This opinion will be unpublished and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

C6-01-1944

 

Michael Laray Winding, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 30, 2002

Affirmed

Willis, Judge

 

St. Louis County District Court

File No. K095600322

 

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

 

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

 

Alan L. Mitchell, St. Louis County Attorney, James T. Nephew, Assistant County Attorney, 100 N. 5th Avenue West, #501, Duluth, MN  55802-1298 (for respondent)

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.*


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Michael Laray Winding challenges an order dismissing his postconviction petition, in part, because it was untimely.  Because we conclude that the district court did not abuse its discretion, we affirm.

FACTS

            In 1995, appellant was charged with first-degree criminal sexual conduct, kidnapping, and two counts of fifth-degree assault.  He pleaded guilty to an amended charge of third-degree criminal sexual conduct.  In exchange for his plea, the state agreed to a 50-month “cap” on appellant’s possible sentence and dismissed the remaining charges. 

At the plea hearing, appellant was not notified of a mandatory conditional-release term.  But at the sentencing hearing, the district court imposed a 50-month sentence for the third-degree sex offense and ordered that “[s]ection 609.346, [s]ubdivision 5, be applied,” which imposes an additional mandatory conditional-release term to a sex-offender’s sentence.  The court advised appellant “that with respect to your 50-month sentence, you will be required to serve a minimum of two-thirds of that sentence, or 33-and-one-third months.  * * * [Y]ou will thereafter be on conditional release for a period of up to five years.” 

In discussing the conditional-release term and accompanying sex-offender registration requirement, the court told appellant that he had “the right to appeal the Judge’s, or the Court’s sentence in this matter.”  The court also suggested that once appellant reached the correctional facility he could have the matter reviewed to determine whether an appeal would be appropriate. 

            On August 13, 2001, after he completed his incarceration and nearly six years after sentencing, appellant filed a petition for postconviction relief, arguing that the postconviction court was required either to vacate the conditional-release term or to allow him to withdraw his guilty plea because the imposition of the term resulted in a sentence that exceeded the scope of his plea agreement.  The postconviction court dismissed appellant’s petition as untimely.  This appeal follows.

D E C I S I O N

The postconviction court determined that, because appellant did not object to the imposition of a conditional-release term at the sentencing hearing and waited nearly six years before filing his petition for postconviction relief, his petition was untimely.  This court reviews the decisions of the postconviction court under an abuse-of-discretion standard.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).

“Once a guilty plea has been entered, there is no absolute right to withdraw it.”  Shorter v. State, 511 N.W.2d 743, 746 (Minn. 1994) (citation omitted).  Relief on a postconviction petition to withdraw a guilty plea will be granted only if the petition is timely and there is proof to the satisfaction of the court that withdrawal is necessary to correct manifest injustice.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  The general policy favoring finality of judgments applies to criminal as well as civil cases.  Chapman v. State, 282 Minn. 13, 16, 162 N.W.2d 698, 700 (1968).  This court has found a petition to withdraw a guilty plea untimely when filed as early as eight months after the guilty plea.  State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984); see also State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986) (holding that motion to withdraw guilty plea 11 months after sentencing was untimely), review denied (Minn. Feb. 14, 1986). 

In this case, appellant was notified of the imposition of the conditional-release term at his sentencing hearing.  Despite the sentencing court’s suggestion that appellant review his case and determine whether appeal on the issue was appropriate, appellant waited nearly six years before filing a petition for postconviction relief.  Appellant argues that he learned that he might have a ground for withdrawing his plea only after reading State v. Garcia, 582 N.W.2d 879, 881-82 (Minn. 1998) (holding that, when district court imposes mandatory conditional-release term that violates plea agreement, defendant may either withdraw his plea or accept agreed-on sentence as amended to include conditional-release term).  But appellant cites no authority, and we find none, for the proposition that a party may wait for a case that he thinks is helpful to him on an issue without running the risk that the delay will make a request for relief untimely.  We conclude that, because appellant waited nearly six years after being notified of the imposition of the conditional-release term, the postconviction court did not abuse its discretion by finding his petition for postconviction relief to be untimely.  We therefore do not reach any of the other issues raised by appellant.

Affirmed.



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