Bernard Collins, petitioner, Appellant, vs. State of Minnesota, Respondent.

Bernard Collins, petitioner, Appellant, vs. State of Minnesota, Respondent. A06-2242, Court of Appeals Unpublished Decision, November 27, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A06-2242
 
Bernard Collins, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed November 27, 2007

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. K2013783

 

John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
 
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
 
Susan Gaertner, Ramsey County Attorney, Jeanne Schleh, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Stoneburner, 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 denial of his petition for postconviction relief, arguing that because the five-year conditional-release term imposed at sentencing was not discussed in plea negotiations or when his plea was accepted, his sentence violated the plea agreement, entitling him to withdraw his plea or have his sentence modified.  Appellant also asserts that imposition of the conditional-release term extends his sentence in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because appellant did not object to imposition of the conditional-release term at sentencing and because Blakely does not apply, we affirm.

FACTS

Appellant Bernard Collins was charged with one count of first-degree criminal sexual conduct.  He pleaded guilty to the charge under an agreement that his sentence would be 18 months less than the presumptive sentence contained in the 1995 sentencing guidelines and that separate charges for interference with a 911 call would be dismissed.  The plea agreement stated that the statutory-maximum sentence for the crime charged was 30 years.

            At the plea hearing, appellant's attorney stated that he thought the relevant presumptive guideline sentence was 86 months, based on appellant's criminal history score of zero. The district court accepted the plea agreement and ordered a presentence investigation (PSI).  The PSI report confirmed that the applicable presumptive guideline sentence was 86 months and stated that "[Minn. Stat. §] 609.109, subd. 7 [2002] provides for a conditional release period of five years on this sentence."  The PSI report recommended that appellant be sentenced to an upward durational departure of 172 months plus the five-year conditional-release period.

            At the sentencing hearing, the district court noted that despite the recommendation in the PSI report, the district court would honor the plea agreement of 18 months less than the presumptive 86-month guidelines sentence.  The district court sentenced appellant to an executed 68 months, and stating that the conditional-release statutes applied, imposed a five-year conditional-release term.  Appellant did not question or challenge the conditional-release term at sentencing and did not appeal.  Three years later, appellant filed a pro se petition for postconviction relief asserting that the conditional-release provision should be set aside.  The district court denied the petition without a hearing and this appeal followed.

D E C I S I O N

A postconviction court's decision is reviewed under an abuse of discretion standard.  State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004), cert. denied, 543 U.S. 882 (2004).  The "scope of review on appeal from a postconviction court's denial of relief is limited to determining whether the court abused its discretion, including whether there was sufficient evidence to support the court's conclusions."  James v. State,699 N.W.2d 723, 728 (Minn. 2005).  "Determining what the parties agreed to in a plea bargain is a factual inquiry for the postconviction court to resolve."  Rhodes,675 N.W.2d at 326.  "But interpretation and enforcement of plea agreements involve issues of law that [this court] review[s] de novo."  Id.

            Appellant's petition for postconviction relief did not specifically assert that imposition of the conditional-release term violated his plea agreement and the district court did not address this argument, other than to dismiss all issues raised by appellant, except the Blakely issue, as without merit.  On appeal, relying on State v. Jumping Eagle, 620 N.W.2d 42, 44 (Minn. 2000), appellant argues that the district court violated his plea agreement by imposing a conditional-release term that was not contained in the original plea agreement or discussed at the plea hearing, and therefore conditional-release term extended his prison term beyond the agreed-upon sentence.  

Appellant's case is distinguishable from Jumping Eagle.  Jumping Eagle was sentenced after he pleaded guilty to first-degree criminal sexual conduct under an agreement that had a number of sentencing recommendations but did not discuss the mandatory conditional-release term.  620 N.W.2d at 43.  Execution of Jumping Eagle's sentence was stayed and he was placed on probation for 30 years.  Id. The mandatory conditional-release term was not mentioned at sentencing and was not imposed until his probation was revoked more than five years after sentencing.  Id.  Jumping Eagle moved to withdraw his guilty plea arguing that imposition of the conditional-release term violated the plea agreement.  Id.  This court affirmed the district court's denial of the motion but the supreme court reversed, concluding that because Jumping Eagle received both the maximum sentence agreed to under the plea agreement plus a term of conditional release, his sentence violated the plea agreement.  Id.at43, 44.   On remand, the district court was required to either permit Jumping Eagle to withdraw his plea, or modify the sentence so that the maximum period of incarceration, including the period of conditional release, did not exceed the upper limit in the plea agreement.  Id. at 45.

Appellant's case is more similar to Rhodes, in which the supreme court declined to extend the relief granted to Jumping Eagle to situations in which the mandatory conditional-release term was imposed at sentencing without objection, even though it was not mentioned in the plea agreement.  675 N.W.2d at 327 (noting that the conditional-release term was added years before Rhodes entered his plea, and stating that the postconviction court could infer from Rhodes' failure to object at the sentencing hearing that Rhodes understood that the conditional-release term would be a mandatory addition to his plea bargain).  We conclude that like Rhodes, appellant is deemed to have been aware of the law because it was enacted several years before he entered his plea in 2003, and that his failure to object to the imposition of the conditional-release term at sentencing negates his current claim that his plea was not intelligent and that imposition of the term violated the plea agreement. 

            Appellant also claims that the district court erred in denying his petition because imposition of the conditional-release term violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004) and Apprendi v. New Jersey,530 U.S. 446, 490, 120 S. Ct. 2348, 2362-63 (2006) (holding that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt).  We disagree.  The district court imposed only the term of conditional release that is part of the statutory maximum sentence for criminal-sexual conduct.   Minn. Stat. § 609.109, subd. 7.  Therefore, the district court correctly held that imposition of conditional release in this case does not implicate Apprendi or Blakely.

            In a pro se supplemental brief, appellant challenges the constitutionality of
Minn. Stat. § 609.109, subd. 7 (2004) (mandating imposition of conditional release for sex offenses and driving while impaired (DWI)), arguing that the statute violates the Equal Protection Clause of the U.S. Constitution.  Because appellant's argument was not raised in the district court and is not supported by authority, we decline to address it,[1] except to note that appellant has failed to demonstrate that persons convicted of crimes to which conditional release does not apply are similarly situated with those convicted of sex offenses or DWI. 

            Affirmed.

[1] See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that this court will generally not consider matters not argued to the district court); State v. Butcher,563 N.W.2d 776, 780 (Minn. App. 1997) (stating that issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).