                           This opinion will be unpublished and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
                                      A16-0182

                                    State of Minnesota,
                                        Respondent,

                                            vs.

                                    Ricardo Kletschka,
                                        Appellant.

                                    Filed July 25, 2016
                                         Affirmed
                                     Johnson, Judge

                                Steele County District Court
                                  File No. 74-CR-14-1071

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

Daniel A. McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Terry A. Watkins, Watkins Law Office, LLC, Faribault, Minnesota (for appellant)

         Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Stauber,

Judge.

                          UNPUBLISHED OPINION

JOHNSON, Judge

         Ricardo Kletschka pleaded guilty to second-degree assault with a dangerous weapon

pursuant to a plea agreement. The district court imposed a sentence of 60 months of

imprisonment, which is the statutory mandatory-minimum sentence in light of the fact that,
in 1986, Kletschka was convicted of second-degree assault while using a firearm. We

conclude that the state did not breach the parties’ plea agreement and that Kletschka’s prior

conviction is a qualifying prior conviction that gives rise to a statutory mandatory-

minimum sentence of 60 months. Therefore, we affirm.

                                          FACTS

       One evening in May 2014, Kletschka was drinking at his home with his daughter,

E.K., and his son-in-law, C.K. Kletschka was intoxicated. When Kletschka heard a song

that triggered memories of the Vietnam War, he briefly went upstairs and returned holding

something behind his back, which C.K. suspected was a gun.             E.K. and C.K. fled.

Kletschka followed them onto the porch, where he fired two shots toward them. Police

officers found E.K. and C.K. hiding behind a building approximately one block from

Kletschka’s home. Other officers arrested Kletschka outside his home.

       The state charged Kletschka with five offenses: (1) second-degree attempted

murder, in violation of Minn. Stat. § 609.19, subd. 1(1) (2012); (2) second-degree assault

with a dangerous weapon, in violation of Minn. Stat. § 609.222, subd. 1 (2012); (3) second-

degree assault with a dangerous weapon, in violation of Minn. Stat. § 609.222, subd. 1;

(4) ineligible person in possession of a firearm, in violation of Minn. Stat. § 609.165,

subd. 1b(a) (2012); and (5) reckless use of a dangerous weapon, in violation of Minn. Stat.

§ 609.66, subd. 1(a)(1) (2012). The complaint also alleged that Kletschka had been

convicted of second-degree assault in 1986.




                                              2
       In April 2015, Kletschka appeared before the district court and expressed his

intention to plead guilty pursuant to a plea agreement. The prosecutor articulated the

parties’ agreement as follows:

                      This is the agreement as it sits right now. There will be
              a guilty plea to Count 2, Second Degree Assault, and that
              specifically deals with victim [C.K.]. The remaining counts
              would be dismissed. Defendant is free to argue for a departure
              at the time of sentencing. And any other conditions or terms
              should be left to the court subject to argument.

Kletschka did not object to the prosecutor’s recitation of the plea agreement, and he

acknowledged that he understood the agreement. Kletschka entered a Norgaard plea based

on his lack of recollection of the pertinent facts. See State ex rel. Norgaard v. Tahash, 261

Minn. 106, 110 N.W.2d 867 (1961). The district court accepted the plea.

       In October 2015, Kletschka appeared before the district court for sentencing. The

state requested a 60-month prison sentence, which the prosecutor noted is “the presumptive

sentence . . . due to [Kletschka’s] prior conviction.” The state introduced various exhibits

concerning the 1986 conviction, including a complaint, a guilty-plea petition, and a

sentencing order. Kletschka moved for a downward dispositional departure on the ground

that his commission of the offense was related to mental-health and alcohol issues that

could be addressed in probation. Kletschka called three witnesses to testify on his behalf:

his wife, E.K., and a psychologist who performed psychological testing on him. After all

the evidence had been submitted, the district court noted that it was obligated to impose a

60-month sentence because of the statutory mandatory-minimum sentence and Kletschka’s

prior conviction. The district court nonetheless considered the factors relevant to a



                                             3
sentencing departure and concluded that, if the court had discretion to consider the matter,

a departure would be inappropriate. The district court imposed a 60-month prison sentence.

Kletschka appeals.

                                      DECISION

       Kletschka argues that the district court erred by imposing a 60-month sentence. The

statute on which the district court relied provides as follows:

              [A]ny defendant convicted of an offense listed in subdivision
              9 in which the defendant or an accomplice, at the time of the
              offense, had in possession or used, whether by brandishing,
              displaying, threatening with, or otherwise employing, a
              firearm, shall be committed to the commissioner of corrections
              for not less than three years, nor more than the maximum
              sentence provided by law. Any defendant convicted of a second
              or subsequent offense in which the defendant or an accomplice,
              at the time of the offense, had in possession or used a firearm
              shall be committed to the commissioner of corrections for not
              less than five years, nor more than the maximum sentence
              provided by law.

Minn. Stat. § 609.11, subd. 5(a) (2012) (emphasis added).

       In this case, Kletschka was convicted of second-degree assault with a dangerous

weapon. The list of offenses in subdivision 9 of section 609.11 includes second-degree

assault. Id., subd. 9. The district court made a finding of fact at sentencing that Kletschka

used a firearm during the commission of the present offense, and that finding is supported

by the evidence in the record. The district court also made findings of fact that Kletschka

was convicted of second-degree assault in 1986 and that Kletschka used a firearm in the

commission of that offense. In light of its findings of fact, the district court was required




                                              4
to impose a 60-month prison sentence. See id., subds. 5(a), 9; State v. Mayl, 836 N.W.2d

368, 371-72 (Minn. App. 2013), review denied (Minn. Nov. 12, 2013).

       Notwithstanding this straightforward application of the law to the facts of this case,

Kletschka argues that the district court erred by imposing a 60-month prison sentence.

                                             A.

       Kletschka contends that the mandatory-minimum statute does not apply on the

ground that the state breached the parties’ plea agreement when it submitted the prior

conviction to the district court at sentencing and requested a mandatory-minimum

sentence.

       “‘[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.’” State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (alteration in

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

If the prosecutor breaches a plea agreement, a district court “may allow withdrawal of the

plea, order specific performance, or alter the sentence if appropriate.” Id. “But a plea

agreement calling for an unauthorized sentence cannot be specifically enforced.” Id. “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.” Id. (alteration in

original) (quoting United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985)). This court

applies a de novo standard of review to the interpretation of a plea agreement. James v.

State, 699 N.W.2d 723, 728 (Minn. 2005); Brown, 606 N.W.2d at 674.




                                              5
       Kletschka contends that he bargained for a 36-month sentence, which would have

been the statutory minimum in the absence of a prior conviction, and was planning to move

for a downward departure, but that the state “essentially nullified any downward departure

argument” by bringing his prior conviction to the attention of the district court and

requesting a statutory mandatory-minimum sentence of 60 months. Kletschka contends

that the state’s actions in seeking a mandatory 60-month sentence cannot be reconciled

with the plea agreement. Kletschka contends that the terms of the plea agreement “must

be fulfilled.” See Santobello, 404 U.S. at 262, 92 S. Ct. at 499. He requests that this court

reduce his sentence to 36 months to fulfill the terms of the plea agreement.

       Kletschka’s contention fails because he has not identified any term of the parties’

plea agreement that was breached by the state. The plea agreement articulated by the

prosecutor on the record at the plea hearing consists of only three terms. First, Kletschka

agreed to plead guilty to count 2. Second, the state agreed to dismiss the remaining counts.

And third, the state agreed that Kletschka would be “free to argue for a departure at the

time of sentencing.” All three of those obligations were satisfied: Kletschka pleaded guilty

to count 2, the state dismissed the remaining counts, and Kletschka was permitted to argue

for a downward dispositional departure at sentencing. The parties did not agree on a

particular sentence, did not agree that the statutory mandatory minimum would be 36

months, and did not agree that the state would not offer evidence of the 1986 prior

conviction. If Kletschka and his trial attorney had wanted to ensure a different result, they

should have negotiated a different plea agreement or objected to the prosecutor’s recitation




                                             6
of the plea agreement. Kletschka’s contention that the state breached the plea agreement

is without merit.

       Even if Kletschka could establish a breach of the plea agreement, he would

encounter an additional obstacle. As noted above, if the state breaches a plea agreement,

a district court “may allow withdrawal of the plea, order specific performance, or alter the

sentence if appropriate.” Brown, 606 N.W.2d at 674. “But a plea agreement calling for an

unauthorized sentence cannot be specifically enforced.” Id. In this case, Kletschka does

not seek withdrawal of his guilty plea; rather, he asks this court to reduce his sentence to

36 months, i.e., to order specific performance. In light of the caselaw, we cannot grant him

the relief he seeks. See id.

       Thus, Kletschka is not entitled to a reduced sentence on the ground that the state

breached the parties’ plea agreement.

                                             B.

       Kletschka also contends that the mandatory-minimum statute does not apply on the

ground that his prior conviction is not a qualifying prior conviction for purposes of the

statute, for two reasons.

       First, Kletschka contends that the 1986 prior conviction is too stale, having occurred

30 years before he committed the present offense.           Kletschka acknowledges that

“[r]emoteness is not addressed in Minn. Stat. 609.11, subd. 5.” He nonetheless contends

that “it is a logical factor to be addressed” and that it “needed to be considered and

evaluated in regards to whether the prior conviction . . . represented a qualifying prior

conviction.” Kletschka cites no caselaw in support of his contention.


                                             7
       The plain language of the mandatory-minimum statute requires a sentence of at least

five years for “[a]ny defendant convicted of a second or subsequent offense in which the

defendant . . . , at the time of the offense, had in possession or used a firearm.” Minn. Stat.

§ 609.11, subd. 5(a). The statute does not place any temporal limits on the prior conviction

that is necessary for a determination that a defendant has committed a “second or

subsequent offense.” Id. The absence of any such limitation indicates that any prior

conviction of an offense listed in subdivision 9 that involved the possession or use of a

firearm is sufficient to trigger the mandatory-minimum sentence, regardless when the

defendant committed the prior offense. Thus, Kletschka’s prior conviction is a qualifying

conviction for purposes of the mandatory-minimum statute, even though he committed the

prior offense approximately 30 years before committing the present offense.

       Second, Kletschka suggests that the state did not introduce evidence at the

sentencing hearing that is sufficient to establish that he was convicted of an offense that is

listed in subdivision 9 of section 609.11. In fact, the record of the sentencing hearing

contains multiple sources of evidence that establish the nature of the prior conviction. The

sentencing record includes a plea petition, which states, “I will enter a plea of guilty to an

amended charge of 2nd Degree Assault.” The 1986 sentencing order confirms that

Kletschka was convicted of second-degree assault. In addition, the complaint alleging that

offense alleged that Kletschka used a firearm during the commission of the offense.

Furthermore, Kletschka’s wife testified in detail at the sentencing hearing in this case that

Kletschka used a firearm in the commission of the prior offense. This evidence supports

the district court’s finding that Kletschka has a qualifying prior conviction that makes the


                                              8
present offense a “second or subsequent offense in which the defendant . . . , at the time of

the offense, had in possession or used a firearm.” See Minn. Stat. § 609.11, subd. 5(a).

Thus, the district court was required to impose the statutory mandatory-minimum sentence.

       In sum, the district court did not err by sentencing Kletschka to 60 months of

imprisonment.

       Affirmed.




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