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STATE OF MINNESOTA IN COURT OF APPEALS A06-2440 State of Minnesota, Respondent, vs. Vern Lewis Mudgett, Appellant. Filed May 20, 2008 Affirmed Ross, Judge Ramsey County District Court File No. K0-06996; K4-06-1066 Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent) Lawrence Hammerling, Chief Appellate Public Defender, Michael W. Kunkel, Assistant Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant) Considered and decided by Ross, Presiding Judge; Lansing, Judge; and Johnson, Judge. SYLLABUS A convicted defendant does not present a genuine pre-sentencing motion to withdraw his guilty plea when he conditions the making of that potential motion on whether the district court is inclined to deny his pending motion for a downward sentencing departure.

OPINION ROSS, Judge This appeal arises from Vern Mudgett's challenge to his conviction after he pleaded guilty to two counts of third-degree burglary. Mudgett argues that the district court abused its discretion when it failed to consider his request to withdraw his plea. Before his sentencing hearing, Mudgett moved the district court to depart downward from the presumptive sentence. At the hearing, he informed the court through counsel that he would seek to withdraw his guilty plea if the court is not inclined to grant his motion for a downward departure. The district court did not consider Mudgett's

statements to constitute a proper motion to withdraw his guilty plea, and it sentenced him according to the terms of his plea agreement. Because the district court did not abuse its discretion when it treated Mudgett's comments as something less than a pre-sentencing motion to withdraw his guilty plea, we affirm. FACTS The facts underlying this dispute are simple. After Vern Mudgett entered two garages in St. Paul, stealing tools from one, the state charged him with two counts of third-degree burglary, and he agreed to plead guilty to both. His plea agreement

contemplated two concurrent 45-month terms in prison, which he acknowledged was an appropriate sentence based on the sentencing guidelines. He admitted that factors

warrant the lengthy sentence based on his criminal history and the nature of his previous convictions. He acknowledged that of his fourteen previous criminal convictions, five were felony burglaries, qualifying him as a career offender. 2

Despite the plea agreement, Mudgett moved the district court to impose a sentence that included a downward dispositional or durational departure from the presumptive sentence. While arguing at his sentencing hearing in support of a downward departure, Mudgett's attorney conditionally offered to make a plea-withdrawal motion, the contingency being whether the district court was leaning toward denying his departure motion: Today [Mudgett] indicated to me that if the court is not inclined to depart in this matter either dispositionally or durationally, he would seek to withdraw his plea. I just ask to be heard on that in the event the court is not inclined to depart. The district court did not deem that statement to present a valid pre-sentencing motion to withdraw the plea. It responded that because the sentencing hearing had been continued several times, the court would sentence Mudgett and address an actual motion for plea withdrawal after one was filed. The court then sentenced Mudgett to the presumptive sentence according to the terms of the plea agreement. Mudgett filed no post-sentencing motion to withdraw his plea, and he appeals. ISSUE Did the district court abuse its discretion by failing to treat appellant's statements at his sentencing hearing as a pre-sentencing motion to withdraw his guilty plea? ANALYSIS Mudgett's argument that the district court abused its discretion by failing to entertain arguments or otherwise consider his motion to withdraw his guilty plea fails for the basic reason that he made no motion to withdraw his plea.

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Mudgett accurately frames the primary question: As a threshold inquiry, this court must first determine whether appellant did indeed move the district court prior to sentencing for withdrawal of his plea such that the court would then have been obligated to exercise its discretion in accord with Minn. R. Crim. P. 15.05, subd. 2. Our answer to the question is, no. Mudgett asserts that he made a proper pre-sentencing motion to withdraw his plea, contending that the district court was bound to address his request to withdraw once the court determined that it was going to deny his motion for a downward sentencing departure. The state ignores the substantive issue and focuses only on whether the rules allow a defendant to make an oral motion to withdraw a guilty plea, and it contends that Mudgett was required to submit a written motion. See Minn. R. Crim. P. 32 (A motion other than one made during a . . . hearing shall be in writing unless the court or these rules permit it to be made orally.). We need not decide whether a motion must be written because Mudgett's contingent request, written or not, did not require treatment as a pre-sentencing plea-withdrawal motion. The rules do not specify any particular language required for a request to be a motion, and ordinary definitions of the terms do not give much guidance. The rules provide only that [a]n application to the court for an order shall be by motion. Minn. R. Crim. P. 32. A motion is simply a written or oral application requesting a court to make a specified ruling or order. Black's Law Dictionary 1036 (8th ed. 2004). And an application is a request or petition. Id. at 108. So in circular fashion, a motion is an application requesting court action, and an application is simply a request; then, a motion is a request that requests action. This clearly is not helpful. 4

At least in civil litigation, it has been said that an informal reference, such as a party's objection to a court order that is not accompanied by a specific application for relief, is not a motion. Raughley v. Penn. R. Co., 230 F.2d 387, 391 (3rd Cir. 1956). But Mudgett's informal comments included a clear application for relief. Mudgett

vaguely--but clearly enough to be understood--requested the district court to entertain argument on a pre-sentencing request to withdraw his guilty plea if the district court is not inclined to sentence Mudgett according to his formalized motion for a downward sentencing departure. So our decision as to whether Mudgett's request is the kind that must be treated as a motion under the rules depends on what the meaning of the word, if, is. We conclude that Mudgett's if justified the district court's decision not to entertain his conditional plea-withdrawal request. The if rendered his statement to be a contingent request asking the district court to consider the validity of his guilty plea on the condition that the district court was itself inclined to rule against Mudgett's pending sentencing motion. The triggering event for Mudgett's motion was the district court's own deliberations: If the district court was disinclined to grant, or was leaning away from granting, or was thinking disfavorably about, Mudgett's sentencing motion, then the district court was to avoid making any sentencing ruling based on that disinclination and to replace the pending motion with one that might invalidate Mudgett's underlying guilty plea altogether. He asked the district court to consider the replacement motion depending on the court's assessment of the likely outcome of the yet-undecided sentencing motion. So understood, Mudgett's request was not a motion that required district-court action. 5

Mudgett is correct that he has a right to a judicial ruling on an actual motion, see Minn. Stat.

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