Gallaher

In the classic words of the Rolling Stones, “You can’t always get what you want.” The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969). A defendant who chooses to take a conditional plea cannot always assume the court will grant its consent. And, a district court that wants to review a defendant’s Presentence Report (PSR) cannot do so until the defendant has granted his consent or entered a plea. Consequently, we are forced to di sappoint both the district court and the petitioner in this appeal. Because the district court exercised its discretion to deny its consent to Gallaher’s conditional plea, the petition for a writ of mandamus must be denied. However, because the district court erred by prematurely reviewing Gal-laher’s PSR, we remand for further proceedings, and reassign this case to a new judge to consider de novo whether to accept Gallaher’s conditional plea.

I. BacKGRound

After James H. Gallaher, Jr. was charged with first degree murder, he entered into a conditional plea agreement. Under the agreement, he pleaded guilty to involuntary manslaughter, but reserved the right to appeal the district court’s earlier denial of his…