This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






State of Minnesota,





Nicholas Thomas Bettinger,



Filed March 20, 2001


Halbrooks, Judge


Dakota County District Court

File No. K5971565



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


James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for appellant)


John M. Stuart, State Public Defender, Scott G. Swanson, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for respondent)



            Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            This appeal is from an order granting a postconviction petition and allowing respondent to withdraw his plea of guilty to second-degree criminal sexual conduct.  The appeal was stayed pending the supreme court’s decision in State v. Jumping Eagle, 620 N.W.2d 42 (Minn. 2000).  The stay was vacated after the release of that opinion.  Because we conclude the record does not support the postconviction court’s order, we reverse.


            Bettinger was arrested following an interview in which he admitted that he sexually assaulted a young girl.  He was charged by formal complaint with second-degree criminal sexual conduct.

            At the omnibus hearing, Bettinger, who was represented by a public defender, filed a petition to enter a plea of guilty based on a plea agreement negotiated by his attorney and the assistant county attorney.  The plea agreement provided for a stay of imposition and 25 years of probation, with various conditions of probation, including completion of sex-offender treatment.  This agreement providing for a stay of imposition was stated on the record before Bettinger entered his guilty plea.  The district court then issued a “partial” sentencing order providing for a stay of imposition.  The court left open the possibility that other conditions of probation would be added later.  The court also ordered a presentence investigation.

            The sentencing hearing occurred nearly two months after the guilty plea was entered and followed allegations that Bettinger had violated his conditions of release.  The court, citing the PSI and “disposition discussions,” pronounced a 21-month sentence, with execution stayed.  The court also stayed a one-year probationary jail term.

            Bettinger never entered a sex-offender treatment program despite numerous attempts by the Dakota County probation staff to locate an appropriate program and arrange for funding.  Eventually, the probation staff recommended that Bettinger’s probation be revoked because he was unwilling to participate in the sex-offender treatment required by his sentence.  A contested revocation hearing was held and the district court revoked Bettinger’s probation and executed the 21-month sentence.  It also added the five-year conditional release term mandated by Minn. Stat. § 609.346, subd. 5 (1996) (recodified as Minn. Stat. § 609.109, subd. 7 (1998)).

            Bettinger later filed a postconviction petition, claiming the failure to inform him that the conditional-release period would be imposed if his probation was revoked invalidated the plea.  The district court granted the petition without holding an evidentiary hearing, after the parties agreed there were no material facts in dispute.  The state filed this appeal.


            Our review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  The postconviction court’s decision will not be disturbed absent an abuse of discretion.  Id.  Interpretation and enforcement of plea agreements, however, present issues of law, which are reviewed de novo.  See State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).

            A guilty plea, to be valid, must be accurate, voluntary, and intelligent.  State .v Trott, 338 N.W.2d 248, 251 (Minn. 1983).  The voluntariness requirement ensures that the plea is not made in response to improper inducements.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  A guilty plea is invalid if induced by a promise that cannot be fulfilled.  State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998).  The supreme court held in Garcia that a defendant who was promised an 81-month sentence that did not include a conditional-release term was entitled to withdraw his guilty plea when the mandatory conditional-release term was added later.  Id.

            The postconviction court concluded that, under Garcia, Bettinger was entitled to withdraw his guilty plea because the conditional-release term, not mentioned in the plea agreement, was later added to his sentence.

The supreme court has issued two opinions on this issue since the postconviction order was filed.  In Brown, 606 N.W.2d at 672, the defendant pleaded guilty to first-degree criminal sexual conduct under a plea agreement providing for a stayed sentence if he entered and completed a sex-offender treatment program.  The agreement also provided that if the defendant was not accepted into a treatment program he would receive a presumptive sentence, but if he entered but failed to complete a treatment program, he would receive a double durational departure.  Id.  The plea agreement did not mention the conditional-release term, which was added much later, after a revocation of probation.  Id. at 672-73.

            This court in Brown, in an opinion relied on by the postconviction court in this case, but later reversed, held that the defendant was entitled to withdraw his guilty plea.  The supreme court disagreed, concluding, based on the record, that

it was the promise of an opportunity for probation and rehabilitation, and not the presumptive executed sentence, that induced Brown’s plea.


Id. at 675.

In the most recent supreme court case on this issue, the defendant had entered into a plea agreement contemplating a stayed sentence, but later violated probation.  State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000).  The court held that the conditional-release term could not be added at the probation revocation without allowing the defendant to withdraw the guilty plea because the resulting sentence “exceeds the upper limit of his court-accepted plea petition.”  Id. at 44-45.  The plea agreement in Jumping Eagle was contingent, as was the agreement in Brown.  But in Brown, the sentence the defendant ended up with, after the conditional release term was added, was less than the sentence duration he had bargained for, under one of the contingencies.  See Brown, 606 N.W.2d at 675.  In Jumping Eagle, it was more than “the upper limit of [defendant’s] court-accepted plea petition.”  620 N.W.2d at 44.

            This appeal does not involve a contingent plea agreement.  Thus, we address the basic issue of what promises were made in the plea agreement that induced Bettinger to plead guilty.  See Brown, 606 N.W.2d at 674.  We acknowledge that determining what the parties agreed to is normally an issue of fact to be resolved by the district court.  Id.  But here the postconviction court did not hold an evidentiary hearing or resolve any factual dispute.  The interpretation of the agreement, therefore, is an issue of law subject to de novo review.  Id.

            The plea agreement included a straightforward agreement to a stay of imposition, with no duration mentioned.  The presumptive duration was 21 months, but the PSI had not yet been prepared at the time the plea was entered, so it is unclear whether the parties knew the presumptive duration.  The court at sentencing imposed a 21-month sentence and stayed execution.  But this was not part of the plea agreement, and there is no indication the parties entered into a new agreement between the guilty plea hearing and sentencing. 

            Thus, Bettinger pleaded guilty under a plea agreement calling for a stay of imposition.  Because there was no discussion of the duration of any sentence that might later be imposed, it appears that Bettinger’s plea was induced solely by the opportunity to avoid prison and receive a stayed sentence.  Although the parties may have been aware of the presumptive sentence, and may even have discussed it, that is generally true.  Awareness of the presumptive sentence duration does not make that duration an inducement to plead guilty when the plea agreement calls for a stay of imposition under which a defendant may expect to serve no time in prison.  Under Brown, and the discussion of Brown in Jumping Eagle, Bettinger is not entitled to withdraw his guilty plea because the later addition of a conditional-release term did not alter any agreed-upon sentence duration.



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