This opinion will be unpublished and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

C4-01-2137

 

 

Bryan Keith Buford, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed September 10, 2002

Affirmed

Halbrooks, Judge

 

 

Dakota County District Court

File No. K094292

 

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

 

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

 

James C. Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Chief Deputy, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

 

            Considered and decided by Minge, Presiding Judge, Halbrooks, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the denial of his petition to withdraw his guilty plea for his 1996 conviction of third-degree criminal sexual conduct.  Appellant argues that the district court erred in (1) finding that appellant knew at the time of sentencing that he faced ten years of conditional release and (2) concluding that the plea agreement was not breached by the addition of the conditional-release term.  Because we find that the record supports the district court’s finding and because appellant’s petition was untimely, we affirm.

FACTS

            On February 27, 1996, appellant Bryan Keith Buford pleaded guilty to third-degree criminal sexual conduct pursuant to a plea agreement in which the state agreed to seek an executed sentence of 36 months.  The district court conducted the plea proceeding and the sentencing hearing together.  After appellant entered his plea and immediately after the court announced that it was imposing a 36-month sentence, the record reflects that the following exchange took place between the court and the prosecutor:

The Court:      Ms. Nee, do you have something further you want to tell me?

 

Ms. Nee:        Your Honor, because this is Mr. Buford’s second conviction for criminal sexual conduct, there is a ten year supervised release after his sentence.

 

                        The Court:      Whatever the statutory amount is.

 

                        Ms. Nee:        Thank you, Your Honor.

 

Neither appellant nor his counsel objected to the conditional-release term.  Following the hearing, the court did not file a written sentencing order.

            On December 29, 1997, the district court filed an “amended sentencing order” in response to a letter concerning appellant’s sentence from the Minnesota Department of Corrections (DOC).  The order included references to the 36-month sentence and “10 year[s] supervised release after sentence.”  Copies of the amended order were sent to the prosecutor, appellant’s defense counsel, and appellant.  Appellant did not object to the amended order at that time.

On October 17, 2001, appellant filed a petition for postconviction relief, seeking either to modify his sentence or to withdraw his guilty plea on the ground that he was never informed before sentencing that he faced ten years of conditional release.  The district court denied the petition, finding that although “[i]t may have been articulated better, * * * [appellant] was aware of the fact that there was going to be a ten-year supervised release period.”  The court also stated that it did not amend the original sentence with the written sentencing order in December 1997, but merely clarified the sentence in response to the letter from the DOC.  This appeal follows.

D E C I S I O N

Appellant argues that the terms of the parties’ plea agreement were clearly set forth in the plea petition and did not include ten years of conditional release.  As a result, appellant contends that the court breached the plea agreement by adding the ten-year term.  Appellant claims that the court’s finding that appellant knew of the conditional-release term at the time of sentencing is unsupported by the record because the term is not in the plea petition, and the court neither discussed the consequences of the conditional release nor explicitly imposed it at the sentencing hearing.

A district court has broad discretion to grant or deny a petition to withdraw a guilty plea and will not be reversed unless it clearly abuses that discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  We will not disturb findings of fact unless they are clearly erroneous.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Appellant argues that a de novo standard should apply to our review of this matter because this case concerns the interpretation of a plea agreement.  See State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).  But because appellant’s argument focuses on the district court’s factual finding that appellant knew of the conditional-release aspect of his sentence, we review appellant’s claims under abuse-of-discretion and clearly erroneous standards.

            There is no absolute right to withdraw a guilty plea once it is entered.  Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).  A defendant may withdraw a guilty plea after sentencing only when it is shown that “withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1.  A manifest injustice exists if the plea is not accurate, voluntary, and intelligent.  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).  A defendant must prove facts warranting withdrawal of the plea by a preponderance of the evidence.  Lundin v. State, 430 N.W.2d 675, 679 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988). 

Appellant relies principally on United States v. Goins, 51 F.3d 400 (4th Cir. 1995), in support of his argument.  Goins pleaded guilty to distributing crack cocaine and was sentenced three months later to the mandatory minimum of five years.  Id. at 401.  The mandatory minimum sentence was not mentioned at the plea proceeding nor in the indictment or plea agreement.  Id.  The only oral reference to the mandatory minimum was at the sentencing hearing when respondent stated, “[T]he guideline range is 60 months because that’s the statutory minimum, and we would ask that he be sentenced to 60 months in jail.”  Id.  The only written reference to the minimum sentence was in the presentence report prepared nearly three months after the court accepted Goins’s guilty plea.  Id. at 402.  Goins filed a notice of appeal and a motion to set aside the plea agreement seven days after he received his sentence.  Id. at 404.  The Fourth Circuit concluded that the district court violated Fed. R. Crim. P. 11 because Goins had not been informed that he faced a mandatory minimum sentence of five years if he pleaded guilty.  Id. at 402-05.

            Recent decisions from Minnesota appellate courts have addressed issues similar to those raised by appellant and addressed in Goins.  In State v. Henthorne, 637 N.W.2d 852 (Minn. App. 2002), a defendant sought to withdraw his guilty plea after the district court imposed a ten-year conditional-release term five years after the defendant pleaded guilty to criminal sexual conduct.  Id. at 854.  The district court had not informed the defendant at the time of his plea that the conditional-release term could be a part of his sentence.  Id. at 855.  We found that the district court abused its discretion by not allowing the defendant to withdraw his plea because nothing in the record showed that the defendant had been made aware of the conditional-release term at the time he pleaded guilty.  Id.

            In State v. Jumping Eagle, 620 N.W.2d 42 (Minn. 2000), the defendant pleaded guilty to first-degree criminal sexual conduct and was sentenced without being informed of the mandatory term of conditional release.  Id. at 43.  The mandatory conditional-release term was not imposed until five years later at a probation-revocation hearing.  Id.  The supreme court found that the terms of the defendant’s plea agreement had been breached, because he faced a sentence that exceeded the upper limit of his negotiated and court-accepted plea agreement.  Id. at 44.  Likewise, in State v. Garcia, 582 N.W.2d 879 (Minn. 1998), the supreme court found that imposition of a conditional-release term nearly two years after sentencing was a breach of the defendant’s plea agreement.  Id. at 880-82.

            This court addressed a factual scenario nearly identical to this case in State v. Norris, No. CX-01-1834, 2002 WL 485292 (Minn. App. Apr. 2, 2002).  In Norris, the appellant was charged with first-degree criminal sexual conduct and pleaded guilty in exchange for an executed sentence of 86 months, a downward departure.  Id. at *1.  At the sentencing hearing, the district court sentenced appellant to 86 months in prison and informed him for the first time that he would also receive ten years of conditional release.  Id.  Neither appellant nor his attorney objected to the conditional-release term.  Id.  Four years later, the appellant filed a petition for postconviction relief that the court denied.  Id.  This court affirmed the denial because the record established that appellant was present at the hearing when the court referred to the conditional-release terms and that appellant expressly agreed to them.  Id. at *2.  This court distinguished Jumping Eagle and Garcia on the ground that, in those cases, the conditional-release terms had not been mentioned until after the sentencing hearings and, thus, were not known to the appellants before sentencing and were not part of their original sentences.  Id.  We also concluded that appellant’s postconviction petition in Norris was untimely as it was filed nearly four years after sentencing.  Id. at *2-*3.

            Here, appellant received notice of the conditional-release term at the sentencing hearing.  Neither appellant nor his counsel objected when they learned that the mandatory term applied. 

            The transcript of the sentencing hearing supports the district court’s finding that appellant knew about the conditional-release term at sentencing, given that appellant and his counsel participated in the hearing during which the court and the prosecutor discussed the matter.  On this record, we cannot say that the written reference to the conditional-release term in the amended sentencing order has resulted in a manifest injustice to appellant.  Therefore, the district court did not abuse its discretion in denying appellant’s motion.

In its brief, the state argues for the first time that appellant’s motion was untimely because nearly four years had elapsed since appellant’s sentencing.  The state contends that this untimeliness is an additional basis for affirming the district court’s denial of appellant’s motion.  We normally do not review issues that are raised for the first time on appeal unless the interests of justice so require.  Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001).  But we briefly address the state’s claim because we agree that it provides another ground on which to affirm the district court’s decision.

A defendant must seek to withdraw his or her 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).  Failure to bring such a motion in a timely fashion casts doubt on the legitimacy of the motion.  See Doughman v. State, 351 N.W.2d 671, 675 (Minn. App. 1984) (finding that a 22-month delay raises doubt about the appellant’s challenge to the plea), review denied (Minn. Oct. 16, 1984).  For example, this court concluded that a motion to withdraw a plea was untimely when the appellant raised it eight months after the fact.  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) (affirming the district court’s denial of a motion to withdraw a guilty plea brought 11 months after sentencing), review denied (Minn. Feb. 14, 1986).  And as noted in Norris, we found that a four-year delay rendered the appellant’s motion to withdraw untimely.  Norris, 2002 WL 485292, at *2-*3.

Here, appellant did not seek to withdraw his plea when the conditional-release term was mentioned at sentencing or when the court issued its amended sentencing order.  Instead, appellant brought his motion approximately four years after sentencing and nine years after the date of the charged offense.  To permit the appellant to withdraw his plea at this time would unduly prejudice the state’s ability to prosecute this claim.  Appellant’s considerable delay renders his motion untimely and, thus, provides an additional ground to affirm the district court’s denial of his motion.

Affirmed.



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