specially concurring.
[¶ 19] I concur in the result. In fact, I concur in everything the majority says, as far as the opinion goes. I write separately because, in my opinion, the majority does not go far enough. The majority says the trial court, on remand, must attempt to modify Ostafin’s sentence to allow for good time. I would hold the trial court must consider modifying the sentence, within the parameters of the original plea agreement, to allow for good time. However, if such a modified sentence is unacceptable to the trial court, the trial court may then exercise its authority under Rule 11(d)(4), N.D.R.Crim.P., by rejecting the plea agreement, as modified to allow for a legal disposition, and affording the defendant an opportunity to withdraw his plea.
[¶ 20] In my opinion, the trial court’s error in this case was to completely ignore the plea agreement, and to proceed as if the agreement had been rejected, even though the court never stated on the record, as required by Rule 11(d), that it rejected the agreement. During the hearing on the motion to correct sentence, the trial court very correctly pointed out that in Trieb II this court reversed and remanded to the district court to amend Trieb’s sentence to allow for good time, or to allow Trieb to withdraw his plea of guilty. But, a few moments later, before Ostafin’s attorney had a chance to suggest how the sentence might be amended to allow for good time, the trial court stated: “Now I will say this, Mr. Espeseth, if you were prepared to argue that the defendant should get his 17 years but get credit for good time, that argument isn’t going to get anywhere because if the sentence is illegal in part, it’s all illegal,” a statement clearly contrary to the instruction in Trieb II to amend the sentence to allow for good time.
[¶ 21] The majority attempts to correct the trial court’s failure to consider the possibility of modifying the sentence, but the majority does not recognize all of the trial court’s responsibility and authority under Rule 11(d), N.D.R.Crim.P. On reviewing Trieb II, I can easily understand how this might happen. The author of Trieb II, a trial judge of some years’ experience, but a comparative neophyte at the appellate opinion-writing business, assumed the existence and effect of Rule 11(d) without explicitly mentioning it. Unfortunately, what had seemed as familiar as daily bread to the author has proven, under these circumstances, to be far less than apparent to anyone else. Because of my inarticulate assumption and oversight in Trieb II, I offer this belated effort to explain my understanding of the impact of Rule 11(d) when a trial court is called upon to correct an illegal sentence imposed as the result of a plea agreement.
[¶ 22] Rule 11(d)(3), N.D.R.Crim.P., says if a court accepts a plea agreement, “the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement.” Necessarily implicit in that requirement is the idea that if the court is going to impose a disposition less favorable than that provided for in the agreement, the court is obligated to reject the agreement. Rule 11(d)(4) says if a court is going to reject a plea agreement:
“[T]he court, on the record, shall inform the parties of this fact, advise the defendant personally in open court ... that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if the defendant persists in a guilty plea the disposition of the ease may be less favorable to the defendant than that contemplated by the plea agreement.”
[¶ 28] In Trieb II, after declaring the sentence embodied in the plea agreement to be *621illegal, this author gave no further guidance, but simply -wrote, “[w]e reverse and remand to the district court to amend the sentence to allow for good time, or to allow Trieb to withdraw his guilty plea.” Trieb II, 516 N.W.2d at 292. Intended, but unstated, was the implication that any amendment of the sentence to allow for good time would have to be done under Rule 11(d)(3): it would have to provide for a disposition no less favorable to the defendant than that contained in the original — even though illegal — plea agreement. Also intended, but -unstated, was the further implication that if an amendment to the sentence within the outer limits established by the original plea agreement would not be acceptable to the trial court, then the court could reject the modified version of the plea agreement under Rule 11(d)(4), advise the defendant of that fact, and afford him the opportunity to withdraw his guilty plea.
[¶24] In attempting to follow the cryptic instruction in Trieb II, the trial judge there, just like the trial judge in this case, chose not to attempt to amend the sentence to allow for good time, but went directly to step two and offered the defendant an opportunity to withdraw his plea of guilty. That oversight by the Trieb judge never became an issue in that ease, because Trieb, after being fully advised of the potential consequences, including the possibility of a life sentence, persisted in his plea of guilty. The fact that the trial court never formally rejected the plea agreement — or any possible disposition more favorable to the defendant — was never raised by Trieb as an issue in his third appeal.
[If 25] The difference here is that Ostafin has not persisted in his plea of guilty, but has withdrawn it, resulting in an appeal not by Ostafin, but by the State. Thus, the issue not raised in Trieb is now before us. I agree with the majority that the trial court should consider the possibility of honoring as much of the original plea agreement as possible before offering the defendant an opportunity to withdraw his plea. I also suggest, however, we cannot require the trial court to abide by Rule 11(d)(3) without also providing the court the option under Rule 11(d)(4) of rejecting the new disposition that may result under the plea agreement. If the trial court is to assume the responsibility under Rule 11(d)(3) of imposing a sentence that, in order to be legal, may have to be more favorable to the defendant than the disposition provided in the original plea agreement, then the trial court must also have the opportunity under Rule 11(d)(4) to reject that agreement if the resulting legal disposition proves to be an inadequate punishment for the offense committed.
[¶26] If the majority, by its omission, means to hold that the trial court must modify Ostafin’s sentence to allow for good time, but does not have the authority to reject the proposed modified sentence by rejecting the underlying plea agreement, then the majority is overruling both Trieb II and Trieb III. In Trieb II, as already noted, we remanded to the trial court “to amend the sentence to allow for good time, or to allow Trieb to withdraw his guilty plea.” Trieb III, 516 N.W.2d at 292. (Emphasis added.) In Trieb III the trial court declined to sentence Trieb under the plea agreement, and instead offered Trieb the opportunity to withdraw his plea. When Trieb rejected that opportunity and persisted in his plea of guilty, the trial court proceeded to resentence him, and we affirmed.1
[¶ 27] If this court’s decisions in Trieb II and Trieb III are to stand, the majority’s *622opinion in this ease must be read to require the trial court only to consider the possibility of resentencing Ostafin. The trial court must also still have the authority to reject the proposed new sentence, and if it does, to afford Ostafin the opportunity to withdraw his guilty plea. With the understanding the majority’s opinion does not overrule Trieb II and Trieb III, I concur.
[¶ 28] William A. Neumann
. Because Trieb rejected the opportunity to withdraw his guilty plea, the trial court was correct when it advised Trieb that it could impose any sentence, up to and including the maximum for the offense Trieb had committed. As it happened, the trial court imposed a new sentence that closely approximated the intent of the original, provided that Trieb does not lose any of the good time it is assumed he will be able to earn. While at one point in Trieb III this court said, "[ajfter Trieb declined to withdraw his guilty plea, the resentencing left him with the benefit of his plea bargain," Trieb III, 533 N.W.2d at 681, such a disposition clearly was not necessary to sustain the legality of the sentence imposed. See Christopher Vaeth, Annotation, Guilty Plea as Affected by Fact That Sentence Contemplated by Plea Bargain Is Subsequently Determined to Be Illegal or Unauthorized, 87 A.L.R.4th 384, 397 (providing a list of cases that have held a defendant’s plea of guilty can serve as the basis for the imposition of a lawful sentence when the defendant declines an opportunity to withdraw the plea of guilty after a determination that the agreed-upon sentence cannot be lawfully imposed).