This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Anthony Love, a/k/a Robert Allen Shattuck,



Filed July 2, 2002


Lansing, Judge


Hennepin County District Court

File No. 92078122



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


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, Suite 600, 2829 University Ave. SE, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N



            In a postconviction appeal, Anthony Love argues that the district court erred in modifying his sentence to include a conditional-release term rather than allowing him to withdraw his guilty plea.  Because the modified sentence did not exceed the upper limit of Love’s court-approved plea agreement, the district court acted within its discretion in denying the motion for plea withdrawal, and we affirm.



            Anthony Love entered a negotiated plea to one count of third-degree criminal sexual conduct in 1993.  Under the terms of the court-approved plea agreement, Love received a 100-month executed prison sentence.  Love began serving his sentence on February 10, 1993; on April 1, 1999, the district court issued an order imposing an additional five-year conditional release.  A conditional-release term was not set forth in the plea petition nor was it addressed at the plea and sentencing hearing.

            Love moved to withdraw his plea in March 2001.  After a hearing, the district court found, on the record, that the state would be prejudiced by trying the case and modified the sentence to a period of 100 months, including the conditional release.  Love appeals the denial of his postconviction request for withdrawal of his plea.



            Appellate courts review a postconviction order to determine whether the evidence is sufficient to sustain the findings of the postconviction court.  Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).  Absent an abuse of discretion, a postconviction court’s decision will not be disturbed on appeal.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  But interpretation and enforcement of plea agreements present issues of law and receive independent review.  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).

            It is undisputed that Love’s guilty plea to third-degree criminal sexual conduct resulted in a conviction that requires a conditional-release term as part of the sentence.  See Minn. Stat. § 609.346, subd. 5 (1992) (now codified as amended at Minn. Stat. § 609.109, subd. 7 (Supp. 2001)).  The application of the conditional-release statute is mandatory and nonwaivable.  State v. Humes,  581 N.W.2d 317, 320 (Minn. 1998).  The district court has the power to amend a sentence to include the mandatory conditional-release term under Minn. R. Crim. P. 27.03, subd. 9, which provides that “[t]he court at any time may correct a sentence not authorized by law.”  Id.  at 318.

When the addition of a mandatory conditional-release term has the effect of increasing a sentence beyond the upper limit of a court-accepted plea agreement the sentencing court must either allow the defendant to withdraw his plea or modify his sentence so that the maximum period of incarceration does not exceed the upper limit of the plea agreement.  State v. Jumping Eagle, 620 N.W.2d 42, 45 (Minn. 2000).  Jumping Eagle directed that “[t]he state should be allowed” to present argument on whether to modify the sentence or permit plea withdrawal.  Id.

            Love contends that when the state opposes a defendant’s plea withdrawal motion, Jumping Eagle imposes on the state a burden to establish undue prejudice before the district court may modify the sentence instead of allowing withdrawal of the plea.  Love relies on Hoagland v. State, 518 N.W.2d 531, 536 (Minn. 1994), as setting forth the burden the state must meet.  See Jumping Eagle, 620 N.W.2d at 45 (citing Hoagland as “discussing factors considered in determining whether state is unduly prejudiced by a new trial”).  The fact-specific factors in Hoagland were formulated to evaluate undue prejudice in the retrial of issues that did not involve a conditional-release question.  Hoagland, 518 N.W.2d at 532-36. But more significantly, we do not agree with Love’s underlying premise that the supreme court’s decisions on conditional release restrict the district court’s latitude in allowing plea withdrawal or modifying the sentence, and we do not agree that these decisions restructure the law on plea withdrawal.  See State v. Wukawitz, 644 N.W.2d 852, 854 (Minn. App. 2002) (analyzing six decisions from the Minnesota Supreme Court concerning the imposition of the conditional-release term).

Thus, the district court did not abuse its discretion in denying Love’s request for withdrawal of his plea and, instead, modifying his sentence to incorporate the conditional-release term without exceeding the upper limit of the court-approved plea agreement.  We note, in addition, that the district court did specifically find that the state would be prejudiced.  The court based its finding on the state’s argument that it would be prejudiced by the difficulty of locating the complaining witness, presenting evidence from witnesses whose capacity to remember would be diminished after nine years, and subjecting the complaining witness to the traumatic effect of testifying about a sexual assault that occurred nine years ago.