This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-532

 

 

State of Minnesota,

Respondent,

 

vs.

 

Sean Patrick Brinkman,

Appellant.

 

Filed December 4, 2001

Affirmed

Lansing, Judge

 

Anoka County District Court

File No. K6966776

 

 

Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106; and

 

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, Minnesota 55303 (for respondent)

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D  O P I N I O N

LANSING, Judge 

Sean Brinkman appeals from the district court's denial of his postconviction petition to vacate a five-year period of conditional release imposed on his sentence for criminal sexual conduct.  He also appeals from the denial of his alternative request for plea withdrawal.  Because the sentencing transcript establishes that the district court incorporated the conditional-release term into Brinkman's original sentence, the postconviction court properly rejected Brinkman's claims that the conditional release violated due process, breached his plea agreement, and subjected him to double jeopardy.  We affirm.

F A C T S

In May 1996, Sean Brinkman was charged with kidnapping in violation of Minn. Stat. § 609.25, subds. 1(2) and 2(2) (1996), and second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(c) (1996).  In November 1996, Brinkman entered a negotiated plea of guilty to both charges.  The plea agreement provided that Brinkman would plead guilty to second-degree criminal sexual conduct with the understanding that he would receive a 48-month sentence and that he would plead guilty to kidnapping with the understanding that he would receive a stayed 48-month consecutive sentence with up to 40 years probation.  The state also agreed not to request that Brinkman be sentenced as a patterned sex offender.

The district court accepted the plea and continued the sentencing for a presentence investigation.  The presentence investigation report recommended a sentence on both the kidnapping and the criminal-sexual-conduct charges that corresponded with the plea agreement and specifically stated "[a]ccording to Minn. Stat. § 609.346, subd. 5, the court shall provide that after a person has completed the sentence imposed, the Commissioner of Corrections shall place the person on conditional release for five years."  The report also noted that under section 609.346, subdivision 5, the conditions of release may include sex-offender treatment.

The district court sentenced Brinkman in January 1997.  The court imposed sentence consistent with the plea agreement.  In open court, with Brinkman present, the prosecutor requested the court to "impose the conditional release" on the criminal-sexual-conduct offense.  Brinkman's attorney told the court that he and the prosecutor had discussed the five-year "parole" required under the "new law" and had agreed that it would be concurrent with the probation period on the kidnapping.  The prosecutor acknowledged the agreement and stated, "The statute would mandate the five-year supervised period when he's finished with his sentence."  The court accepted the agreement and pronounced sentence.  In listing the terms of the sentence  the  court stated, "Further, pursuant to Minnesota Statute 609.346, subdivision 5, it’s a specific condition of this sentence that you complete sex-offender treatment as directed during the period of supervised release."

The commitment order similarly provided for sex-offender treatment during supervised release but did not specifically refer to Minn. Stat. § 609.346.  In May 2000, shortly before Brinkman completed his criminal-sexual-conduct sentence, the district court  issued  an  ex parte  order  specifically  imposing  the five-year conditional  release under Minn. Stat. § 609.346, subd. 5 (now codified as amended at Minn. Stat. § 609.109, subd. 7 (Supp. 2001)).

Brinkman filed a postconviction-relief petition requesting that the conditional-release term be vacated.  Brinkman alleged that the imposition of the conditional release violated his due process rights, because it was imposed without notice or an opportunity to be heard and because it impermissibly violated his expectation of finality in the earlier sentence.  Alternatively, he alleged that he should be permitted to withdraw his plea because the conditional-release period breached the plea agreement on sentence length and eroded the "knowing and intelligent" basis for his plea.  Brinkman submitted a personal affidavit stating that his attorney did not tell him that he could be subject to a five-year conditional release.  The attorney who represented Brinkman at this plea hearing also submitted an affidavit buttressing Brinkman's statement.

The district court issued an order and memorandum denying Brinkman's petition for postconviction relief.  On appeal Brinkman contends that the postconviction court abused its discretion when it failed to hold an evidentiary hearing and to grant postconviction relief on three claims:  (1) violation of his rights against double jeopardy, (2) violation of his due process rights, and (3) breach of his plea agreement.

D E C I S I O N

We review decisions of a postconviction court for abuse of discretion.  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999).  A postconviction court may deny an evidentiary hearing when the petition, files, and records of the proceeding conclusively show that the petitioner is entitled to no relief.  Minn. Stat. § 590.04, subd. 1 (2000).  An evidentiary hearing is required when a material issue of fact is disputed.  State ex rel Roy v. Tahash, 277 Minn. 238, 244-45, 152 N.W.2d 301, 305-06 (Minn. 1967).  To place material facts in dispute, the petitioner must allege facts that, if proven, would entitle the petitioner to the requested relief.  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).

I

            The imposition of conditional-release terms for criminal-sexual-conduct convictions, including convictions under Minn. Stat. § 609.343, is mandatory and nonwaivable.  Minn. Stat. § 609.346, subd. 5 (1996) (now codified as amended at Minn. Stat § 609.109, subd. 7 (Supp. 2001)); State v. Humes, 581 N.W.2d 317, 319-20 (Minn. 1998).  If Brinkman's original sentence for second-degree criminal sexual conduct imposed the mandatory five-year conditional release, it was an authorized sentence; if it did not impose the conditional release, it was unauthorized.  Humes, 581 N.W.2d at 320.  Correcting an unauthorized sentence does not violate the guarantees against double jeopardy, even when the sentence is increased, because a sentence, unlike an acquittal, does not have the quality of constitutional finality.  State v. Calmes, 632 N.W.2d 641, 649 (Minn. 2001); Humes, 581 N.W.2d at 320.

            Significantly, the supreme court has held that the addition of the mandatory conditional release does not impose a multiple punishment, but is "simply the single punishment that was mandatory at the time of sentencing."  Calmes, 632 N.W.2d at 649. Thus, whether the May 2000 notice of the conditional-release period was merely a ratification of the original sentence or  a  new condition, the  postconviction court did not abuse its discretion in concluding as a matter of law that it did not violate Brinkman's constitutional guarantees against double jeopardy.

II

Brinkman asserts that his due process rights were violated in two ways:  first, by the court amending his sentence without providing notice and an opportunity to be heard, and second, by enhancing his sentence after he had an expectation of finality in a 48-month sentence for second-degree criminal sexual conduct.

Brinkman's first due process argument relies on his attestation that he had no notice of the conditional release until he had completed serving his criminal-sexual-conduct sentence.  The district court, relying on the sentencing transcript, found that the attorneys discussed on the record the effects of Minn. Stat. § 609.346, subd. 5, and agreed that it would run concurrently with Brinkman's probation for his kidnapping conviction.  The postconviction court reasoned that Brinkman had imputed and actual knowledge of the conditional-release term at the sentencing hearing and thus, had an opportunity to be heard.  See Calmes, 632 N.W.2d at 648 (discussing circumstances under which knowledge of mandatory sentencing condition may be imputed to defendant); Shern v. State, 635 N.W.2d 96, 99 (Minn. App. 2001) (recognizing defendant's right to notice and to request hearing on sentence correction).

We agree with the postconviction court.  The five-year conditional release was specifically outlined in the presentence investigation report, it was part of the prosecutor's request for sentencing, it was discussed by Brinkman's attorney and the prosecutor, Brinkman's attorney stated that he and the prosecutor had agreed that it would be concurrent with the probation on the kidnapping conviction, and the court specifically referred to it by citing the statute when pronouncing the sentence, and by imposing sex-offender treatment permitted under section 609.346, subd. 5 (conditional-release provision).  All of this took place in open court with the defendant present.  The postconviction court did not abuse its discretion in concluding that Brinkman had notice and an opportunity to be heard.  Further, the supreme court has noted that a defendant's right to a hearing upon revocation of conditional release allays due process concerns that a defendant did not have an opportunity to be heard when the conditional release was imposed.  Calmes, 632 N.W.2d at 650, n.6.

Brinkman's second due process argument asserts an expectation in the finality of the sentence and the violation of that expectation when the state imposed the conditional release only a few days before he had completed his criminal-sexual-conduct sentence.  Accepting the veracity of Brinkman's attestation that he did not know of the conditional release, his expectation that he would not have a conditional-release period must still be reasonable.  See Calmes, 632 N.W.2d at 649 (expectation of finality not reasonable in light of supervised-release statutes, conditional-release statute, and caselaw). 

In determining whether or not Brinkman's expectation was reasonable, we consider that the five-year conditional release was set out in the presentence investigation report, the prosecutor specifically referred to it at the sentencing hearing as one of his requested sentencing terms, Brinkman's attorney and the prosecutor discussed it at the sentencing hearing and Brinkman's attorney stated in their agreement that it would run concurrently with probation on the kidnapping conviction, the court specifically referred to section 609.346, subdivision 5, which is the mandatory conditional-release provision, and the court imposed a sex-offender treatment program under the authority of that provision.

The presentence investigation report explicitly states that Brinkman's criminal-sexual-conduct violation triggers the five-year conditional release period.  See Minn. R. Crim. P. 27.03, subd. 1(C) (requiring court to provide a copy of presentence investigation report to defendant or defense counsel).  Neither Brinkman nor his attorney denies receiving the report and the report is specifically referred to at the sentencing hearing.  Brinkman was present at the sentencing hearing when the conditional release was discussed and when the judge referred to the conditional-release statute in sentencing.  On this record Brinkman has not demonstrated a reasonable expectation that he would be exempt from the mandatory conditional release.

III

Brinkman contends that the district court abused its discretion by not allowing him to withdraw his plea because the conditional-release period breached his plea agreement by extending the duration of the sentence beyond that to which he had agreed.  The district court found that the plea agreement had not been violated because Brinkman's attorney and the prosecutor incorporated the conditional-release term into the plea agreement at the sentencing hearing.

The record supports the district court's finding.  Brinkman's attorney stated that "we did agree to the consecutive sentencing," but the "five-years after he's released" on this parole "under the new law" would be concurrent with the probation.  The prosecutor referred to the five-year period as a "supervised period" and the district court also referred to "the period of supervised release" instead of using the term conditional release as stated in section 609.346, subdivision 5.  This confusion in terminology is attributable to the statutory change from the term "supervised" release to "conditional" release.  See Minn. Stat. § 609.346, subd. 5 (1992) (requiring "supervised release" term); compare Minn. Stat. § 609.346, subd. 5 (1998) (now codified as amended at Minn. Stat. § 609.109, subd. 7 (Supp. 2001)) (substituting term "conditional" release for "supervised" release, but maintaining same requirement for mandatory term).  But the import of the references is consistent—that a five-year "conditional" or supervised-release period followed the 48-month sentence.  Brinkman did not object or inquire into these references.  His attorney stated on the record, with Brinkman present, that the defense and the prosecution had agreed that the period would be concurrent with the probation.  The district court did not abuse its discretion in concluding that the conditional-release term had been incorporated into the plea agreement.

Finally, Brinkman contends that because he was unaware of the conditional release, his plea was not knowing and intelligent and thus, he should be allowed to withdraw his plea.  But, as the district court concluded, the record shows Brinkman was aware of the conditional release term well before sentence was pronounced, and his attorney referred to it as a part of the agreement.

            Affirmed.

_________________

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