This opinion will be unpublished and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UNPUBLISHED OPINION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.
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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
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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
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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.
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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
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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.
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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
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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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