contraband charge

would be dismissed; (2) the state would recommend a bottom-of-the-box sentence, which

was anticipated to be 128 months; and (3) the state would not prosecute related offenses

committed in Douglas County. Defense counsel reiterated that the state would recommend

the bottom of the box, or 128 months, “based on our understanding that this is a severity

level 10 offense with no prior criminal history score.” The state also noted that the bottom-

of-the-box sentence may be longer than 128 months if appellant’s criminal-history score

was incorrect. The parties agreed that discovery of criminal-history points would increase

the state’s recommended sentence, and that such an increase would not be grounds for

appellant to withdraw her guilty plea.

       The district court stated that it did not believe it could bind the Douglas County

Attorney’s Office to a non-prosecution agreement. The state agreed, but explained that the

Douglas County Attorney agreed not to charge appellant for related offenses if she pleaded

guilty in this case because the contemplated disposition in this case would likely run

concurrent with any related Douglas County sentence. The parties agreed, and the district


                                             2
court made clear, that appellant’s guilty plea would be conditioned upon receiving written

confirmation of the non-prosecution agreement from Douglas County. The district court

noted that appellant would be allowed to withdraw her guilty plea if a written assurance

was not provided.

       Appellant did not have any questions regarding the terms of the plea agreement and

confirmed that she wished to enter a guilty plea. Appellant waived her trial rights, pleaded

guilty, and provided a factual basis. The district court found the factual basis to be

sufficient, deferred acceptance of the plea until sentencing, and ordered a presentence

investigation (PSI) and sentencing worksheet.

       On November 2, the Douglas County Attorney’s written confirmation of the non-

prosecution agreement was filed. A PSI and sentencing worksheet were completed

assuming that third-degree murder was a severity level 10 offense, which meant that, as

per the Minnesota Sentencing Guidelines, the offense carried a presumptive bottom-of-the-

box sentence of 128 months.

       On November 4, appellant wrote a letter to the district court requesting substitute

counsel and claiming that there were “major errors” in her case. Appellant requested a

second autopsy of the victim and claimed that Douglas County failed to timely confirm the

non-prosecution agreement. Appellant also complained that she had not received any

correspondence from her attorney. The district court directed the public defender to

respond to appellant’s request for new counsel, which the district court interpreted as a

request to withdraw her guilty plea based upon mistake of fact.




                                             3
        On November 10, appellant wrote a second letter to the district court requesting an

opportunity to be heard on bail so she could “get proper representation.” The district court

set a hearing on appellant’s request for bail and substitution of counsel. At the November

18 hearing, the public defender stated that appellant had spoken to a private attorney and

that there was likely time before appellant’s upcoming sentencing hearing for her new

attorney to file a motion to withdraw her guilty plea. Appellant claimed that a private

attorney had taken her case and was supposed to be present.

        The district court and the attorneys agreed that time was needed for appellant’s new

attorney to either file a substitution of counsel or a certificate of representation. The district

court ordered that if private counsel did not appear to replace the public defender, the public

defender would be expected to argue appellant’s motion to withdraw her guilty plea. The

district court wanted the motion in writing and served on the state. Appellant argued that

she should be allowed to withdraw her plea because Douglas County did not file written

confirmation by October 21, as required by her plea agreement. The district court reminded

appellant that the plea agreement did not impose a deadline on Douglas County. The

district court set appellant’s motion to be heard at her sentencing hearing.

        On November 23, appellant wrote a third letter to the district court requesting an

earlier sentencing date and apologizing for dismissing her public defender and pulling out

of the plea agreement. Appellant explained that she was nervous about the length of her

anticipated prison sentence. In response, the district court stated that the public defender

could schedule an earlier sentencing date if appellant did not wish to rescind her guilty

plea.


                                                4
       On December 8, an amended sentencing worksheet was filed indicating that the

appropriate severity level for third-degree murder in this case was 9, which decreased the

presumptive guideline sentence to 86 months with an adjusted bottom-of-the-box sentence

of 74 months. On December 17, the day before sentencing, Douglas County rescinded the

non-prosecution agreement.     The Douglas County Attorney explained that the non-

prosecution agreement was entered upon the understanding that appellant would plead

guilty to a severity level 10 offense and receive a 128-month, bottom-of-the-box, sentence.

He further explained that he entered into the agreement because prosecution of appellant

for the related Douglas County crimes would not have resulted in additional prison time

because her sentence would have been absorbed by the Rice County sentence. Because

this information was inaccurate, and appellant pleaded guilty to a severity level 9 offense,

the bottom-of-the-box sentence was a substantially different disposition, which he believed

rendered the agreement unreasonable. The Douglas County Attorney acknowledged that

although it would allow appellant to withdraw her guilty plea, he intended to file charges

against her.

       At the December 18 sentencing hearing, the state explained that the parties all

believed that appellant had pleaded guilty to a severity level 10 offense, but that upon

review, the Sentencing Guidelines Commission discovered that it was actually a severity

level 9 offense, which significantly reduced the presumptive sentence. The state concluded

that appellant had grounds to withdraw her plea because Douglas County rescinded the

non-prosecution agreement, but that if she elected not to do so, sentencing would occur

with the understanding that she would likely be charged in Douglas County.


                                             5
       Appellant’s public defender argued that because the written confirmation filed by

Douglas County did not specify a motivation for entering into the non-prosecution

agreement, it was not proper for Douglas County to withdraw. Appellant’s public defender

asserted that, just as appellant remained bound by the plea agreement, so did Douglas

County. The district court noted that appellant was not bound because she had the right to

withdraw her guilty plea if Douglas County intended to prosecute her. The district court

further noted that it had no authority to bind the Douglas County Attorney because he was

not a party to this case. The district court then asked appellant if she wished to withdraw

her plea.

       After confirming that she had enough time to discuss the situation with her public

defender, appellant stated that she was not backing out of the plea agreement, but that the

state had backed out of the agreement. The state noted that the parties were all under the

impression that appellant pleaded guilty to a severity level 10 offense in exchange for the

plea agreement. The state explained that it could not force Douglas County to comply now

that the parties knew the correct severity level of the offense, and that if appellant wanted

a global settlement including Douglas County, she would have to withdraw her plea and

renegotiate. Appellant did not express any discontent with her public defender.

       Appellant declined to withdraw her guilty plea. The district court confirmed that

appellant understood her right to withdraw her plea because the non-prosecution agreement

was a contingency that was not met. Appellant verified that she had enough time to discuss

the issue with her attorney. The district court accepted appellant’s plea, entered a judgment

of conviction, and dismissed the introducing-contraband charge.          The district court


                                             6
imposed the presumptive guideline sentence of 86 months rather than the 74-month

bottom-of-the-box disposition recommended by the state.

       This appeal follows.

                                     DECISION

I.     The district court did not err when it declined to order specific performance of
       the plea agreement but gave appellant the right to withdraw her guilty plea.

       Determining what the parties agreed to in a plea bargain is a factual inquiry, but the

interpretation and enforcement of plea agreements present issues of law subject to de novo

review. State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004); State v. Jumping Eagle, 620

N.W.2d 42, 43 (Minn. 2000). “In determining whether a plea agreement was violated,

courts look to what the parties to the plea bargain reasonably understood to be the terms of

the agreement.” State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (quotation omitted).

Here, there is no factual dispute as to the terms of the original plea agreement.

       “[T]he state may withdraw from a plea agreement at any time before a defendant

enters a guilty plea and the trial court accepts the plea, unless the defendant has

detrimentally relied upon the agreement.” State v. Johnson, 617 N.W.2d 440, 443 (Minn.

App. 2000). “A defendant does not have an absolute right to withdraw a valid guilty plea.”

State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). But a district court must permit

withdrawal of a guilty plea when it is necessary to correct “manifest injustice.” Minn. R.

Crim. P. 15.05, subd. 1. Manifest injustice exists when a guilty plea is not accurate,

voluntary, and intelligent. Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).




                                              7
       “The voluntariness requirement insures that a guilty plea is not entered because of

any improper pressures or inducements.” Brown, 606 N.W.2d at 674 (quotation omitted).

“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor,

so that it can be said to be part of the inducement or consideration, such promise must be

fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971).

“Allowing the government to breach a promise that induced a guilty plea violates due

process.” Brown, 606 N.W.2d at 674 (quotation omitted). “On demonstration that a plea

agreement has been breached, the court may allow withdrawal of the plea, order specific

performance, or alter the sentence if appropriate.” Id.

       “In Minnesota[,] plea agreements have been analogized to contracts and principles

of contract law are applied to determine their terms.” In re Ashman, 608 N.W.2d 853, 858

(Minn. 2000). A mutual mistake of fact may allow the parties to avoid a contract, “if the

party seeking to avoid the contract did not assume the risk of the mistake.” Winter v.

Skoglund, 404 N.W.2d 786, 793 (Minn. 1987). When the parties assent to a contract based

on an assumption, under the belief that there is no risk of error in that assumption, the

parties have not assumed any risk and the contract is voidable. Id. The court must

determine whether there was a mistake of fact at the time the contract was made. See City

of Savage v. Formanek, 459 N.W.2d 173, 175 (Minn. App. 1990), review denied (Minn.

Oct. 25, 1990). A mistake in the anticipated length of a sentence is a mistake of fact which

would allow a guilty plea to be withdrawn. State v. Benson, 330 N.W.2d 879, 880 (Minn.

1983); see also Jumping Eagle, 620 N.W.2d at 44-45.




                                             8
       Appellant argues that the state breached the plea agreement when Douglas County

rescinded the non-prosecution agreement, and that she is entitled to specific performance

of the agreement. Appellant asks this court to remand to the district court for specific

performance of the non-prosecution agreement.

       The state argues that both the plea agreement and the plea itself became invalid

when the mutual mistake of fact was discovered, because it significantly decreased the

anticipated bottom-of-the-box sentence from 128 months to 74 months. Additionally,

because the bargained-for sentence was not authorized for the offense appellant pleaded

guilty to, the agreement is unenforceable, and the appropriate remedy was the opportunity

for appellant to withdraw her guilty plea. We agree with the state.

       The district court did not err when it denied appellant’s request for specific

performance of the non-prosecution agreement. Both parties’ mutual mistake regarding

the severity level of the offense that appellant pleaded guilty to, and the length of the related

sentence, was a mistake of fact at the time the plea was entered. See Jumping Eagle, 620

N.W.2d at 44-45; Formanek, 459 N.W.2d at 175. This mistake allowed the state to avoid

enforcement of the plea agreement. All parties to the agreement reasonably understood

that, in exchange for the terms of the agreement, appellant would plead guilty to a severity

level 10 offense, not a severity level 9 offense.

       Despite this mutual mistake of fact, appellant asks that the non-prosecution

agreement be enforced against Douglas County because she detrimentally relied on the

plea agreement. See Johnson, 617 N.W.2d at 443. Appellant has failed to establish

detrimental reliance. Appellant was aware of the conditional nature of her plea, and the


                                               9
parties’ mutual mistake of fact resulted in a significantly less severe disposition. In fact,

the initial agreement as to her minimum sentence could not be enforced against her absent

grounds for an upward departure, which were not present and are not argued here. See

Minn. Stat. § 609.095(a) (2014).

       Because neither party assumed the risk that the presumptive bottom-of-the-box

sentence would be shorter than 128 months, and because the district court had not yet

accepted appellant’s guilty plea when the mutual mistake of fact was discovered, the state

had the ability to withdraw from the plea agreement.         Winter, 404 N.W.2d at 793.

Furthermore, withdrawal of appellant’s guilty plea was always the contemplated remedy if

Douglas County did not agree to refrain from filing charges. Therefore, the district court

did not err when it gave appellant the right to withdraw her plea rather than ordering

specific performance of the non-prosecution agreement.1

II.    The district court implicitly denied appellant’s request for substitute counsel
       and afforded her the right to withdraw her guilty plea.

       “The decision to grant or deny a request for substitute counsel lies within the

[district] court’s discretion.” State v. Clark, 722 N.W.2d 460, 464 (Minn. 2006) (citing

State v. Worthy, 583 N.W.2d 270, 278 (Minn. 1998)). We review the district court’s

decision for an abuse of discretion. State v. Munt, 831 N.W.2d 569, 586 (Minn. 2013).


1
  The state argues that the district court lacked the authority to bind Douglas County.
Because Rice County had the right to withdraw from the plea agreement based on a mutual
mistake of fact, this court need not address whether the district court had the authority to
bind Douglas County. This court also need not address whether the Douglas County
Attorney’s Office is properly before this court, or whether there are grounds to conclude
that Douglas County breached the non-prosecution agreement by filing charges against
appellant.

                                             10
       A criminal defendant has a constitutional right to counsel. U.S. Const. amend. VI;

Minn. Const. art. I, § 6. A defendant’s constitutional “right to counsel includes a fair

opportunity to secure an attorney of choice, but an indigent defendant does not have the

unbridled right to be represented by the attorney of his choice.” Worthy, 583 N.W.2d at

278. “A court will grant an indigent’s request for different counsel only if exceptional

circumstances exist and the demand is timely and reasonably made.” Id. (quotation

omitted). “[E]xceptional circumstances are those that affect a court-appointed attorney’s

ability or competence to represent the client.” State v. Gillam, 629 N.W.2d 440, 449 (Minn.

2001). “General dissatisfaction or disagreement with appointed counsel’s assessment of

the case does not constitute the exceptional circumstances needed to obtain a substitute

attorney.” Worthy, 583 N.W.2d at 279. If “the defendant voices serious allegations of

inadequate representation, the district court should conduct a searching inquiry before

determining whether the defendant’s complaints warrant appointment of substitute

counsel.” Munt, 831 N.W.2d at 586 (quotations omitted).

       “[W]hen a criminal defendant makes a request to discharge counsel, the district

court is required to first ascertain how the defendant wishes to proceed after counsel is

discharged, and then determine whether it is appropriate for the defendant to proceed as

requested.” State v. Paige, 765 N.W.2d 134, 139 (Minn. App. 2009). As was the case

here, “a criminal defendant who requests to discharge counsel may wish to proceed with

substitute counsel.” Id.

       Appellant argues that the procedure for discharge of private counsel by a criminal

defendant set forth in Paige should have been followed in her case. Relying on Paige,


                                            11
appellant argues that her public defender should have been immediately discharged, then

she should have been given the choice between hiring substitute counsel or representing

herself, and finally, the district court needed to determine whether it was appropriate for

her to proceed in her chosen manner. Id. But appellant was not represented by private

counsel, and she made it clear that she wished to hire substitute counsel when she appeared

before the district court. Here, there was no need for the district court to conduct an inquiry

into how appellant wished to proceed, and the court implicitly determined that there was

nothing inappropriate about appellant’s choice to hire private counsel.

       Appellant also asserts that, by not immediately discharging her public defender, the

district court deprived her of her constitutional right to choice of counsel and of her right

to effective assistance of counsel. Appellant claims that her public defender could not

provide her with effective assistance because appellant alleged that he was deficient, which

created an insurmountable conflict. Appellant cites to no legal authority in support of these

arguments.

       The facts of this case indicate that appellant appeared before the district court and

claimed that she had hired private counsel. The district court continued the hearing and

ordered that appellant’s new attorney, or her public defender if private counsel was not

retained, file a motion to withdraw her guilty plea. Appellant now argues that the district

court’s delay to afford her new attorney an opportunity to file a motion on her behalf

deprived her of “her rightful case authority by ignoring her request to withdraw her guilty

plea.” Private counsel never materialized, and it appears as though the district court

interpreted appellant’s third letter, along with her failure to raise the issue of private counsel


                                               12
when she appeared for sentencing with her public defender, as a withdrawal of her request

for substitute counsel.

       Despite the fact that she was given the absolute right to withdraw her guilty plea,

appellant argues that her request to withdraw her plea was ignored by the district court.

She asks this court to remand to the district court to fully address her request for substitute

counsel and for specific performance of the non-prosecution agreement, or for another

opportunity to withdraw her guilty plea.

       Although there is no explicit statement in the record, after reviewing the record, this

court concludes that the district court proceeded at sentencing with the understanding that

appellant had withdrawn her request for substitute counsel because private counsel never

materialized. Here, the district court’s decision to proceed without appointing substitute

counsel can also be interpreted as an implicit denial of appellant’s request. The district

court did not conduct a review on the record of whether substitution of counsel was

warranted, but there is no evidence in the record that appellant was prejudiced by the

district court’s failure to discharge her public defender. See State v. Fields, 311 N.W.2d

486, 487 (Minn. 1981) (holding that appellant was not prejudiced by the district court’s

denial of his request for substitute counsel). And if the district court would have discharged

appellant’s public defender, she would have been forced to proceed unrepresented because

there is no evidence in the record of a material breakdown to justify court appointed

substitute counsel. See Gillam, 629 N.W.2d at 449.

       This court affirms the district court’s implicit denial of substitute counsel because

appellant did not make an adequate allegation of deficient representation and because she


                                              13
was not prejudiced by the denial. Furthermore, this court concludes that the district court

was not required to make specific findings on this issue because appellant withdrew her

request for substitute counsel.

       Affirmed.




                                            14
