State of Minnesota, Respondent, vs. Andrew Lee Walker, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-97-986

State of Minnesota,
Respondent,

vs.

Andrew Lee Walker,
Appellant.

Filed September 22, 1998
Affirmed and remanded
Huspeni, Judge

Hennepin County District Court
File No. 96039589

Bradford Colbert, Asst. State Public Defender, Heidi Viesturs, Certified Student Attorney, 875 Summit Ave., Room 371, St. Paul, MN 55105 (for appellant)

Hubert H. Humphrey III, Attorney General, 102 State Capitol, St. Paul, MN 55155; Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Asst. County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellant Andrew Lee Walker pleaded guilty to attempted third-degree criminal sexual conduct. See Minn. Stat. § 609.344, subd. 1(c). He was sentenced to a 24-month prison term. Six months after sentencing, the district court modified appellant's sentence, adding a five-year conditional release. Appellant argues the district court was without authority to modify the plea agreement. We affirm the addition of the five-year conditional release period, but remand for further proceedings on the plea agreement.

D E C I S I O N

Minn. R. Crim. P. 27.03, subd. 9, allows a court to correct "at any time" a sentence not authorized by law. Appellant was convicted under a statute that requires imposition of a conditional release. See Minn. Stat. § 609.346, subd. 5(a) (1996) (requiring five-year conditional release as part of sentence for violation of Minn. Stat. § 609.344). This conditional release term is mandatory and nonwaivable. State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998). Accordingly, the district court properly corrected appellant's sentence. See id. (affirming district court's correction of sentence to add same conditional release term). Neither is appellant entitled to specific performance of his plea agreement. See State v. Garcia, No. C4-97-1337, 1998 WL 378348 (Minn. July 9, 1998) (court cannot grant specific performance of sentence that it had no authority to impose).

We also reject appellant's argument that the correction of his sentence violated due process because he had a crystallized expectation of finality. That argument was rejected in both Humes and Garcia, in which cases appellants had served at least seven months of their sentences before the sentences were corrected. Appellant here served six months of his sentence before it was corrected, and he fails to overcome the controlling precedent established by Humes and Garcia.

Our analysis of the issues in this case cannot end, however, with our determination that the court properly corrected appellant's sentence. There was a mutual mistake involving all participants in this matter (appellant, respondent, and the court) as to the sentence that the court was required to impose. Pursuant to State v. DeZeler, 427 N.W.2d 231, 235 (Minn. 1988), this mutual mistake affords appellant the right to withdraw his guilty plea. We agree with appellant (as does respondent), that remand is necessary to enable appellant to exercise that right if he should desire to do so. Accord, Garcia, 1998 WL 378348, at *2.

Affirmed and remanded.