This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Michael James Norris, petitioner,



Filed April 2, 2002


Harten, Judge


Hennepin County District Court

File No. 97013611


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


Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


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


            Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant challenges the order denying his postconviction petition to withdraw his guilty plea to first-degree criminal sexual conduct.  Appellant argues that his guilty plea was invalid because he did not know at the time he entered the plea that he would be required to serve a period of conditional release, even though he learned of this at sentencing and did not object.  We affirm.


On 19 February 1997, appellant Michael James Norris was charged with first-degree criminal sexual conduct.  On 9 May 1997, pursuant to a plea agreement with respondent State of Minnesota, appellant pleaded guilty in exchange for a downward durational departure to 86 months in prison.  Appellant was informed at the plea hearing that he would have to provide a DNA sample and register as a sex offender when he was released from prison, and he agreed to those conditions.  On 30 May 1997, appellant was sentenced to serve 86 months in prison and ten years on conditional release.  The conditional release period was not mentioned in the plea petition, but neither appellant nor his attorney inquired or objected when it was imposed as part of the sentence. 

            On 14 May 1998, appellant filed a motion to correct his sentence, arguing that the ten-year conditional release term imposed upon him following his release from prison was incorrect under Minn. Stat. § 609.346, subd. 5 (1996) (now codified as amended at Minn. Stat. § 609.109, subd. 7 (2000)), which mandates a five-year term of conditional release for first-time sex offenders.  On 9 June 1998, the district court ordered the reduction of appellant’s ten-year conditional release term to five years.  Approximately three years later, on 6 April 2001, appellant petitioned for postconviction relief, seeking to withdraw his guilty plea.  The postconviction court denied appellant’s petition, and this appeal followed.


Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id. (citation omitted).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. (citation omitted).  A reviewing court will reverse the district court’s determination of whether 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).

 “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) (citations omitted). 

The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.


Minn. R. Crim. P. 15.05, subd. 1.  A defendant bears the burden of proving by a preponderance of the evidence that the facts warrant withdrawal of the plea.  Lundin v. State, 430 N.W.2d 675, 679 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988). 

Appellant argues that “[b]ecause the imposition of a period of conditional release was not part of the plea agreement which [he] accepted, he must be allowed to withdraw his guilty plea.”  Appellant relies on State v. Garcia, 582 N.W.2d 879 (Minn. 1998), to support his argument, but Garcia is distinguishable from the instant case.  Garcia challenged the “post-sentencing addition of a conditional release term to his plea-bargained sentence.”  Id. at 880 (emphasis added).  Garcia’s plea petition made no reference to the conditional release term, nor was it mentioned in any hearings on his case before or at the time of sentencing.  Id. at 880-81.  The court held that “Garcia must be allowed to withdraw from the plea agreement if he so chooses.”  Id. at 882.  Similarly, the appellant’s plea agreement “did not include any reference to the mandatory conditional-release term” in State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000).  “The mandatory conditional-release term was not mentioned at Jumping Eagle’s sentencing hearing and no such term was imposed by the court.”  Id.

            Here, the postconviction court found:

The difference between Garcia and Jumping Eagle and the instant case is that [appellant] knew at his sentencing that he would be placed on conditional release for a period of 10 years.


(The postconviction court noted that appellant’s conditional release term was later reduced to five years.)  Also in contrast to Garcia and Jumping Eagle, here the conditional release terms were included in appellant’s original sentence.  The postconviction court noted that neither appellant nor his attorney raised any objection.  The record shows that appellant was not only present at the sentencing hearing when the district court referred to the conditional release terms, but also he expressly agreed to the terms on the record.  These circumstances alone are dispositive in affirming the district court order.

The state also argues that appellant’s significant and inexcusable delay in moving to withdraw his plea should prevent him from receiving relief at this late date.  We agree.  Appellant was sentenced in May 1997 and did not file his postconviction motion to withdraw his guilty plea until almost four years later, in April 2001.  A petitioner must act with due diligence in pursuing his postconviction claims, Sutherlin v. State, 574 N.W.2d 428, 432-33 (Minn. 1998), and must seek to withdraw a guilty plea in a timely manner.  Smith v. State, 596 N.W.2d 661, 664-65 (Minn. App. 1999), review denied (Minn. Aug. 27, 1999).  Delay is given greater weight against a petitioner when the delay may effectively bar reprosecution.  Id. 

Withdrawal of appellant’s guilty plea could unduly prejudice the state’s ability to prosecute the case.  By waiting almost four years to attempt to withdraw his plea, appellant has made it difficult for the state to locate the victim and has negatively affected the victim’s ability to accurately testify to appellant’s criminal sexual conduct.  See Chapman v. State, 282 Minn. 13, 16-17, 162 N.W.2d 698, 700-01 (1968) (withdrawal of plea after conviction should not be allowed without “strongest of reasons” where effect would be to seriously prejudice state’s ability to reprosecute charge due to changes in evidentiary circumstances and warning against use of guilty plea as tactical device to frustrate prosecution).  We conclude that the postconviction court did not abuse its discretion in denying appellant’s motion to withdraw his guilty plea.