This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Richard Allen Koenig,



Filed August 21, 2001


Stoneburner, Judge


Dakota County District Court

File No. KX001511


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


James Backstrom, Dakota County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033-2392 (for respondent)


John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge, Klaphake, Judge, and Foley, Judge.*

U N P U B L I S H E D  O P I N I O N



Richard Allen Koenig moved to withdraw his plea of guilty to a charge of first-degree burglary because at the time of the plea he was not aware that he would have to register as a predatory sex offender under Minn. Stat. § 243.166 (2000).  The district court denied the motion and Koenig appeals.  Because the offender-registration requirement is a collateral consequence of a guilty plea, the district court did not abuse its discretion, and we affirm.



In February 2000, appellant Richard Allan Koenig broke into the home of his former girlfriend and sexually and physically assaulted her.  Respondent state charged Koenig with two alternative counts of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subds.1(c) and 1(e)(i) (1998); one count of burglary in violation of Minn. Stat. § 609.582, subd. 1(c) (1998); one count of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(3) (1998); and one count of interfering with an emergency call in violation of Minn. Stat. § 609.78, subd. 2 (1998).[1]  In July, Koenig pleaded guilty to burglary in the first degree and agreed to accept imposition of an aggravated sentence in exchange for dismissal of the remaining original charges.  After the district court accepted Koenig’s guilty plea, the state asked Koenig if he understood that although he was not pleading guilty to a sex-related offense, he would have to register as a predatory sex offender because he had been charged with first-degree criminal sexual conduct.[2]  Koenig responded that he did not know of the requirement and that although he was “okay” with the requirement that he give a sample of blood to be kept on file, he was “not okay” with “this registering in the neighborhood stuff.” 

            Prior to sentencing, Koenig moved to withdraw his guilty plea, arguing that his plea was not intelligent because he was unaware of the sex-offender-registration requirement.  Koenig also argued that abuse of medications prior to the plea hearing led to mental confusion.  The district court denied Koenig’s motion and proceeded with sentencing.  Koenig appeals, claiming that the district court abused its discretion in refusing to allow him to withdraw his guilty plea.



“A criminal defendant has no absolute right to withdraw a guilty plea once entered.”  Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997) (citation omitted).  We will reverse the district court’s decision not to permit withdrawal of a guilty plea only if the district court abused its discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998); see Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994) (recognizing decision whether to allow withdrawal of guilty plea is “generally left to the trial court”).  A district court may allow a defendant to withdraw a guilty plea if the defendant proves withdrawal is necessary to correct a “manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1; Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  “Manifest injustice” occurs when a guilty plea is not accurate, voluntary, and intelligent.  Alanis, 583 N.W.2d at 577; Perkins, 559 N.W.2d at 688.

Koenig asserts that his plea was not intelligent because he was unaware that he would have to register as a sex offender upon entering his plea of guilty.  In order for a guilty plea to be intelligent, the defendant must be aware of the direct consequences of his or her guilty plea.  Alanis, 583 N.W.2d at 578.  “[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.  Ignorance of direct consequences may entitle a defendant to withdraw a plea.  See id.  Conversely, ignorance of collateral consequences does not entitle the defendant to withdraw a guilty plea.  Id.  At issue, therefore, is whether Koenig’s mandatory sex-offender registration constitutes a direct or collateral consequence of his guilty plea. 

Recently, we resolved this question in Kaiser v. State, 621 N.W.2d 49 (Minn. App. 2001), review granted (Minn. Mar. 13, 2001).  In Kaiser, we held that sex-offender registration is a collateral, rather than a direct, consequence of a guilty plea, and we determined that the district court did not abuse its discretion in denying Kaiser’s motion to withdraw his guilty plea.  Id. at 54.  In reaching our decision, we reasoned that the sex-offender-registration requirement was more akin to a regulation than a punishment.  Id. at 53-54 (citation omitted).  The regulatory scheme of the offender-registration requirement is reflected in the fact that a defendant’s failure to register carries consequences wholly distinct from the guilty plea itself.  Id. at 54; cf. United States v. Jordan, 870 F.2d 1310, 1317 (7th Cir. 1989) (defining collateral consequence as that which has no effect upon the length or nature of the sentence imposed), cert. denied, 493 U.S. 831 (1989).  The consequences of a defendant’s failure to register are contingent on whether the prosecutor elects to take action against the defendant.  Kaiser, 621 N.W.2d at 54; cf. Sanchez v. United States, 572 F.2d 210, 211 (9th Cir. 1977) (identifying collateral consequence as one where its imposition “is controlled by an agency which operates beyond the direct authority of the trial judge”) (citation omitted).  We determined that because the consequences of failing to register as a sex offender were “not definite, immediate, and automatic” and that it functioned as a regulatory, rather than a punitive, measure, the offender-registration requirement was merely collateral to a guilty plea.  Kaiser, 621 N.W.2d at 54.  As a result, we ruled that a failure to inform the defendant of the registration requirement at the time of the plea did not entitle the defendant to withdraw his or her guilty plea.  Id. 

In Kaiser, we reviewed case law from other states and found that the majority hold that an offender-registration requirement is a collateral – not a direct – consequence.  See id. at 53 (citing numerous extra-jurisdictional cases where offender-registration requirement is collateral consequence).  Subsequent cases from other jurisdictions reinforce this conclusion.  See Alaska v. Martin, 17 P.3d 72, 73-74 (Alaska Ct. App. 2001) (holding that sex-offender registration requirement is collateral consequence); Delaware v. Rodriguez, 2001 WL 209863, *2 (Del. Super. Ct. 2001) (same); Nelson v. Florida, 780 So. 2d. 294, 295 (Fla. Dist. Ct. App. 2001) (same).  Koenig argues that because the supreme court has granted a petition for review, Kaiser is “not final and appellant is free to dispute the legitimacy of that decision.”  Notwithstanding the supreme court’s grant of review, however, Koenig has not presented authority to convince us that we should abandon our prior decision.  Based on the reasons articulated in Kaiser, we hold that Koenig’s mandatory registration as a sex offender merely constitutes a collateral consequence of his guilty plea.

In his pro se brief, Koenig asserts that he was misusing his medication ten days before he pleaded guilty, which resulted in confusion at the time of the plea.  As discussed earlier, Koenig bears the burden of showing that his guilty plea was not accurate, voluntary, and intelligent.  See Alanis, 583 N.W.2d at 577.  Although the record indicates that Koenig had been prescribed a medication for depression that lists mental confusion as a common side effect, Koenig fails to demonstrate that he was impaired because of his medication.  At the plea hearing, the district court asked Koenig if he was under the influence of any drugs or on any medication for a mental condition, and Koenig responded, “No.”  The district court noted that Koenig was asked several times in the plea hearing whether he understood issues and understood his rights, and he was able to either respond in the affirmative or ask supplemental questions, which were answered to clarify issues that he did not understand.  The district court also noted that, at the plea hearing, Koenig was oriented and gave every indication that he was alert, aware, intelligent, and in full possession of his faculties.  Neither attorney voiced any concern about Koenig’s mental state at the plea hearing.  The district court saw no signs of confusion or impairment and did not abuse its discretion by denying Koenig’s motion to withdraw his plea as not voluntarily or intelligently entered. 

In his pro se brief, Koenig also challenges the upward durational departure of his sentence.  An upward departure is within the sentencing court’s discretion if aggravating circumstances are present.  State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).  The pre-sentence investigation report recommended that Koenig receive a 102-month sentence, which represented a 50% upward departure supported by several aggravating factors, including particular cruelty to the victim, terrorizing the victim, excessive physical violence against the victim, extreme humiliation and degradation of the victim, violation of the victim’s zone of privacy, and multiple sexual penetrations and multiple forms of penetration.  See, e.g., State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981) (noting psychological terror constitutes an aggravating factor), overruled on other grounds by State v. Givens, 544 N.W.2d 774 (Minn. 1996); State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992) (acknowledging degradation of victim as an aggravating circumstance justifying upward departure), review denied (Minn. Apr. 13, 1992); State v. Mesich, 396 N.W.2d 46, 52 (Minn. App. 1986) (“Multiple penetrations alone will generally justify a double * * * departure.”), review denied (Minn. Jan. 2, 1987); State v. Saharath, 355 N.W.2d 312, 314 (Minn. App. 1984) (stating “[p]articular cruelty is a valid factor for departure purposes”); State v. Hines, 343 N.W.2d 869, 872 (Minn. App. 1984) (considering breach of victim’s zone of privacy an aggravating factor sufficient for upward departure).  This upward departure was also discussed and agreed to as part of the plea agreement at the plea hearing.  The district court listed the aggravating factors and described its reasons for departure at Koenig’s sentencing hearing.  Cf. State v. Martinez, 319 N.W.2d 699, 700 (Minn. 1982) (“[T]he court’s statements on the record at the time of sentencing adequately explained the court’s reasoning.”); State v. Frank, 416 N.W.2d 744, 748 (Minn. App. 1987) (upholding departure where record contained a statement outlining aggravating factors the judge considered severe enough to justify the departure), review denied (Minn. Feb. 8, 1988).  The district court did not abuse its discretion by imposing the agreed-on upward departure at sentencing.



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

[1] The state subsequently added charges of pattern of harassing conduct and conspiracy to tamper with a witness.  These two charges stemmed from threatening phone calls Koenig allegedly made to the victim while he was in jail awaiting disposition of his criminal sexual conduct and burglary charges.  Koenig pleaded guilty to the pattern-of-harassing-conduct charge, in addition to the burglary charge. 

[2] Because the state charged Koenig with criminal sexual conduct, his plea of guilty to the burglary charge required him to register as a predatory offender:


A person shall register under this section if:

(1) the person was charged with * * * any of the following, and convicted of * * * that offense or another offense arising out of the same set of circumstances:


* * *


(iii) criminal sexual conduct[.]


Minn. Stat. § 243.166, subd. 1 (a) (2000) (emphasis added).