State v. Mackey, 2011 ND 203

Mackey was charged with three counts of gross sexual imposition involving a 14-year-old female between July and September 2009.
The State and Mackey entered a binding plea agreement: guilty to the first count; second count to pretrial diversion for 10 years; remaining charges dismissed; anticipated sentence 5–15 years with State arguing for more within that cap.
At plea, the court explained the potential sentence in terms of time to be served, not time imposed to be served.
On August 10, 2010, the court sentenced Mackey to 30 years with 8 years served and 22 suspended for 5 years; no objection was raised at sentencing.
Mackey appealed in September 2010; while that appeal was pending, he moved on January 28, 2011 to withdraw his guilty plea under Rule 35(a) and 32(d) claiming the sentence exceeded the plea agreement.
The district court later amended the sentence to 15 years (8 to serve, 7 suspended for 5 years) and Mackey filed a second appeal in February 2011.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the original sentence was illegal and thus correctable under Rule 35(a).	Mackey contends the sentence violated the plea agreement and was illegal.	State contends the sentence can be corrected within the plea framework, preserving the agreement.	Yes; the court amended the sentence, preserving the plea terms, so withdrawal was not necessary.
Whether Mackey is entitled to withdraw his guilty plea to correct manifest injustice.	Mackey argues manifest injustice from an illegal sentence despite the plea.	State argues no manifest injustice as the amended sentence aligns with the plea’s intent.	No; Mackey failed to establish manifest injustice warranting withdrawal.
Whether Rule 11(c)(4) violation occurred and required withdrawal.	Mackey claims the court failed to follow Rule 11(c)(4) advising, affecting voluntariness.	Court contends Rule 11(c)(4) concerns when the court rejects a plea; here the sentence was later corrected.	No reversible Rule 11(c)(4) violation; correction rendered moot for withdrawal purposes.

Ostafin v. State, 1997 ND 102 (1997) (rule: correction of illegal sentence preferred if it preserves plea; withdrawal only if correction impossible)
State v. Pixler, 2010 ND 105 (2010) (manifest injustice standard governs post-sentence withdrawal; abuse of discretion standard reviewed)
State v. Irwin, 2010 ND 132 (2010) (manifest injustice review; discretion of trial court)
State v. Vandehoven, 2009 ND 165 (2009) (Rule 11 deficiencies can produce manifest injustice requiring withdrawal)
State v. Feist, 2006 ND 21 (2006) (Rule 11 incompleteness or confusion supports manifest injustice findings)
State v. Dimmitt, 2003 ND 111 (2003) (court involvement in plea discussions can create manifest injustice)
Farrell v. State, 2000 ND 26 (2000) (failure to comply with Rule 11 can necessitate withdrawal to correct manifest injustice)