This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Steven Charles Kaelble,
Filed November 26, 2002
Affirmed as modified
Toussaint, Chief Judge
Ramsey County District Court
File No. K4965662
Mike Hatch, Attorney General, 525 Park Street, Suite 500, 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 respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, Suzanne M. Senecal-Hill, Special Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Steven Charles Kaelble appeals from the postconviction court’s order denying his petition, which challenged his 1996 conviction for first-degree criminal sexual conduct, arguing that the addition of a mandatory ten-year conditional-release term to his sentence created a manifest injustice entitling him to withdraw his guilty plea. We conclude that the addition of the conditional-release term did not create a manifest injustice, but because it exceeded the maximum sentence contemplated in the plea agreement, we affirm the sentence as modified.
F A C T S
On April 8, 1996, Steven Charles Kaelble pleaded guilty to first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g) (1994). The plea agreement contemplated a 244-month sentence, which was a double upward durational departure from the sentencing guidelines. The plea agreement stated that the maximum sentence for Kaelble’s crime was 30 years, or 360 months. In return for Kaelble’s guilty plea, the prosecution agreed to withdraw a charge for an offense with a mandatory life sentence.
The ten-year conditional-release term required by Minn. Stat. § 609.109, subd. 7(a) (2000) was not mentioned during the plea hearing. At the May 23, 1996 sentencing hearing, the state reiterated the plea agreement of 244 months and, for the first time, addressed the conditional release term. The state asked that the district court add the mandatory ten-year conditional-release term to the sentence contemplated by the plea agreement. The court then sentenced Kaelble to an executed prison term of 244 months, followed by up to ten years of conditional-release to be reduced by whatever time Kaelble would serve under supervised release. At that time, neither Kaelble nor his attorney objected to the terms of the sentence.
On February 28, 2002, nearly six years after sentencing, Kaelble moved the district court to either modify his sentence or allow him to withdraw his guilty plea, arguing that he was not informed of the ten-year conditional-release term at the time that he pleaded guilty. The postconviction court denied Kaelble’s motion, finding that there was no evidence that Kaelble lacked an understanding of the mandatory conditional-release term, but “entered his plea knowingly [and] voluntarily * * * to avoid a mandatory life sentence if convicted at trial.” Further, the court noted that neither Kaelble nor his attorney questioned or objected to the imposition of the conditional-release term at the sentencing hearing. This appeal follows.
D E C I S I O N
On appeal from postconviction proceedings, this court limits its review to determining whether sufficient evidence exists to sustain the postconviction court’s findings. Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997). A postconviction court’s decision will not be disturbed absent an abuse of discretion. Id. However, interpreting and enforcing plea agreements are issues of law, which are reviewed de novo. State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).
Kaelble argues that because he was not informed of the mandatory conditional-release term at the time he pleaded guilty, a manifest injustice occurred entitling him to withdraw his guilty plea. We disagree.
After a guilty plea is entered, a criminal defendant does not have an absolute right to withdraw that plea. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997) (citation omitted). Rather, a guilty plea may only be withdrawn when it is “necessary to correct a manifest injustice.” Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice is present if the plea is not accurate, voluntary, and intelligent. Perkins, 559 N.W.2d at 688. A defendant bears the burden of proving by a preponderance of the evidence that the facts warrant withdrawal of the plea. Lundin v. State, 430 N.W.2d 675, 679 (Minn. App. 1988), review denied (Minn. Dec. 21, 1988).
Here, the record indicates that although the conditional-release term was not expressly addressed at Kaelble’s plea hearing, it was included in the sentence entered without objection at the sentencing hearing. A conditional-release term is mandatory and cannot be waived or negotiated. State v. Henthorne, 637 N.W.2d 852, 854-55 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002). “[T]he failure to mention the possibility of a conditional release at the time of the plea does not invalidate the plea.” State v. Christopherson, 644 N.W.2d 507, 511 (Minn. App. 2002). Because Kaelble and his counsel were present when the conditional-release period was imposed, the postconviction court did not err in finding that Kaelble entered the plea knowingly and voluntarily.
Kaelble’s six-year delay in filing his petition provides an additional ground for denial of his motion. Delay in seeking relief is one factor that may be considered in evaluating a motion to withdraw a guilty plea. Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991). A petitioner must seek to withdraw a 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). Delay is given greater weight against a petitioner when that delay may effectively bar reprosecution. Id.
Neither Kaelble nor his attorney objected to the mandatory term until nearly six years after it was imposed, and there is little doubt that Kaelble’s six-year delay in filing his motion to withdraw his guilty plea would unfairly hinder Kaelble’s reprosecution. This court has found a petition to withdraw a guilty plea untimely when filed as early as eight months after the guilty plea. See, e.g., State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986) (11-month delay was untimely), review denied (Minn. Feb. 14, 1986); State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984) (eight-month delay after plea was untimely). It has been nine years since the criminal sexual conduct at issue began, and this delay would negatively affect the victim’s ability to accurately testify to that conduct. See Chapman v. State, 282 Minn. 13, 16-17, 162 N.W.2d 698, 700-01 (1968) (warning that withdrawal of plea should not be allowed without “strongest of reasons” if effect would be to “seriously prejudice or bar” the state’s ability to reprosecute charge).
The postconviction court did not abuse its discretion by denying Kaelble’s motion to withdraw his guilty plea, since his six-year delay in bringing his motion to dismiss would unfairly hinder the state’s ability to prosecute the case.
In the alternative, Kaelble argues that: (1) the sentence should be modified to ensure that his maximum sentence, including the ten-year conditional-release term, does not exceed his 244 month presumptive sentence; (2) because his total sentence, including the conditional-release term, extends beyond 244 months, the postconviction court erroneously ruled that Kaelble agreed to his sentence; and (3) his sentence should be modified so that his maximum period of incarceration, including the ten-year conditional release period, does not exceed what he contends to be the agreed-upon sentence: 244 months.
A guilty plea is not unknowing if the defendant understood, both at the plea hearing and at sentencing, that he risked an executed sentence longer than the sentence he actually received—including the conditional-release term. State v. Brown, 606 N.W.2d 670, 675 n.6 (Minn. 2000). However, a defendant’s sentence, with the conditional-release term, may not exceed the maximum sentence contemplated by the guilty plea agreement. State v. Jumping Eagle, 620 N.W.2d at 44-45 (Minn. 2000); State v. Henthorne, 637 N.W.2d 852, 855-56 (Minn. App. 2002) (allowing withdrawal of plea where sentence, including conditional-release term, exceeded maximum amount contemplated by plea agreement), review denied (Minn. Mar. 27, 2002).
The state acknowledges that “[t]he only fixed upper limit on Appellant’s sentence was the statutory maximum.” Kaelble’s plea agreement listed the statutory maximum sentence for his crime to be 30 years, or 360 months. Adding the ten-year conditional-release term to the agreed-upon 244-month sentence results in a total sentence of 364 months, which is four months longer than the 30-year maximum sentence noted in the plea agreement.
Because a sentence may not exceed the upper limit of a court-accepted plea agreement, Kaelble’s sentence shall be reduced to 240 months, resulting in a maximum sentence—including the conditional-release term—of 360 months.
Affirmed as modified.