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This opinion will be unpublished and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
A16-1927

State of Minnesota,
Respondent,

vs.

Kevin Joseph Becker,
Appellant.

Filed September 5, 2017
Affirmed
Rodenberg, Judge

Stevens County District Court
File No. 75-CR-16-108

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

Aaron Jordan, Stevens County Attorney, Morris, Minnesota (for respondent)

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

Considered and decided by Rodenberg, Presiding Judge; Kirk, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Kevin Joseph Becker appeals the district court’s sentence and seeks a
remand with instructions to the district court to order specific performance of a purported
sentencing agreement. Because the record does not suppor t an express and enforceable

2
agreement on sentencing, and because appellant expressly disclaims any desire to withdraw
his guilty plea, we affirm.
FACTS
Appellant was charged with five felonies. 1 At the time of his omnibus hearing,
appellant was serving a 54-month sentence on an unrelated driving-while-impaired (DUI)2
conviction.
Appellant agreed to plead guilty under an arrangement identified in the plea petition
as being that he would “[p]lead guilty to count three [second-degree assault] severity level
6—all other counts dismissed—concurrent with felony DUI sentence.” A separate and
attached “Appendix D” to th e plea petition, signed by appe llant, his attorney, and the
prosecutor, has no boxes checked concerning any agreement to joint sentencing
recommendations, but does contai n this handwritten notation: “Concurrent with DUI
sentence[,] severity level 6—sentence will be less than DUI sentence.”
When appellant’s plea was offered on the record, the district court indicated its
understanding of the agreement by stating that appellant “wou ld be pleading guilty to
Count 3, Second Degree Assau lt; and the remaining counts would be dismissed.” Both
parties agreed with that statement. A pres entence investigation (PSI) was discussed.
Appellant’s trial attorney st ated an “understanding” that the PSI would recommend a

1 The details of the events underlying the charges are unnecessary to deciding this appeal.

2 Minn. Stat. § 169A.20 (2016) designates the offense as “driving while impaired,” but we
use the designation “DUI” to be consistent with the parties’ submissions to the district
court.

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sentence on count three that would be no lo nger than the DUI sentence appellant was
currently serving. The district court aske d whether appellant a nd his attorney were
“making some assumptions about the criminal history score,” and appellant’s trial counsel
agreed that they were. Afte r some not-entirely-clear colloq uy, the district court summed
up its understanding of the plea agreement by directly questioning appellant:
THE COURT: So, Mr. Becker, you’d be pleading guilty to
Second Degree Assault, a felony , which is a serious charge.
That’s Count 3 of the complaint. The other counts would be
dismissed. You know that you’d be receiving an executed go-
to-prison sentence on it. Correct?
APPELLANT: Yes, sir.
THE COURT: And that’s what you want to do?
APPELLANT: Yes, sir.

Appellant was sworn and pleaded guilty. He provided a f actual basis for the plea,
the adequacy of which is not challenged on appeal. The district court deferred acceptance
of the plea and ordered a PSI.
At sentencing, the district court restat ed its earlier understanding of the plea
agreement, that “[t]he agreement as set forth in that report was a concurrent sentence with
what he’s currently serving, and obviously it was Count 3 and dismiss the other counts.”
The prosecutor agreed with this understanding. Appellant’s attorney advised the court that
it was “our understanding” that a concurre nt sentence would not exceed the sentence
appellant was already serving on the DUI convicti on. At this, the district court reiterated
its earlier understanding that “[t]he parties didn’t have an agreement within [the sentencing
guidelines] box.” The prosecutor agreed. A ppellant’s counsel argued for a sentence
consistent with the claimed understanding, but also said “we aren’t asking the court to

4
withdraw the plea or anything of that nature.” There was no further evidence or argument
concerning the plea agreement.
The district court accepted the earlier gu ilty plea, adjudicated appellant guilty of
count three, and sentenced appe llant to 68 months in pris on—a top-of-the-box sentence
that was longer than appellant’s DUI sentence.
This appeal followed.
D E C I S I O N
I. Timeliness of appellant’s brief

As a threshold issue, respondent argues th at appellant’s failure to timely file his
brief deprives this court of jurisdiction to hear the appeal. In criminal cases, an appellant’s
brief must ordinarily be f iled within 60 days of the c ourt reporter’s delivery of the
transcript. Minn. R. Crim. P. 28.02, subd. 10. But in sentencing appeals, the rules require
a criminal appellant to file and serve his sentencing-appeal brief “within 30 days after
delivery of the transcript.” Minn. R. Crim. P. 28.05, subd. 1(1).
A criminal defendant is permitted to ra ise sentencing issues on appeal from the
judgment of conviction. In such cases, the procedures set forth in rule 28.02 govern. See
Minn. R. Crim. P. 28.05, subd. 1 (“A defenda nt appealing the sentence and the judgment
of conviction may combine the two into a singl e appeal; when this option is selected, the
procedures in Rule 28.02 continue to apply.”). This is so even when the briefs in an appeal
from the judgment of conviction ra ise only sentencing issues. “[T]he fact that the brief
filed in the Court of Appeals ra ises only a sentencing issue does not alter the fact that the

5
appeal is from the judge ment of conviction.” State v. Thomas , 371 N.W.2d 533, 535
(Minn. App. 1985).
Appellant’s brief was not late-filed. Moreover, even if appellant’s brief was
untimely, the state has identified no prejudice occasioned by the complained-of late filing.
And “[f]ailure to serve and file a brief timely is not a jurisdictional defect.” State v. Batzer
Constr. Co., 445 N.W.2d 281, 282 (Minn. App. 1989).
Appellant’s brief was not untimely file d, and respondent has not shown any
prejudice. We decline to dismiss the appeal and resolve it on its merits.
II. Plea agreement
Appellant asks us to vacate his sentence and remand with instructions to the district
court to order specific performance of a pl ea agreement for a sent ence no longer than
appellant’s earlier DUI sentence . First, appellant argues that the sentence was unlawful
because the district court imposed a sentence that violated the par ties’ plea agreement,
rendering his plea unintelligent. Second, he argues that the prosecutor violated his right to
due process of law by failing to fulfill the plea agreement and by recommending a sentence
longer than that to which the parties had ag reed. Both arguments are premised on the
existence of a plea agreement that appellant’s sentence would be less than his felony DUI
sentence. The record as constituted does not support appellant’s contention.
“What the parties agreed to in volves an issue of fact to be resolved by the district
court.” State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000). We review for clear error the
district court’s determination of the terms of the parties’ agreement. State v. Robledo-

6
Kinney, 615 N.W.2d 25, 32 (Minn. 2000). But interpretation and enforcement of plea
agreements involve issues of law that we review de novo. Brown, 606 N.W.2d at 674.
The district court twice identified on the record the parameters of the agreement as
being a guilty plea to count three, with dismi ssal of the other counts and a sentence of
unspecified length to be served concurrently with the earlier DUI sentence. It determined
that the parties had not agreed on a particul ar sentence. The transcript of the omnibus
hearing supports this determination. The district court described the sentencing portion of
the plea agreement as being that appellant “w ould request execution of his sentence . . .
and believes that the guidelines amount of time that he would receive in this would actually
be less than” what he was serving on the DUI. The prosecutor, defense counsel, and
appellant all agreed with this description of the plea agreement. The record supports the
district court’s finding concerning the parameters of the plea agreement. 3 The record
supports the district court’s determination th at the plea agreement did not include a term
regarding the length of appellant’s sentence. The sentence the district court imposed is
lawful and within the parameters of the Minnesota Sentencing Guidelines.
What we have here is an imprecise plea agreement with no unequivocal
commitment by either the state or the district court concerning sentencing. Appellant and
his trial counsel were making “some assumptions” which turned out not to be correct. The

3 Counsel generated an imprecise plea petition and “Appendix D.” The petition identifies
the plea agreement exactly as the district court understood it. “Appendix D,” in which no
sentencing or other recommendation is indicated, contains this notation: “Concurrent with
DUI sentence severity level 6—sentence will be less than DUI sentence.” Despite the
prosecutor having signed the appendix, the documen t does not indicate that this is a joint
recommendation. That box on the form is not checked.

7
district court clarified its unde rstanding of the agreement, and sentenced appellant within
the parameters of that understanding. The reco rd supports the district court having done
so.
Because the record supports the district court’s finding that the parties had no
specific agreement concerning sentencing, th e prosecutor’s sentencing argument did not
violate any such claimed agreement.
On the record as constituted, and based on appellant’s explicit disclaimer of any
interest in withdrawing his guilty plea, we decline to address whether appellant’s guilty
plea is valid. The record as constituted is also insufficient to address issues concerning the
validity of the plea in this direct appeal. 4 State v. Anyanwu , 681 N.W.2d 411, 413 n.1
(Minn. App. 2004) (citing Brown v. State, 449 N.W.2d 180, 182-83 (Minn. 1989); State v.

4 It is conceivable on this record that appella nt did not understand the significance of the
exchanges between counsel and the district c ourt, despite his stated agreement with the
district court’s recitation of the agreement. We do not by this opinion discount that
possibility. But the r ecord as constituted contains no such assertion by appellant.
Documents evidencing a plea agreement should be internally consistent and should reflect
the agreement recited to the dist rict court. Counsel have an obligation to ensure that the
person pleading guilty clearly understands the terms of any agreement. Because appellant
has not sought plea withdrawal, we do not address whether, on a complete record, he would
be entitled to that relief. Perhaps he does not seek that relief because, were he to withdraw
his guilty plea and then face th e original charges, he would potentially face a much more
serious criminal sanction were he to be conv icted of a severity-level “A” offense on the
sex-offender grid. See Minn. Sent. Guidelines 4.B (2015) (assigning a presumptive
sentence of 360 months commitment for the firs t-degree criminal sexual conduct charges
the prosecutor dismissed as part of appellant’s plea agreement). That appellant apparently
prefers the sentence he received from the di strict court over that much-more-serious
potential sentence does not mean that counsel for both appellant and the state ought not
have been clearer in their presentation of th e plea agreement both to appellant and to the
district court.

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Schaefer, 374 N.W.2d 199, 201 (Minn. App. 1985)); see State v. Green, 719 N.W.2d 664,
674 (Minn. 2006) (declining to address inadequate-assistance issue on direct appeal, where
the allegations are “more properly raised in a petition for postconviction relief”). In his
brief, appellant’s only request for relief on appeal is that we order specific performance of
a 51-month sentence on count three. Neither the law nor the record support such a remedy
where the district court twi ce identified its understanding of the plea agreement on the
record, and sentenced appellant in conformity with that understanding. Sentencing is
inherently a function of the district court. Kaiser v. State , 641 N.W.2d 900, 907 (Minn.
2002); State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982); State v. Pearson, 479 N.W.2d 401,
405 (Minn. App. 1991), review denied (Minn. Feb. 10, 1992). The district court’s sentence
here conforms to both the Minnesota Sent encing Guidelines and the plea agreement
presented to it.
Affirmed.