This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Thomas James Avant,



Filed September 24, 2002


Lansing, Judge


Crow Wing County District Court

File No. K0952058



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


Donald F. Ryan, Crow Wing County Attorney, 322 Laurel Street, Brainerd, MN  56401 (for respondent)


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


            Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Randall, Judge.

U N P U B L I S H E D   O P I N I O N




            On appeal from an order denying his motion to withdraw a guilty plea, Thomas Avant argues that his plea was not accurate, voluntary, and intelligent

because he was unaware of the possibility of mandatory conditional release at the time he pleaded guilty to a charge of third-degree criminal sexual conduct.  Because the district court stayed imposition of sentence after entry of the negotiated plea, the court’s failure to inform Avant of the conditional-release requirement does not affect the plea’s validity.  Therefore, we affirm the district court’s order.



            In 1995, Thomas Avant was charged with two counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (1994).  He entered a negotiated plea of guilty to one count of third-degree criminal sexual conduct in exchange for dismissal of the remaining count and with the understanding that the state would recommend a stay of imposition of sentence and not ask for more than six months in jail as part of the terms of probation.  At the plea hearing, Avant acknowledged that he understood the court could impose a sentence of imprisonment of up to 15 years.  The district court initially pronounced a stayed 18-month sentence but, when the defense attorney and the prosecutor reminded the court of the plea agreement’s terms, restated the disposition as a stay of imposition of sentence.  Consistent with the plea agreement, the court placed Avant on probation for 15 years, including a term of six months in the county jail.

Avant subsequently violated the terms of his probation, and the district court imposed and executed a sentence of 18 months’ imprisonment.  In compliance with Minn. Stat. § 609.109, subd. 7 (2000), the court ordered a conditional-release period of 60 months.   After serving 12 months in prison, Avant was placed on supervised release for 6 months, to be followed by 54 months of conditional release (60 months minus 6 months of supervised release).

While on supervised release, Avant received a further conviction, and his conditional release was revoked.  After being recommitted to prison, Avant moved to have his guilty plea withdrawn on the ground that he was unaware of the possibility of conditional release at the time he decided to enter a plea.  The district court denied that motion, and this appeal followed.  The state did not file a brief; accordingly, we proceed pursuant to Minn. R. Civ. App. P. 142.03.



            A criminal defendant has no absolute right to withdraw a guilty plea once it is entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  But withdrawal of a plea will be allowed if the defendant proves withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; Alanis, 583 N.W.2d at 577.  Manifest injustice exists when a defendant can show that a guilty plea was not “accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).”  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

            Avant’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. § 609.109, subd. 7 (2000).  Avant argues that his guilty plea was invalid because he had not been informed of the mandatory period of conditional release before entering his plea.

            This court recently considered the validity of a plea made in circumstances substantially identical with those surrounding Avant’s plea.  In State v. Christopherson, 644 N.W.2d 507 (Minn. App. 2002), review denied (Minn. July 16, 2002), the defendant had pleaded guilty to a charge of criminal sexual conduct in exchange for a stay in the imposition of a sentence.  As in this case, the defendant was not informed of the conditional-release requirement until after he had violated the terms of his probation and the district court lifted the stay of imposition.  Id. at 509.  In a postconviction appeal challenging the validity of the plea, we held that the failure to advise the defendant that a mandatory conditional-release term would be part of any later imposed and executed sentence did not invalidate the guilty plea.  Id. at 511.

            Crucial to the Christopherson analysis was the fact that the conditional-release requirement is not operative until a court actually imposes a sentence of imprisonment.  Id. at 510.  The conditional-release statute states that “when a court sentences a person to prison for a violation of [an enumerated statute], the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release.”  Minn. Stat. § 609.109, subd. 7(a) (2000) (emphasis added).  Because conditional release is not implicated when a sentencing court stays imposition of a sentence, to require courts to state on the record that a probation violation could result in imposition of a term of conditional release would be to adopt a rule mandating warnings of all possible consequences of a probation violation.  Christopherson, 644 N.W.2d at 510.  A rule that mandated warnings of all possible consequences would, in practice, limit the ability of courts to respond to probation violations and would also conflict with Minn. Stat. § 609.14, subd. 3 (2000), which allows courts to impose intermediate sanctions, such as treatment or intensive probation.  Id.

            Because the district court stayed the imposition of a sentence at the original sentencing hearing, the court was not required to advise Avant that a term of conditional release could be imposed should he violate the terms of his probation.  Therefore, Avant has failed to demonstrate that withdrawal of his guilty plea is necessary to correct a manifest injustice.