concurring specially.
I concur in the result. Appellant understood that the maximum penalty could be up to three years imprisonment. The plea agreement provided that the terms and conditions of sentencing would be left to the discretion of the trial court, and appellant received the benefit he had bargained for.
However, I caution trial courts and defense counsel against an open plea of guilty where the criminal history score is not determined and it is conceded that the final score determination will have far reaching consequences. It would have been prudent for the trial court here to insist on determining the criminal history score before accepting the plea. Since defense counsel apprised the court that he would request permission to withdraw the guilty plea if the criminal history score turned out to be greater than three, the court should have anticipated the exact problem now raised on appeal.
The State made its position clear to appellant’s attorney. The State indicated it would oppose any motion to withdraw the guilty plea if the criminal history score were four rather than three. The court and both counsel knew that just a one point difference in the score signified a drastic difference in appellant’s presumptive sentence. A score of three would call for a presumptive sentence of approximately two years probation, and a criminal history score of four would call for a presumptive executed prison term of about two years.
I question the advisability of defense counsel wanting to proceed with an open plea of guilty with a criminal history score yet to be determined, and suggest that the trial court should have withheld acceptance of the guilty plea until the criminal history score was finalized.
However, with the record made by the trial court and both attorneys, I do not find a manifest injustice or other reversible error in the proceedings.