State of Minnesota, Respondent, vs. Thomas L. Nelson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-1951

 

State of Minnesota,
Respondent,
 
vs.
 
Thomas L. Nelson,
Appellant.

 

Filed August 5, 2003

Affirmed

Stoneburner, Judge Concurring specially, Minge, Judge

 

Ramsey County District Court

File No. KX94514

  Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N STONEBURNER, Judge

 

            Appellant challenges the district court's denial of his postconviction petition to modify his sentence or allow him to withdraw his guilty plea to second-degree sexual misconduct that resulted in a 36-month sentence plus ten years of conditional release.  Appellant claims the conditional-release term violates his negotiated plea and renders his plea involuntary.  We affirm.

D E C I S I O N

 

            We review postconviction proceedings for abuse of discretion and will not reverse a postconviction court's findings where there is sufficient evidentiary support for those findings in the record.  Dukes v. State,621 N.W.2d 246, 251 (Minn. 2001).  The interpretation and enforcement of plea agreements present issues of law, which are subject to de novo review.  State v. Jumping Eagle,620 N.W.2d 42, 43 (Minn. 2000).  While a defendant does not have an absolute right to withdraw a guilty plea, a court must allow the withdrawal of a plea if the request for withdrawal is timely and necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; Perkins v. State,559 N.W.2d 678, 685 (Minn. 1997).  A manifest injustice occurs if the plea is not accurate, voluntary, and intelligent.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  

            On April 13, 1994, appellant signed a plea petition and entered a plea of guilty to a charge of second-degree criminal sexual conduct.[1]  The plea agreement provided:

[I]f I entered a plea of guilty, the prosecutor will do the following:

Plead as chargedGuideline sentencing. State won't seek sentencing under Minn. Stat. § 609.352.  Mandatory minimum of 3y to be served per Minn. Stat. § 609.346. Norgaard plea.

 

Appellant testified that he understood

that by pleading guilty to the criminal sex conduct in the second degree the State has agreed to recommend guidelines sentencing which would most likely include a mandatory minimum of three years to be served and that the State will not seek sentencing under the statute that I mentioned on the record.

 

The presentence-investigation report included a sentencing worksheet noting the presumptive-guideline sentence of a commitment to the commissioner for 36 months under Minn. Stat. § 609.343 (1992), but recommended that the court consider a double durational departure plus additional supervised release of ten years pursuant to Minn. Stat. § 609.346, subd. 5 (1992).[2]  The district court agreed to sentence appellant pursuant to the sentencing guidelines and committed appellant to the Commissioner of Corrections for 36 months plus a ten-year period of supervised release.  The sentencing court stated:

At least two-thirds of this sentence, namely 24 months, shall be served in prison.  And thereafter you shall serve a maximum of ten years on supervised release.   If you commit a disciplinary offense in prison or during a supervised release, your actual prison time can be extended up to the full sentence, which I have just imposed on you.

 

The prosecutor reminded the court that the plea agreement contemplated an order, in effect throughout the prison sentence and conditional-release period, prohibiting contact with the victim, and the district court imposed such an order.  The written warrant of commitment[3] did not include the ten-year conditional release imposed by the court and was amended on February 28, 2000, to add the ten-year conditional-release term.

            Appellant contends that because the conditional-release term was not discussed in his plea agreement or at the plea hearing, and because it was not explained at sentencing, his plea was not accurate, voluntary, or intelligent and he should be allowed to withdraw his plea.  But the postconviction court found that appellant was aware of the conditional-release term when he entered his plea, as evidenced by the plea agreement and what occurred at sentencing.  We conclude that the record supports this finding. 

            Appellant's plea petition calls for "guidelines sentencing," and the guidelines specifically refer to the ten-year conditional-release term as a requirement in sentencing for a second-degree criminal-sexual-conduct conviction.  Minn. Sent. Guidelines Cmt. II.E.05; see also State v. Brown, 606 N.W.2d 670, 673 n.3 (Minn. 2000) (recognizing that guidelines specifically refer to conditional-release term as mandatory part of sentence for criminal-sexual-conduct offense).  At the plea hearing, appellant acknowledged his satisfaction with his attorney and had no questions about the terms of the plea agreement.  The record does not reflect any agreement to a maximum sentence of three years; it reflects only that the prosecutor agreed to recommend a guidelines sentence, and appellant acknowledged that a three-year minimum sentence might be required under the guidelines. 

            The presentence investigation included the mandatory conditional-release term in the sentencing recommendation, and the term was imposed, without objection or question from appellant or his attorney, on the record at sentencing.  The conditional-release period was further referenced, without objection or question from appellant or his attorney, when the prosecutor reminded the court that a no-contact order was part of the plea agreement and that it was to remain in effect throughout the conditional-release period.  The court also informed appellant at sentencing that his actual prison time could be extended up to the full sentence imposed.  The district court concluded that if appellant had been unaware of the required ten-year conditional-release period at the plea hearing, he or his attorney would have challenged imposition of the term at sentencing. 

            Appellant also argues that he specifically negotiated a 36-month sentence and that his plea agreement was violated by addition of the ten-year conditional-release term. Appellant relies on Jumping Eagle to assert that he should be allowed to withdraw his plea or, in the alternative, that the conditional-release term should be vacated to honor the plea agreement.  In Jumping Eagle, the court held that if the addition of the conditional-release term increases the sentence beyond the upper limit of a court accepted plea agreement, the plea must either be withdrawn or the sentence modified so that the period of incarceration does not exceed the upper limit of the plea agreement.  Jumping Eagle, 620 N.W.2d at 44.  But unlike Jumping Eagle, appellant did not negotiate for a specific length of sentence.  He negotiated for a guideline sentence, which includes the conditional-release term.  The district court imposed a guidelines sentence.  The postconviction court did not abuse its discretion in concluding that imposition of the conditional-release term did not violate appellant's plea agreement.

            Affirmed.

MINGE, Judge (concurring specially)

            I concur in the disposition of this case.  In 1994, appellant pleaded guilty with the understanding that he would receive "guideline sentencing" and that there would be a 36-month mandatory/minimum sentence. It is difficult to conclude the appellant was aware of this conditional-release term.  Although at sentencing the concept of conditional/supervised release was mentioned, the ten-year conditional-release portion of the sentence should have received explicit explanation by the district court or counsel.  The lack of any recognition of the conditional-release term is confirmed by the subsequent amendment of the warrant of commitment to cover the ten-year conditional release. 

            To say that appellant accepted the ten-year conditional-release portion of the sentence because his plea agreement refers to "guideline sentencing" is a borderline proposition.  There is no discussion of conditional release in the actual sentencing guidelines but only in the comments.  See Minn. Sent. Guidelines Cmt. II.E.05.  I concur because that comment has apparently been so accepted by the Minnesota Supreme Court in upholding a sentence based on a guilty plea.  See State v. Brown, 606 N.W.2d 670, 673 n.3 (Minn. 2000).

 

[1] Appellant had a prior conviction of second-degree criminal sexual conduct in 1988.

[2] The term "supervised release" contained in the original Minn. Stat. § 609.346, subd. 5, dealing with the period of supervision requested for sex offenders was changed in 1993 to "conditional release."  1993 Minn. Laws ch. 326, art. 9, § 9.  The wording was changed so that the time period would not be confused with the supervised-release term that refers to "good time" normally served outside of prison at the end of a sentence.  Despite the change in the statutory language, the term "supervised release" was still being used by some courts when Nelson committed the offense.  See 1992 Minn. Laws ch. 571, art. 1,   § 25 (codified at Minn. Stat. § 609.346, subd. 5(a) (1992)).  Because appellant was convicted of a previous sex offense, conditional release was properly imposed for ten years, as opposed to the mandatory five years imposed when a defendant had no previous sex-offense convictions.  See Minn. Stat. § 609.346, subd. 5 (1994).

[3] The warrant of commitment is a form that, at the relevant time, did not include any space or box to reflect conditional release.