State of Minnesota, Respondent, vs. Lonnie Kevin Clark, Appellant.

State of Minnesota, Respondent, vs. Lonnie Kevin Clark, Appellant. A04-1942, Court of Appeals Unpublished, December 20, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1942

 

State of Minnesota,

Respondent,

 

vs.

 

Lonnie Kevin Clark,

Appellant.

 

Filed December 20, 2005

Affirmed

Kalitowski, Judge

 

Dakota County District Court

File No. K5-01-289

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

Bradford Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Lonnie Kevin Clark withdrew his Alford plea to a third-degree criminal sexual conduct charge.  A jury subsequently found him guilty of criminal sexual conduct in the first degree and criminal sexual conduct in the third degree.  Appellant now challenges his conviction, arguing that (1) the district court erred by allowing him to withdraw his plea; (2) his conviction for first-degree criminal sexual conduct is invalid because the complaint only charged him with criminal sexual conduct in the third-degree; and (3) the district court committed plain error by failing to instruct the jury on the defense of mistake regarding the complainant's consent to sexual conduct.  We affirm.  

D E C I S I O N

I.

            On June 26, 2001, appellant entered an Alford plea to a charge of criminal sexual conduct in the third degree under Minn. Stat. § 609.344, subd. 1(c) (2000).  The district court stayed imposition of the presumptive 48-month sentence and placed appellant on probation for zero to ten years.  The court did not advise appellant of the five-year conditional-release period, which was statutorily mandated for sex offenders convicted under section 609.344.  See Minn. Stat. § 609.109, subd. 7 (2000).[1]  At his probation violation hearing on January 26, 2004, appellant asked to withdraw his guilty plea.  The prosecutor responded that it would be "pointless" for the state to object to appellant withdrawing his plea because "the current state of the case law in this area is that if the condition of release component was not made a part of the plea agreement, because it is mandatory, one of the first options the court has to explore is to afford the defendant the opportunity to withdraw his plea."  The court allowed appellant to withdraw his plea and set the case for jury trial.  Appellant argues that the district court erred by granting his request to withdraw his guilty plea.  We disagree. 

The district court has broad discretion to permit the withdrawal of a plea of guilty. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  This court will reverse only if it can fairly conclude that the district court abused its discretion.  Id.  A court may allow a criminal defendant to withdraw a plea of guilty "upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice."  Minn. R. Crim. P. 15.05, subd. 1.  A defendant may premise a motion to withdraw a plea on this basis either before or after sentencing.  See id.  A manifest injustice occurs if a defendant's plea is not accurate, or is involuntary, or is not intelligently entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998). 

The Minnesota Supreme Court has considered whether defendants should be allowed to withdraw guilty pleas because their plea agreements did not address a mandatory conditional-release term.  E.g., State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000); State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000); State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998).  Where a defendant is given an unqualified promise regarding a sentence that does not include a mandatory conditional-release term, the defendant "must be allowed to withdraw from the plea agreement if he so chooses."  Garcia, 582 N.W.2d at 882.  Specifically, a court may not amend a defendant's sentence to include a mistakenly excluded mandatory conditional-release term without allowing the defendant to withdraw his guilty plea if the resulting sentence "exceeds the upper limit of his court-accepted plea petition."  Jumping Eagle, 620 N.W.2d at 44-45. 

Here, when appellant entered his plea, the court offered and appellant received a stayed sentence of 48 months.  Under Minn. Stat. § 609.109, subd. 7, his sentence was required to include a five-year conditional-release period, but neither appellant's plea petition nor the court mentioned the conditional-release period.  If the five-year conditional-release term were added to appellant's sentence, he would have been subject to 60 months of incarceration plus the 48 months that could have been executed if the court revoked his probation.  Thus, the total period of incarceration would have exceeded his initial stayed sentence.  Because appellant's original sentence did not include the statutorily mandated conditional-release term, we conclude that the district court did not abuse its broad discretion by allowing appellant to withdraw his plea.

We reject appellant's assertion that the conditional-release period would not have applied because the court originally stayed the imposition of his sentence.  The defendant's sentence in Jumping Eagle was also stayed, and the supreme court nonetheless held that the mandatory conditional-release term could not be added at the probation revocation hearing without allowing the defendant to withdraw his guilty plea.  620 N.W.2d at 43, 45.  Like the defendant in Jumping Eagle, appellant's conditional-release term did not come up until his probation revocation hearing.  Therefore, the fact that the court stayed imposition of appellant's sentence at sentencing does not meaningfully distinguish it from similar cases allowing plea withdrawal.  

II.

Appellant contends that his conviction for criminal sexual conduct in the first degree should be reversed because that offense was not included in the complaint.  We disagree.

It is fundamental error for a defendant to be convicted of a crime with which he was not charged.  State v. Gisege, 561 N.W.2d 152, 159 (Minn. 1997).  When such fundamental error occurs, this court will examine the merits of appellant's claim under the doctrine of reversible error.  Id.  We will reverse the conviction only if the variance deprived appellant "of a substantial right, namely, the opportunity to prepare a defense to the charge against him."  Id. (quotation omitted).  "Ultimately, we must ask whether the erroneous charge denied the defendant the opportunity to prepare an adequate defense."  Id.  "When an error is one of fundamental law, . . . this court will review the issue even though it was not preserved below."  Id. at 158 (citing Minn. R. Crim. P. 26.03, subd. 18(3)).  Accordingly, we may review appellant's challenge even though he did not object to the first-degree charge at trial. 

Here, the complaint charged appellant with criminal sexual conduct in the third degree under Minn. Stat. § 609.344, subd. 1(c).  Appellant subsequently entered and withdrew his Alford plea to the third-degree criminal sexual conduct charge and the case was set for trial.  Respondent twice made a motion to amend the complaint to include a charge of criminal sexual conduct in the first degree.  The record does not indicate that the court ruled on those motions. 

Although the record is silent as to respondent's amendment, it is undisputed that the trial proceeded as though appellant had been charged with criminal sexual conduct in the first degree.  And appellant received notice of the state's intent to prove first-degree criminal sexual conduct in many instances.  The prosecutor explained in his opening statement that appellant was charged with two offenses, first-degree and third-degree criminal sexual conduct.  In appellant's opening statement, his attorney stated that the evidence would show that appellant was "not guilty of these charges," indicating that appellant, or at least his attorney, knew from the beginning of the trial that he faced more than one charge.  (Emphasis added.)  In his closing argument, the prosecutor again noted that appellant was charged with first-degree and third-degree criminal sexual conduct.  The court also instructed the jury on both the first-degree and third-degree criminal sexual conduct charges without objection. 

The difference between the charges of criminal sexual conduct in the first degree under Minn. Stat. § 609.342, subd. 1(e)(i) (2000), and criminal sexual conduct in the third degree under Minn. Stat. § 609.344, subd. 1(c), is that the first-degree charge requires personal injury to the complainant.  Here, both an emergency room nurse and a resident physician testified at trial concerning injuries to the complainant.  And appellant's attorney cross-examined both of them regarding those injuries.

At trial, appellant did not object to the repeated references to the first-degree criminal sexual conduct charge.  And on appeal, appellant fails to identify any way in which he would have proceeded differently had he been formally charged with criminal sexual conduct in the first degree.   

Appellant argues that the variance between the complaint and his conviction makes the conviction per se reversible, regardless of whether he was prejudiced.  But under Gisege, the variance alone is not enough to compel reversal.  Appellant received notice of the first-degree charge on multiple occasions, both before and during trial.  Appellant cross-examined the witnesses who testified as to the complainant's personal injury, the only element differentiating the first-degree charge from the third-degree charge.  Because appellant received ample notice of the first-degree charge and because he has failed to explain how he was prejudiced by the lack of a formal charge, we affirm the district court's conviction of criminal sexual conduct in the first degree.  

We reject appellant's argument that Gisege does not apply here because its holdingwas limited to cases involving invited error.  In Gisege, the defendant requested a jury instruction on a non-included offense and then challenged that instruction on appeal because it was not included in the indictment.  561 N.W.2d at 155.  The court held that the doctrine of invited error did not bar the defendant from challenging the instruction and the error, though fundamental, was not reversible.  Id. at 158-59.  But the court's reversible error analysis was not conditioned on the fact that the defendant requested the instruction.  See id.  Rather, the court reasoned that because the defendant requested the challenged instruction, he could not show that the charge hindered his ability to prepare an adequate defense.  Id. at 159. 

III.

 

            Appellant argues that the district court erred by failing to instruct the jury on a mistake of fact defense.  We disagree.

"We evaluate the erroneous omission of a jury instruction under a harmless error analysis."  State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004).  In general, a party waives the right to appeal a jury instruction by failing to object to it at trial.  Minn. R. Crim. P. 26.03, subd. 18(3); State v. Glowacki, 630 N.W.2d 392, 398 (Minn. 2001).  Here, appellant made no objections to the jury instructions.  Because appellant did not object to the jury instructions at trial, this court determines whether the instructions constituted plain error.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Minn. R. Crim. P. 31.02).  Under a plain error analysis, appellant must show:  (1) error; (2) that was plain; and (3) that affected substantial rights.  Id.  If those three prongs are met, this court may correct error only if it seriously affects the fairness and integrity of the judicial proceedings.  See id.

Under the first prong of the Griller plain error test, we determine whether the district court's instructions were in error.  Id.  Appellant asserts that the district court erred by failing to instruct the jury on a mistake of fact defense.  He argues that the defense would apply because, according to appellant's statements to the police and to the polygraph examiner, he believed in good faith that complainant consented to sexual intercourse.  To support his argument, appellant relies on People v. Mayberry, 542 P.2d 1337 (Cal. 1975).  In Mayberry, the California Supreme Court held that where a defendant "entertains a reasonable and bona fide belief that a prosecutrix voluntarily consented to accompany him and to engage in sexual intercourse," then the defendant may be entitled to a jury instruction on a mistake of fact defense.  542 P.2d at 1345-46. 

But Minnesota law does not recognize a defendant's good faith and reasonable belief in the victim's consent as a defense to either first-degree or third-degree criminal sexual conduct.  See Minn. Stat. §§ 609.342, subd. 1 (elements of criminal sexual conduct in the first degree), 609.344, subd. 1 (elements of criminal sexual conduct in the third degree), 609.341, subd. 4(a) (2000) (definition of consent).  Because Minnesota has not adopted a mistake of fact defense as to a victim's consent and because this court is not bound by the decisions of the California Supreme Court, we conclude that the district court did not plainly err by failing to instruct the jury on a mistake of fact defense. 

            Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] In its 2005 session, the Minnesota legislature repealed Minn. Stat. § 609.109, subd. 7.  2005 Minn. Laws ch. 136, art. 2, § 23, at 933.  Because the change only applies to crimes committed on or after August 1, 2005, it does not affect the analysis here.  See id.