This opinion will be unpublished and

may not be cited except as provided by

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







Robert Lee Powers, petitioner,





State of Minnesota,




Filed October 8, 2002

Affirmed as modified

Halbrooks, Judge


Hennepin County District Court

File No. 92096163



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


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


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487  (for respondent)




            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Robert Lee Powers challenges the postconviction court’s order modifying his sentence for attempted first-degree criminal sexual conduct, arguing that the court abused its discretion by imposing a modified sentence that exceeded the upper limit of his plea agreement rather than allowing appellant to withdraw his guilty plea.  We conclude that the postconviction court did not err by modifying appellant’s sentence.  But because the modified sentence exceeds the upper limit of appellant’s plea agreement, we affirm as modified.


            On June 10, 1993, the district court sentenced appellant Robert Lee Powers to 64 1/2 months for attempted first-degree criminal sexual conduct, the maximum sentence under his plea agreement.  On February 18, 1998, the Minnesota Department of Corrections sought clarification from the district court as to whether appellant’s sentence should have included a mandatory conditional-release term.  The district court then added a five-year conditional-release term to appellant’s sentence.

            Appellant filed a petition for postconviction relief, arguing that the imposition of the five-year conditional-release term breached his plea agreement because it extended his sentence beyond the upper limit of that agreement.  Appellant asked that his sentence be reduced to one year and one day, plus five years of conditional release, or, in the alternative, that he be allowed to withdraw his guilty plea.  Appellant later informed the court that he preferred to withdraw his plea.

            On March 5, 2002, the postconviction court modified appellant’s sentence to one year and one day, plus five years of conditional release.  This appeal follows.


            Appellant argues that the postconviction court’s order results in a sentence of 68 months because he will be incarcerated for eight months and then serve an additional 60 months on conditional release.  Appellant contends that this modified sentence still exceeds the 64 1/2-month maximum sentence contemplated by his plea agreement and that, as a result, his sentence should be vacated and the case remanded so that he can withdraw his guilty plea.  Appellant’s argument fails because it presumes that he must be permitted to withdraw his plea because his amended sentence exceeds the upper limit of his plea agreement. 

            We generally will not reverse a postconviction court’s decision absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  But the interpretation and enforcement of plea agreements presents an issue of law, which we review de novo.  State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000).  Minn. R. Crim. P. 27.03, subd. 9, permits a district court to amend a sentence to add a mandatory conditional-release term.  State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998).  But if the imposition of a conditional-release term results in a sentence that exceeds the upper limit of a court-accepted plea agreement, then either the defendant must be allowed to withdraw the plea or the sentence must be modified to bring the aggregate of the defendant’s incarceration and conditional release within that upper limit.  Jumping Eagle, 620 N.W.2d at 44-45.  Courts may choose to modify a sentence rather than permit the defendant to withdraw a guilty plea, particularly when withdrawal of the plea may unduly prejudice the state.  Id. at 45; see State v. Wukawitz, 644 N.W.2d 852, 855 (Minn. App. 2002) (stating that the district court may choose to modify the sentence “so long as the modification includes a conditional-release term and results in a sentence that does not exceed the upper limit of the negotiated plea” (citation omitted)), review granted (Minn. Aug. 6, 2002).

            In Wukawitz, the defendant pleaded guilty to two offenses pursuant to an agreement that provided that his maximum aggregate sentence would not exceed 140 months.  Id. at 853.  The district court sentenced the defendant to 140 months.  But two years later, the court amended the sentence to add a mandatory conditional-release term of five years.  Id.  The defendant appealed the amended sentence, and this court remanded to the district court for a determination of whether the guilty plea was induced by the prosecutor’s agreement to a maximum sentence.  Id.  The district court found that the sentencing agreement had induced the plea and amended the sentence so that the conditional-release term was concurrent and coterminous with the 140-month sentence, thus keeping the sentence within the upper limit of the sentencing agreement.  Id.  The defendant appealed the sentence again.

We concluded that the defendant’s conditional-release term did not begin until his incarceration ended.  Id. at 856.  But we determined that the defendant would be incarcerated for 93 1/3 months of his 140-month sentence and that adding 60 months of conditional release would yield a net sentence of 153 1/3 months, or 13 1/3 months more than his agreed-upon maximum sentence.  Id. at 855-56.  Concluding that while imposing a conditional-release term may be mandatory, this court noted that nothing in Jumping Eagle suggests that the term must be exactly five years or exactly ten years.  Id. at 856.  We modified the sentence so that Wukawitz’s conditional-release term began when his incarceration ended and terminated on the same date of his original sentence.  As modified, the sentence did not exceed the upper limit of his plea agreement.  Id.

            Here, the district court’s addition of the conditional-release term results in a sentence of 43 months of incarceration and 60 months of conditional release, or 38 1/2 months more than the sentence appellant bargained for.  Jumping Eagle requires that the postconviction court either permit appellant to withdraw his plea or modify the sentence to bring it within the upper limit of appellant’s plea agreement.  Jumping Eagle, 620 N.W.2d at 44-45.  The postconviction court’s decision to modify the sentence is supported by the record because a new trial would unduly prejudice the state’s ability to prosecute the case, given that the offense occurred nearly ten years ago.  See Chapman v. State, 282 Minn. 13, 16, 162 N.W.2d 698, 700-01 (1968) (stating that a conviction based on a guilty plea should not be vacated unless “the strongest of reasons” overcome the prejudice that may befall the state due to the passage of time). 

But the modified sentence imposed by the postconviction court still exceeds the 64 1/2-month sentence contemplated by appellant’s plea agreement because it results in a total of 68 months—eight months of incarceration followed by 60 months of conditional release.  Thus, the sentence must be further modified.  As in Wukawitz, we accomplish this by beginning appellant’s conditional-release term when his incarceration ends and terminating it on the same date that his original sentence ends.  Wukawitz, 644 N.W.2d at 857.  This modification results in appellant’s incarceration for eight months and conditional release for 56 1/2 months, for a total sentence of 64 1/2 months.  The postconviction court appropriately chose to modify the sentence rather than permit appellant to withdraw his plea, but we modify the postconviction court’s order to bring appellant’s sentence into compliance with Jumping Eagle.

            Affirmed as modified.