State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1010

State of Minnesota,
Respondent,

vs.

Antonyo White,
Appellant.

Filed June 19, 2017
Affirmed
Reyes, Judge

Olmsted County District Court
File No. 55-CR-15-5328

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Bradford Colbert, Saint Paul, Minnesota (for appellant)

Considered and decided by Bjorkman, Pr esiding Judge; Hooten, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges his 93-month sentence , arguing that the district court abused
its discretion by implicitly relying on improper factors when it imposed a sentence at the
top of the presumptive sentencing range. We affirm.
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FACTS
On July 22, 2015, while at his house, appellant Antonyo White and three others
devised a plan to commit a robbery. The other individuals were W.A. and D.A.,
appellant’s brothers, and V.K., whom appellant met that day. Appellant suggested the
victim of the robbery and noted that the victim was an easy target. The plan was for V.K.
to commit the robbery because the victim did not know V.K.
Appellant, W.A., and W.A.’s girlfriend led the way to the victim’s house because
appellant knew its location. D.A., D.A.’s girlfriend, and V.K. followed in a separate
vehicle. Upon arrival, V.K. exited the other vehicle carrying a gun. Appellant, W.A.,
and W.A.’s girlfriend drove away and were not present during the robbery. When the
group reconvened at appellant’s house, appellant learned that V.K. shot the victim in the
knee during the offense.
Respondent State of Minnesota charged appellant with aiding and abetting first-
degree aggravated robbery, first-degree assault, first-degree burglary, second-degree
assault, and felon in possession of a firearm. Pursuant to a plea agreement, appellant
entered a guilty plea to aiding and abetting aggravated robbery in the first degree in
violation of Minn. Stat. § 609.245, subd. 1 (2014). In exchange, the state agreed to
dismiss the remaining charges. The plea agreement also called for a joint
recommendation that appellant receive an executed 67-month sentence, which was the
bottom-of-the-box sentence for a severity-level eight offense and a criminal-history score
of three. Appellant also agreed to testify consistently with his guilty plea against D.A.
and to abide by the conditions of his release.
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At the plea hearing, the district court informed appellant that the joint
recommendation meant that the state and defense were bound to recommend a 67-month
sentence, but that the sentencing court was not bound to this recommendation and could
sentence appellant within the presumptive sentencing range of 67 to 93 months. The
district court also informed appellant that, if he violated any of the plea agreement’s
conditions, the state would no longer be bound by the agreement’s terms. Appellant told
the district court that he understood the terms of the plea agreement. The district court
deferred acceptance of appellant’s plea because the plea agreement required that
appellant testify against D.A. and be law abiding. Appellant was then released from
custody and placed on electronic home monitoring.
Initially, appellant complied with the conditions of his release. However,
appellant was subsequently charged with giving a false name to a peace officer, a gross
misdemeanor. Appellant also admitted to drug use while on electronic home monitoring.
In addition, appellant removed his monitoring bracelet and absconded prior to his
sentencing hearing. Appellant was eventually arrested in Pennsylvania where he faced a
new criminal charge. Further, the state did not call appellant to testify at D.A.’s trial
because, after appellant entered his guilty plea, he gave a conflicting statement to law
enforcement.
At the sentencing hearing, the state requested a top-of-the-box sentence of 93
months because appellant did not comply with all of the plea agreement’s conditions.
Appellant requested a 75-month sentence. The district court entered judgment of
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conviction for the aggravated robbery charge and sentenced appellant to 93 months in
prison. This appeal follows.
D E C I S I O N
Appellant argues that the district court abused its discretion when it imposed a top-
of-the-box sentence because the court implicitly relied on appellant’s subsequent actions
in contravention to the plea agreement as its reason for the sentence. Appellant asserts
that the district court “did not rely on [his] offense and criminal history score in
sentencing him” as required by the sentencing guidelines. We disagree.
This court reviews a sentence imposed by a district court for an abuse of
discretion. State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn.
July 20, 2010). The primary relevant sentencing criteria used in the guidelines are the
offense of conviction and the offender’s criminal history. State v. Misquadace, 644
N.W.2d 65, 68 (Minn. 2002). “All three numbers in any given cell [of the sentencing-
guidelines grid] constitute an acceptable sentence.” State v. Jackson, 749 N.W.2d 353,
359 n.2 (Minn. 2008). Moreover, it would be a rare case that would warrant reversal of
the imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn.
1981).
Here, appellant’s plea agreement calle d for a joint recommendation for a bottom-
of-the-box, 67-month sentence. At the sentencing hearing, the state noted that the joint
recommendation was contingent upon appellant abiding by the conditions of release
during the period between the plea and sentencing and testifying consistently with his
plea against D.A. Appellant’s counsel reiterated that the plea agreement called for a joint
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recommendation for a bottom-of-the-box sentence. After considering the statements
from both parties, the district court imposed a top-of-the-box sentence of 93 months
without further explanation.
Appellant’s argument that the district court implicitly relied on appellant’s
subsequent actions in contravention to the plea agreement as its reason for the imposed
sentence lacks merit. Appellant acknowledges that the district court did not provide any
reasoning to impose a presumptive sentence; and, it was not required to do so. See State
v. Van Ruler, 378 N.W.2d 77, 80-81 (Minn. App. 1985) (noting that district court is not
required to explain its reasoning for imposing sentence within presumptive range). In
addition, appellant recognizes that “because [he] did not comply with all the conditions of
his plea, he was not entitled to be sentenced according to the plea agreement.” Further, at
the plea hearing, the district court informed appellant that, despite the joint
recommendation, he could receive a sentence anywhere within the presumptive range of
67 to 93 months.
Next, appellant’s contention that the district court relied on improper factors in
imposing the sentence because the court did not read the plea transcript is unavailing. At
the sentencing hearing, the district court stated to appellant, “Well the problem is that
you’ve pled guilty in this case and that’s not going to change. . . . You made a deal. And
I have not seen the transcript, but I’m assuming that you laid out facts in your plea of
guilty that they expected you to testify to.” This statement was made in response to
appellant’s request that the district court “review this case and review the details”
because, as appellant claimed, the prosecutor was using him as a “scapegoat.” The
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district court’s statement does not indicate that it relied on improper factors in imposing
the presumptive sentence. The district court heard and considered arguments from the
state, defense counsel, and appellant. The state and defense counsel separately presented
the terms of the plea agreement to the district court. And, the district court imposed a
guideline sentence.
Finally, appellant’s reliance on State v. Kunshier, 410 N.W.2d 377 (Minn. App.
1987), review denied (Minn. Oct. 21, 1987), to assert that the district court could not rely
on appellant’s actions in contravention to the plea agreement’s conditions when imposing
the sentence is misguided. In Kunshier, this court held that the district court abused its
discretion in denying the defendant’s motion to withdraw his guilty plea because the
defendant had the right to withdraw his plea where the district court exercised its
discretion not to follow the plea agreement. 410 N.W.2d at 379-80.
Here, appellant does not assert that the sentencing court violated his right to
withdraw his guilty plea. Further, the district court was not required to allow appellant to
exercise his right to withdraw his guilty plea because, unlike in Kunshier, the district
court did not reject the plea agreement. Rather, the district court imposed a top-of-the-
box sentence, which was within the district court’s discretion even if appellant had
complied with the plea agreement’s conditions. Accordingly, appellant’s efforts to
persuade this court to “reverse the sentence imposed and impose the presumptive
sentence” fail because the district court already imposed a presumptive sentence.
Affirmed.