This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,


Benjamin James Alverson, petitioner,


Filed December 17, 2002


Minge, Judge


Olmsted County District Court

File No. K0981724


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


Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, Office of the State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Minge, Judge.



U N P U B L I S H E D   O P I N I O N 


MINGE, Judge


            Benjamin James Alverson seeks review of the postconviction order denying his petition to withdraw his guilty plea, arguing he was unaware a mandatory five-year conditional release term could be added to his original sentence.  He contends that had he known a mandatory five-year conditional release term could be added to his sentence, he would not have pleaded guilty.  Alverson also argues that he was denied effective assistance of counsel because his attorney did not tell him about the conditional release term, and that he should have been granted a hearing on his motion to withdraw his guilty plea.  We affirm.



            In July 1997 and June 1998, appellant Benjamin James Alverson, age 22 at the time of the complaint, had sexual contact with a 14-year-old girl and a 13-year-old girl.  A June 4, 1998, complaint charged appellant with a single count of criminal sexual conduct in the third degree for sexual intercourse with a 13-year-old girl.  A June 10, 1998, complaint charged appellant with two counts of criminal sexual conduct in the third degree for sexual intercourse and digital penetration of a 14-year-old girl.  Appellant claims both of these encounters were consensual and without force of any kind.  According to a violation report, appellant contacted victims by befriending young males and then using those males to gain access to young females.  Appellant also admitted that he preferred hanging out with young kids, that he knew the victims were about 13 years old, and that he was probably a pedophile.  Appellant’s actions were in violation of Minnesota law, which states:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists:


* * * *


(b) the complainant is at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant.


Minn. Stat. § 609.344, subd. 1 (1996).


            On September 14, 1998, appellant pleaded guilty to the first complaint and one count of the second complaint.  This was a negotiated plea based on (1) dismissal of the second count from the second complaint; (2) a joint recommendation for the sentences to be served concurrently; and (3) work release pending sentencing.  On November 20, 1998, imposition of appellant’s sentence was stayed, and he was placed on probation for 15 years.  As a condition of the stay, appellant was to (a) spend nine months in the county jail; (b) complete a sex offender treatment program; (c) have no contact with children less than 18 years of age; and (d) have no contact with the victims.

Appellant violated probation in January and February 1999.  On May 21, 1999, a probation violation hearing was held.  Appellant admitted (1) failing to complete sex offender treatment; (2) contacting children less than 18 years of age; and (3) contacting the victims via the Internet.  As a result, the court executed appellant’s sentence, imposing concurrent 18-month and 23-month sentences.  The court also imposed the mandatory five-year conditional release term required by Minnesota law.  Minn. Stat. § 609.346, subd. 5 (1996).[1]  Appellant’s 18-month sentence expired on or about May 6, 2000.  Appellant’s 23-month sentence expired on or about October 4, 2000.  Appellant is currently serving his conditional release term, which will expire on or about February 14, 2005.  Appellant filed a petition for post-conviction relief with the district court on November 16, 2001.  The petition was denied without a hearing and appellant appealed.



            Withdrawal of Guilty Plea

This court “review[s] a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id. (citation omitted).  “A postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (citation omitted).

            A reviewing court will reverse the district court’s determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  The interpretation and enforcement of plea agreements present issues of law subject to de novo review.  State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000).  While a defendant does not have an absolute right to withdraw a guilty plea, a court must allow the withdrawal of a plea if necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; see also Perkins v. State, 559 N.W.2d 678, 685 (1997) (stating that while a defendant does not have an absolute right to withdraw a guilty plea, a defendant may withdraw the plea upon proof to the court that withdrawal is necessary to correct a manifest injustice).  A manifest injustice occurs if the plea is not accurate, voluntary, and intelligent.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  In this case, at issue is whether appellant entered into the plea in an intelligent and knowing manner.

In order for a plea to be intelligent and knowing, a defendant must be aware of relevant circumstances and direct consequences of the plea.  Alanis, 583 N.W.2d at 578; see also Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469 (1970) (stating a plea is a waiver of the constitutional right to a trial and thus must be a “knowing, intelligent act[ ] done with sufficient awareness of the relevant circumstances and likely consequences” (citation omitted)); see also State v. Brown, 606 N.W.2d 670, 675 (Minn. 2000) (holding defendant must have “knowledge of the consequences of the plea”). Direct consequences are those that “flow definitely, immediately, and automatically from the guilty plea, namely, the maximum sentence to be imposed.”  Alanis, 583 N.W.2d at 578.

Here, whether appellant’s plea was intelligently and knowingly made turns on whether imposition of the conditional release term violated the plea agreement.  Appellant argues his lack of knowledge concerning conditional release precludes an intelligent, knowing plea because conditional release “affects the maximum amount of prison time [a defendant] may have to serve.”  State v. Henthorne, 637 N.W.2d 852, 856 (Minn. App. 2002); see also Alanis, 583 N.W.2d at 578 (holding a defendant who enters a guilty plea is entitled to know the maximum sentence to be imposed).  Appellant argues that because his concurrent sentences were to run no longer than 23 months and the conditional release term added 60 months to his sentence, he should have been advised of the conditional release term at the time of the guilty plea or at the latest, at the sentencing hearing.

            To enter his plea, appellant signed a separate petition for each of the two charges. The plea petition shows a maximum possible sentence of 15 years.  By signing the plea, appellant indicated he was aware of the maximum sentence he could be given for the crimes.  Appellant was informed the prosecutor and appellant’s counsel would request concurrent sentences. The sentence length was not specified in the plea petition and no promises were made to appellant concerning the length of his sentence.

Appellant need not be specifically informed of conditional release until sentencing is imposed.  Minn. Stat. § 609.346, subd. 5 (1995).  The statute states:          

Notwithstanding the statutory maximum sentence otherwise applicable to the offense or any provision of the sentencing guidelines, when a court sentences a person to prison for [criminal sexual conduct], the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release.


Id. (emphasis added).  In this case, the appellant had two separate hearings: a sentencing hearing and later a probation revocation hearing.  Appellant’s sentence was not imposed until the probation revocation hearing.  Thus, the statute is satisfied because appellant was informed of conditional release at the time his sentence was imposed.

To be sure, the risk of prison time because of the conditional release requirement was inherent in the original sentence.  It is implied in or flows automatically from the conviction as a matter of law.  See Kaiser v. State, 641 N.W.2d 900, 905 (Minn. 2002).  However, having to actually serve a conditional release term was not a direct consequence of appellant’s plea.  In this case, the prison time resulting from the conditional release sentence is not definite, automatic, or immediate.  Here, conditional release was not imposed until after appellant violated probation and was sent to prison.  If the appellant had completed sex offender treatment, refrained from contacting his victims via the Internet, and refrained from contact with those under the age of 18, no prison time would have resulted from the conditional release sentence.  Instead, appellant would have been on probation for 15 years without serving any additional prison time.  Under these circumstances, conditional release is not automatic or immediate.

A recent case decided by this court is dispositive.  In Christopherson, this court held that:

Because the imposition of Christopherson’s sentence was stayed, he was not subject to a conditional release at the time his plea was accepted.  Therefore, the fact that the possibility of a conditional release was not mentioned at the time Christopherson entered his plea did not render the plea invalid, even though a conditional release was later added when his sentence was imposed.


State v. Christopherson, 644 N.W.2d 507, 512 (Minn. App. 2002).  Appellant, like Christopherson, did not agree to a specific prison sentence.  Rather, appellant was aware of three things: (1) the maximum sentence could be 15 years;  (2) his counsel and the prosecutor would ask for concurrent sentences; and (3) his attorney told him he would probably receive the presumptive sentences.  None of these were agreements to definite prison sentences.

Appellant was aware of the potential maximum length of his sentence.  Since his conditional release did not exceed the maximum sentence, his conditional release term does not violate appellant’s plea agreement.

Although we affirm the district court’s decision, we are troubled by how frequently this court is asked to address conditional release and the timing of its communication to defendants.  Explicit statements by district courts regarding conditional release might help to stem the tide of appeals in this area.

Timeliness of Motion

Minnesota law requires a court to allow a defendant to withdraw a guilty plea if there is a timely motion and proof to the satisfaction of the court that withdrawal of the plea is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1.  The statute does not define “timely.”  Statutory construction is a question of law which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

The state argues for the first time in its brief that this court need not address the merits of appellant’s petition because the petition was not timely filed.  The state argues because it was not timely filed, the district court correctly denied relief.  This court generally denies review of issues that are raised for the first time on appeal unless it is necessary to promote the interests of justice.  Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001).  Because we are denying appellant the requested relief, the timeliness issue is not critical; and we decline to consider the timeliness of the petition.

Denial of Hearing

Under Minnesota law, appellant is entitled to a postconviction hearing on a motion unless the “petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (2000).  “[A]ny doubts whether an evidentiary hearing is necessary should be resolved in favor of the party requesting the hearing.”  Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002) (citation omitted).  At the same time, the court has broad discretion in determining whether appellant is entitled to a hearing on a postconviction motion.  Shern v. State, 635 N.W.2d 96, 98 (Minn. App. 2001).  Appellant bears the burden of showing there are facts entitling him to relief; conjectures, bald assertions, and conclusionary statements are not sufficient.  Gassler v. State,590 N.W.2d 769, 771-72 (Minn. 1999).

Here, the presence of all pertinent facts in the record allowed the district court to determine appellant was entitled to no relief.

Effective Assistance of Counsel

Appellant argues he was denied effective assistance of counsel because his counsel failed to advise him about conditional release prior to his guilty plea.  The standard to be met by the appellant is high.  Appellant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness.”  Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984), cited in Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).  Appellant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.


Id. at 694, 104 S. Ct. at 2068, cited in Gates v. State, 398 N.W.2d at 561.  In addition, counsel’s performance is presumed to be reasonably professional.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  When determining if counsel was incompetent, the court will look at the entirety of the representation.  See Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998) (examining attorney’s representation at pre-trial and trial stages).  To succeed, appellant’s counsel must be shown to be incompetent with errors that are grave.  State v. Jones, 392 N.W.2d at 236.

Both appellant and respondent argue appellant’s intent at the time of the plea.  Appellant states the guilty plea would have been withdrawn had counsel informed appellant about conditional release.  Respondent states appellant was motivated by the dismissal of one count of criminal sexual conduct, concurrent sentences, work release, and a belief appellant would be on probation for 15 years without any prison time. 

Appellant had effective legal representation.  With counsel’s assistance, appellant entered a plea and had an opportunity to avoid serving any prison time.  Although appellant may have doubted his ability to abide by the conditions of his release, it is unlikely he would be so pessimistic regarding his character as to reject the favorable disposition that he received.  The fact that he is serving prison time is due to his own conduct in violating the terms of his probation.




[1] This statute was repealed for renumbering in 1998 after the appellant was charged.  The new statute is Minn. Stat. § 609.109, subd. 7 (1998).