This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-478

 

State of Minnesota,
Respondent,

vs.

Kenneth Dermal Griffin,
Appellant.

 

Filed November 5, 2002

Affirmed

Stoneburner, Judge

 

Ramsey County District Court

File No. K1953084

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Ramsey County Government Center West, Suite 315, 50 Kellogg Boulevard West, St. Paul, MN 55102 (for appellant)

 

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

 

††††††††††† Considered and decided by Stoneburner, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.

 

 

U N P U B L I S H E D† O P I N I O N

STONEBURNER, Judge

Appellant Kenneth Dermal Griffin challenges the district courtís denial of his petition for post conviction relief.† Griffin argues that imposition of a ten-year conditional release term to his sentence violated his negotiated plea agreement.† We affirm.

FACTS

Appellant Kenneth Dermal Griffin pleaded guilty to Criminal Sexual Conduct in the Third Degree in violation of Minn. Stat. ß 609.344, subd.1(b) (1994), in January 1996, pursuant to a plea agreement.† The plea agreement provided that the state would not seek an upward durational departure or pattern-sex-offender disposition, but there was no agreement on the duration of the sentence.† At the plea hearing, counsel agreed on the record that the anticipated sentence would be a mandatory minimum of 36 months, and that the actual sentence would depend on the results of the presentence investigation.† The mandatory conditional release term was not discussed at the plea hearing.

The presentence investigation report confirmed that the mandatory minimum sentence was 36 months, recommended an upward departure, and included the 10-year conditional release term.† The prosecutor, pursuant to the plea agreement, recommended the mandatory minimum sentence of 36 months.†

In February 1996, Griffin was sentenced to an executed prison term of 36 months and the mandatory ten-year conditional release term.† The sentencing court explained to Griffin that he would serve 24 months in prison and 12 months on supervised release but that violation of rules could result in him spending the entire 36 months in prison.[1]† The consequences of violating conditional release were not discussed at the sentencing hearing.† The conditional release term imposed on the record at sentencing was omitted from the original Warrant of Commitment.†† The court amended the Warrant of Commitment in August 1997 to include the term.

In December 2001, Griffin petitioned for postconviction relief, challenging the imposition of conditional release.† The district court denied the petition, finding that Griffinís plea was not based on a promise by the prosecution for a specific length of sentence and that the plea was knowingly and voluntarily entered. †The district court found that the relief requested was not necessary to correct a manifest injustice.† This appeal followed.

D E C I S I O N

The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction courtís findings, and a postconviction courtís decision will not be disturbed absent an abuse of discretion.†

 

Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997) (citing Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).† What the parties agreed to in a plea agreement involves an issue of fact to be resolved by the district court.† State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (citing Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979)).† Issues involving the interpretation and enforcement of plea agreements are issues of law, reviewed de novo.† Id. (citations omitted).

Minn. Stat. ß 609.109 subd. 7 imposes a mandatory conditional release period for all persons committing certain crimes related to sexual conduct.† State v. Humes, 581 N.W.2d 317 (Minn. 1998).† The length of conditional release period assigned is determined by whether a defendant has committed similar crimes in the past.† Minn. Stat. ß 609.109 subd. 7.† Because appellant had earlier been convicted of related crimes, the appropriate conditional release term for Criminal Sexual Conduct in the Third Degree was 10 years.

Griffin claims that he pleaded guilty in order to receive a 36-month sentence, and that the addition of the 10-year conditional release term violates his plea agreement.† See State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (stating that unqualified promise which is part of plea agreement must be honored or plea may be withdrawn); State v. Henthorne, 637 N.W.2d 852, 853 (Minn. App. 2002) (holding that where addition of mandatory conditional release has effect of increasing sentence beyond upper limit of court-accepted plea agreement, sentencing court must allow defendant to withdraw plea if it is impossible to modify sentence so it does not exceed upper limit of agreement).† The record does not support Griffinís claim that his plea was based on the promise of a specific sentence.† The plea petition signed by Griffin acknowledges that the charge against him carries a maximum penalty of 15 years and states the agreement as:

* * * prosec agrees not to seek any departure upwards or to seek pattern sex offender disposition for def.†

Griffin acknowledged in the plea petition that no other promises induced his plea.† At the plea hearing, Griffin acknowledged on the record that the extent of the plea agreement was that the prosecutor agreed not to seek any upward departure or to seek a pattern-sex-offender disposition.† It is clear from the record that Griffin understood the minimum length of sentence would not be known until after the presentence investigation report was completed.† The court reiterated at the plea hearing that the maximum sentence Griffin faced was 15 years.† The record supports the district courtís finding that the plea was induced by the promise of the prosecutor not to seek an upward departure or sentencing as a patterned sex offender and was not based on the promise of a specific length of sentence.† Griffin argues that a joint sentencing recommendation is an agreement for a specific length of sentence, relying on State v. Jumping Eagle, 620 N.W.2d 42 (Minn. 2000) (holding that addition of conditional release term five years after sentencing violated plea agreement for recommended sentence of 172 months).† But Griffinís situation differs from that of Jumping Eagleís.† Griffin understood that the length of his mandatory sentence would be determined by the presentence investigation report.† The report included the mandatory 10-year conditional release term and conditional release was imposed at sentencing.† The record supports the district courtís finding that Griffinís plea was not based on an unqualified promise for a sentence of specific length.

††††††††††† Griffin asserts that even if his plea was not in exchange for a specific sentence, he is entitled to withdraw his plea because he was not properly informed of its consequences.† Griffin argues that his plea was therefore not knowingly made and enforcement of the agreement would constitute a manifest injustice.† See State v. Brown, 606 N.W.2d at 675 (Minn. 2000) (noting that even when agreement does not include limitation on length of sentence, the question remains whether defendant had requisite knowledge of consequences to fulfill requirement that plea be knowingly and understandingly made where conditional release was not discussed at plea hearing or sentencing).††

Nothing in the record, however, supports Griffinís claim that he did not understand the consequences of his plea.† Griffin bargained to avoid an upward departure or sentencing as a patterned sex offender.† He was not aware of the length of sentence he would receive at the time of the plea.† He bargained for the mandatory minimum sentence.† As the district court noted, Griffin has not provided an affidavit or testimony stating that he failed to understand the consequences of the plea at the time it was made.

Griffin was represented by counsel at the time of the plea and sentencing.† It is presumed that a defendant who pleads guilty with assistance of counsel has been advised of his rights and the consequences of his plea.† State ex rel Rankin v. Tahash, 276 Minn. 97, 101, 149 N.W.2d 12, 15 (1967).† The presentence investigation report included a conditional release term of at least ten years in the sentencing recommendation.† Conditional release was imposed at sentencing without objection or question from Griffin or his attorney.[2]† Griffin provided no authority for his assertion that the district court must advise a defendant of the consequences of a violation of conditional release in order for a plea to be knowingly entered.† The record indicates that, at the plea hearing, Griffin was fully aware that he would be subject to a statutory minimum sentence, the length of which would be determined by the presentence investigation, therefore we reject his claim that his plea was taken in violation of Minn.R.Crim.P. 15.01(10) (b) (requiring questioning at plea hearing to ascertain that counsel has informed defendant and defendant understands minimum mandatory statutory sentence).† The record supports the district courtís finding that Griffinís plea was knowingly and understandingly made.

††††††††††† Affirmed.

 



[1] The explanation of sentence is required by Minn. Stat. ß 244.101, subd. 2, but :

[T]he courtís explanation creates no right of a defendant to any specific, minimum length of a supervised release term.

Minn. Stat. ß 244.101, subd. 3.

[2] The district court did not address the issue of the timeliness of Griffinís request to withdraw his guilty plea, but we note that the record does not support Griffinís claim that the delay was caused by lack of notice of the imposition of the 10-year conditional-release term.† The conditional-release term was imposed at sentencing and included in the corrected warrant of commitment 18 months later. His failure to object for almost six years after sentencing further supports the district courtís conclusion that the plea was knowingly entered.