This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota
Reversed and remanded
Hennepin County District Court
File No. 97099945
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Beverly J. Benson, Assistant Hennepin County Attorney, C2000 Government Center, Minneapolis, MN 55487 (for respondent).
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Appellant was charged with one count of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct. In exchange for his guilty plea to a charge of promotion of prostitution by fraud, he received a stayed sentence, and the criminal-sexual-conduct charges were dropped. The district court required appellant to register as a sex offender, and, as part of the terms of probation, ordered appellant to undergo sex-offender treatment. Appellant was charged with violating the terms of his probation. He then moved to withdraw his guilty plea. The district court denied his motion to withdraw his plea, revoked his probation, and executed his sentence. Appellant claims the district court erred in (a) requiring him to register as a sex offender; (b) denying his motion to withdraw the guilty plea; and (b) revoking his probation. We reverse and remand.
On November 6, 1997, appellant Kevin Johnson was charged with first-degree criminal sexual conduct and third-degree criminal sexual conduct under Minn. Stat. §§ 609.342, subd. 1(d), 609.344, subd. 1(c) (1996). According to the complaint, on October 26, 1997, appellant held a large metal pipe to the head of T.H.S. and forced her to have sex with him, threatening to hurt or kill her if she resisted. Appellant denied the allegations, claiming T.H.S. falsely accused him of rape because he did not pay her money he had promised her.
On February 3, 1998, appellant pleaded guilty to a charge of promotion of prostitution by fraud under Minn. Stat. § 609.322, subd. 2(1) (1996). In exchange, the state dismissed the criminal-sexual-conduct charges. The terms of the negotiation were that appellant would receive probation and a stayed sentence. Other terms and conditions were left up to the court.
As a basis for the guilty plea, appellant admitted that he and T.H.S. had agreed to carry out a prostitution scam on the weekend of October 26, 1997. Under the plan, appellant presented T.H.S. as a prostitute under his control, and they convinced people she would have sex with them for money. Appellant took money from the customers, but T.H.S. never had sex with them. The plan was to divide the proceeds. Appellant never paid T.H.S. her share.
Appellant was sentenced on March 3, 1998. The district court rejected appellant’s argument that his conviction did not “arise from the same set of circumstances” as the original criminal-sexual-conduct charges and ordered appellant to register as a sex offender under Minn. Stat. § 243.166, subd. 1(a)(1)(iii) (1996). As part of the plea agreement, appellant received a stayed sentence of 60 months, with five years’ probation. As terms and conditions of probation, the court ordered appellant to follow all probation department rules, remain law abiding, serve 180 days in the workhouse, have no contact with T.H.S., and successfully complete a sex-offender treatment program.
Appellant initially complied with the terms of his probation. Then, in November 1998, he was dropped from the sex-offender treatment program for having missed four consecutive classes. He also twice failed to contact his probation officer and missed one probation appointment.
Because of these violations, the state moved to revoke appellant’s probation. Appellant denied the allegations and moved to withdraw his guilty plea. He claimed his plea was invalid for ineffective assistance of counsel and because he was unaware of the sex-offender registration requirement. At the hearing, appellant testified he would not have pleaded guilty had he known it would require him to register.
On April 20, 1999, the court denied appellant’s motion to withdraw, finding (a) appellant knew at sentencing of his duty to register but chose not to seek withdrawal of his guilty plea; (b) the duty to register was a collateral, rather than a direct, consequence of pleading guilty; (c) appellant’s counsel was not ineffective; (d) appellant’s plea was valid; (e) appellant violated his probation by being terminated from the sex-offender program and by failing to keep in contact with his probation officer.
On April 22, 1999, the district court denied appellant’s motion to reconsider, concluded confinement was necessary, revoked probation, and executed the sentence.
Appellant argues the district court erred in finding that his conviction arose from the same set of circumstances as the original criminal-sexual-conduct charges and, therefore, requiring him to register as a sex offender. Minn. Stat. § 243.166, subd. 1(a)(1)(iii) (1996). We agree.
In Boutin v. LaFleur a defendant argued with his girlfriend and pushed her into a wall, causing a serious injury to the back of her head. Boutin v. LaFleur, 591 N.W.2d 711, 713 (Minn. 1999), cert. denied, 120 S. Ct. 417 (1999). A short while later, the victim alleged, the defendant forced her to have sex with him. Id. The victim alleged the forced sex was repeated a few hours later. Id. The defendant admitted to police that he had had sex with his girlfriend, stating “[s]he said she didn’t want to and I still did it I guess.” Id. The defendant claimed his girlfriend frequently said she did not want to have sex but often cooperated, as on the night in question. Id.
The defendant in Boutin was charged with two counts of third-degree criminal sexual conduct, one count of third-degree assault, and one count of fifth-degree assault. Id. The girlfriend recanted the rape allegations before trial, and the defendant agreed to plead guilty to third-degree assault; the remaining charges were dismissed. Id. at 713-14. The defendant brought an action challenging the requirement that he register as a sex offender under Minn. Stat. § 243.166, and the supreme court upheld the requirement, finding that the assault conviction arose from the same set of circumstances as the original criminal-sexual-conduct charges. Id. at 714-16.
Unlike Boutin, in this case the conviction did not arise from the same circumstances as the original charge. The principle conduct involved in the original charges is forced sexual penetration. The provision under which appellant was charged with first-degree criminal sexual conduct applies to sexual penetration where
the actor is armed with a dangerous weapon or any article used or fashioned in a manner to lead the complainant to reasonably believe it to be a dangerous weapon and uses or threatens to use the weapon or article to cause the complainant to submit.
Minn. Stat. § 609.342, subd. 1(d) (1996).
The provision under which appellant was charged with third-degree criminal sexual conduct applies to sexual contact where “the actor uses force or coercion to accomplish the penetration.” Minn. Stat. § 609.344, subd. 1(c) (1996).
The original complaint alleged conduct conforming to what is prohibited under these two statutes. But appellant pleaded guilty to and what he stands convicted of are entirely different. The original complaint, which contains counts that would require registration as a sex offender, makes no reference to “a prostitution scam.” But promotion of prostitution by fraud is the only crime for which appellant stands convicted. The record shows there was no reference to the prostitution scam until the time of the guilty plea. At the guilty plea, appellant admitted to the essential elements of the prostitution scam only. He did not admit to any sexual contact with T.H.S.
According to the prostitution statute, one who intentionally “[s]olicits or induces an individual to practice prostitution by means of trick, fraud, or deceit” is guilty of solicitation, inducement and promotion of prostitution. Minn. Stat. § 609.322, subd. 2(1) (1996). The forbidden conduct involved in promotion of prostitution by fraud is intentionally tricking another to act as a prostitute. There is no mention in Minn. Stat. § 609.322, subd. 2(1) of sexual contact or penetration being any part of the crime. The conduct appellant pleaded guilty to is not sufficiently related to the criminal-sexual-conduct charges to justify requiring appellant to register as a sex offender. The list of crimes involving registration as a sex offender is extensively detailed, and Minn. Stat. § 609.322, subd. 2(1), is not on the list. The district court erred when it found appellant’s conviction arose from the same circumstances as the original charges. On this basis, we conclude that the denial of defendant's motion to withdraw his guilty plea was erroneous.
The state argues vigorously that registration as a sex offender is a “collateral,” rather than a “direct,” consequence to a guilty plea and, therefore, failure to inform a defendant about registration, or requiring him to register, as here, cannot be the basis for withdrawing a guilty plea. See Minn. R. Crim. P. 15.05, subd. 1 (stating withdrawal of guilty plea is allowed upon timely motion where defendant proves withdrawal is necessary to correct manifest injustice); Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998) (holding manifest injustice exists when defendant can show he was not informed of direct consequences of pleading guilty).
Alanis and its progeny held that the threat, even imminent, of deportation by the Immigration and Naturalization Service (INS) is a collateral, not a direct, consequence of pleading guilty to the commission of a crime and that ignorance of the possibility of deportation is not a basis for withdrawing an otherwise voluntary plea. “[D]irect consequences are those which flow definitely, immediately, and automatically from the guilty plea—the maximum sentence and any fine to be imposed.” Id.
We are also mindful of our recent case describing the loss of privileges to own weapons, when one has a felony, as a collateral consequence, not a direct consequence and, therefore, holding that claimed ignorance of that deprivation cannot be used to set aside an otherwise voluntary plea of guilty. See State v. Rodriguez, 590 N.W.2d 823, 825 (Minn. App. 1999) (holding loss of right to possess firearm is collateral consequence), review denied (Minn. May 26, 1999). But in examining deportation and loss of firearm privileges, it is abundantly clear that they are called collateral because those consequences are not imposed by the Minnesota district court judge.
The district court does not control deportation. The INS may or may not decide to deport and may or may not do it in a reasonable period of time. An order by a Minnesota district court judge that the defendant be deported, or not be deported, would not control what the INS does. As the court stated in Alanis, “Before a resident alien * * * can be deported, the INS must exercise its discretion to commence deportation proceedings * * *.” 583 N.W.2d at 578.
The same is true on loss of gun ownership privileges upon commission of a state felony. See 18 U.S.C. § 922(g)(1) (1994) (prohibiting persons convicted of felony in any jurisdiction from possession firearms). The federal government has the right to act against a state defendant found in possession of a gun, or not act. The federal government retains the right to act or not act on its own personal timetable. As part of sentencing, an order by a Minnesota district court judge that the defendant lose the privilege of gun ownership, or continue to have the privilege of gun ownership, would not be binding on the federal government.
State district court judges neither deport nor handle federal felon-in-possession issues. These consequences, although serious, are called collateral because the sentencing district court judge does not control what the outcome will be. That is not our case here. The district court judge directly imposed the requirement of registration as a sex offender. Thus, based on our prior finding that the defendant was not convicted of a crime requiring registration, the district court erred.
Further, we note that by the district court's own legal conclusion that sex offender registration was called for because the conviction arose from the same circumstances as the original charges, the district court, (if it was correct in this determination), substantially erred in imposing the probationary requirement that appellant complete sex offender treatment. Before a district court can impose the requirement that a defendant complete sex offender treatment, the statute mandates that a sex offender assessment be ordered:
When a person is convicted of a violation of section 609.342; 609.343; 609.344; 609.345; 609.3451; 609.746, subdivision 1; 609.79; or 617.23, or another offense arising out of a charge based on one or more of those sections, the court shall order an independent professional assessment of the offender’s need for sex offender treatment. The court may waive the assessment if: (1) the sentencing guidelines provide a presumptive prison sentence for the offender, or (2) an adequate assessment was conducted prior to the conviction. An assessor providing an assessment for the court must be experienced in the evaluation and treatment of sex offenders.
Minn. Stat. § 609.3452, subd. 1 (1996).
Neither of the two exceptions applies. The court can waive the assessment if the sentencing guidelines provide a presumptive prison sentence for the offender. Here, the presumptive sentence for this level III crime, including appellant’s criminal history score, was a stay of execution. See Minn. Sent. Guidelines IV (stating level III offenses have presumptive stayed sentence), V (listing violation of Minn. Stat. § 609.352, subd. 2, as level III offense). The other exception whereby the court may waive the assessment when “an assessment was conducted prior to the conviction.” The record discloses that no such assessment was conducted. Thus, under the district court's own rationale for requiring sex offender registration, it had to order an assessment before ordering sex offender treatment. Since assessment is mandated, if, as the judge thought, the facts fit the statute, then the finding of a violation of probation by not complying with treatment is tainted. The statute provides:
Subd. 3. Treatment order. If the assessment indicates that the offender is in need of and amenable to sex offender treatment, the court shall include in the sentence a requirement that the offender undergo treatment, unless the court sentences the offender to prison.
Minn. Stat. § 609.3452, subd. 3 (1996).
We reverse and remand to the district court to allow appellant the option of withdrawing his plea of guilty and standing trial on the original charges. If the “prostitution scam” statute turns out to be the basis for a new negotiated plea, registration as a sex offender cannot be required. If treatment as a sex offender is contemplated, a sex offender assessment would be in order before imposing sex offender treatment.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art VI, § 10.
 The relevant portion of the registration statute provides:
(a) A person shall register under this section if:
(1) the person was charged with or petitioned for a felony violation of or attempt to violate any of the following, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances: * * *
(iii) criminal sexual conduct under section 609.342; 609.343; 609.344; or 609.345[.]
Minn. Stat. § 243.166, subd. 1 (1996).
 The following crimes require registration: murder committed in the course of first or second-degree criminal sexual conduct under Minn. Stat. § 609.185(2) (1996); kidnapping involving a minor victim under Minn. Stat. § 609.25 (1996); felony criminal sexual conduct under Minn. Stat. §§ 609.342, 609.343, 609.344, 609.345 (1996); child pornography under Minn. Stat. §§ 617.246, 617.247 (1996); under certain conditions, a predatory crime under Minn. Stat. § 609.1352 (1996); violations of federal law proscribing any of this conduct; and some out-of-state convictions for similar conduct. Minn. Stat. § 243.166, subd. 1.
 We note that Minn. Stat. § 609.332, subd. 2 (1996), was replaced in 1998 after appellant’s conviction. See 1998 Minn. Laws ch. 367, art. 2, § 33-34 (repealing section 609.322, subdivision 2, and directing August 1, 1998, effective date). We have, therefore, applied the 1998 Sentencing Guidelines.
 We acknowledge that this issue was not directly contested before the district court and that neither party discussed it in briefs or at oral argument, but we address it here in the interests of justice. Given that sex-offender treatment was imposed in tandem with the registration requirement, our consideration of this issue does not unfairly surprise any party to this appeal. See State v. Clow, 600 N.W.2d 724, 726 (Minn. App. 1999) (holding appellate court has discretion to decide issues not raised below when doing so would not unfairly surprise party to appeal) (review denied (Minn. Oct. 21, 1999); see also State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (stating it is appellate courts’ responsibility to decide cases in accordance with law, notwithstanding counsel’s failure to specify issues).
 Because of our rulings on the other issues, we need not address appellant’s claim of error with respect to the probation revocation.