This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-879

 

State of Minnesota,

Respondent,

 

vs.

 

Carl Joseph Matusovic,

Appellant.

 

Filed December 31, 2002

Affirmed as modified

Gordon W. Shumaker, Judge

 

Dakota County District Court

File No. K0941555

 

 

 

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

 

James Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Chief Deputy, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

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

 

 

Considered and decided by Shumaker, Presiding Judge, Minge, Judge, and Huspeni, Judge.*

 

U N P U B L I S H E D†† O P I N I O N

GORDON W. SHUMAKER, Judge

††††††††††† Appellant Carl Joseph Matusovic pleaded guilty to criminal sexual conduct in the third degree, and the court told Matusovic that under the plea agreement it would not depart from the sentencing guidelines.† Because we hold that Matusovicís motion to withdraw his guilty plea or vacate his conditional-release term is timely and that the district court abused its discretion when it added a ten-year conditional-release to the presumptive sentence Matusovic agreed to in his plea agreement, we affirm as modified.

FACTS

††††††††††† During August 1994, 27-year-old Matusovic had ďconsensualĒ sexual relations with 14-year-old D.T.† Because of this sexual relationship, Matusovic pleaded guilty to criminal sexual conduct in the third degree on November 16, 1994.† The district court accepted Matusovicís plea and stated:

The Court is not going to depart pursuant to the agreement from the Sentencing Guidelines and the Court will impose a sentence in accordance with the Guidelines.

 

The district court sentenced Matusovic to 57 months on January 9, 1995.† The court ordered Matusovic to serve 38 months in prison and 19 months on supervised release, along with

ten years on conditional release minus any time served on supervised release assuming that you commit no disciplinary offense that may result in the execution of a disciplinary confinement period.

The court then tried to explain the sentence, and stated:

 

In other words, if you commit a disciplinary offense in or out of prison, your actual time served in prison could be extended to the entire fifty-seven months plus the ten years of conditional release time.

 

In November 2001, the department of corrections told Matusovic he was in violation of his conditional release because of his recent check-forgery conviction.† Only at this point did Matusovic understand that his conditional-release term was not merely the requirement that he register as a sex offender.† On March 20, 2002, Matusovic moved to withdraw his guilty plea or vacate his conditional-release term.† Matusovic now appeals the district courtís denial of this motion.

D E C I S I O N

††††††††††† We review postconviction proceedings for abuse of discretion.† Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).† We will reverse the district courtís denial of Matusovicís motion to withdraw his guilty plea only if the district court abused its discretion.† Barragon v. State, 583 N.W.2d 571, 572 (Minn. 1998).

††††††††††† Minnesota Rule of Criminal Procedure 15.05, subd. 1, governs the withdrawal of a guilty plea after sentencing and requires Matusovic to prove that his motion to withdraw his guilty plea was (1) timely and (2) ďnecessary to correct a manifest injustice.Ē

1.†††††††† Was Matusovicís motion timely?

††††††††††† The state contends that Matusovicís motion to withdraw his guilty plea or vacate his conditional-release term was not timely because it was made over seven years after his plea and sentencing.† The law does not provide a clear time limit for bringing motions to withdraw a guilty plea, so courts must analyze the evidence in support of the motion to withdraw the guilty plea and the time period since the plea was entered on a case-by-case basis.† See Jones v. State, 288 Minn. 527, 528-29, 179 N.W.2d 315, 316-17 (1970) (holding that a motion to withdraw a guilty plea is not allowed when the defendant has not proved beyond a preponderance of the evidence that he did not understand the charges against him, plus the 16-year delay in bringing the motion should be taken into consideration); Saiki v. State, 375 N.W.2d 547, 549 (Minn. App. 1985) (denying the defendantís motion to withdraw his guilty plea after four years although new evidence may have made the defendantís self-defense claim stronger, because there was a factual basis for his plea), review denied (Minn. Dec. 19, 1985); Doughman v. State, 351 N.W.2d 671, 67475 (Minn. App. 1984) (denying the defendantís motion to withdraw his guilty plea because the defendant was fully informed of his rights prior to entering a plea, plus the 22-month lapse between the plea and the motion raised doubts about the motionís legitimacy), review denied (Minn. Oct. 16, 1984).

††††††††††† The state also argues that allowing Matusovic to withdraw his plea would create reprosecution problems because the witnesses will have diminished recall of the events, the victim would have to undergo additional trauma, and the state would have difficulty in locating witnesses.† The supreme court has held that the policy reason for rule 15.05 allowing only timely motions is to prevent reprosecution problems:

[A] judgment of conviction based upon a plea of guilty should not be vacated without the strongest of reasons if the effect of such vacation will be to seriously prejudice or bar proceedings by the state due to changes in evidentiary circumstances occurring between the time the plea of guilty was accepted and the time when the case will be tried on the merits if the judgment of conviction is, in fact, vacated and the plea of guilty annulled.† A plea of guilty cannot be used as a tactical device to frustrate the prosecution.

 

Chapman v. State, 282 Minn. 13, 16-17, 162 N.W.2d 698, 700-01 (1968).† However, these policy concerns can be avoided here because Matusovic asks for the alternative relief of vacation of his conditional-release term.† Because we find that a modification of Matusovicís sentence by vacating some of his conditional-release term will not create reprosecution problems, we hold that Matusovicís motion was timely.† See State v. Jumping Eagle, 620 N.W.2d 42, 45 (Minn. 2000) (holding that if conditional-release term violates plea agreement, state should be allowed to show it would be prejudiced by having to retry the case).

2.†††††††† Does Matusovicís conditional-release term result in manifest injustice?

††††††††††† The interpretation and enforcement of plea agreements present issues of law subject to de novo review.† Id. at 43.† When reviewing Matusovicís plea and sentence, we will find manifest injustice if his ďguilty plea [was] not accurate, voluntary, and intelligent.Ē† Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).† Matusovic contends that his plea was not intelligent because when he pleaded guilty he agreed to be sentenced in accordance with the sentencing guidelines, which do not include a provision for conditional release.†

The supreme court has held that a plea is intelligent if ďthe defendant understands the charges, his or her rights under the law, and the consequences of pleading guiltyĒ to the charged offense.† Id.† We have previously concluded that a conditional-release term is a direct consequence of a guilty plea.† State v. Henthorne, 637 N.W.2d 852, 856 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002).† The state conceded in its brief that the first time Matusovic knew that his guilty plea would result in a conditional-release term was at the sentencing hearing.† In reviewing the plea and sentence, we must determine what Matusovic knew and agreed to at his plea hearing.† Because we find that at the plea hearing the court stated that Matusovicís sentence would be within the sentencing guidelines, Matusovic did not agree to the conditional-release term; so, his sentence impermissibly exceeds the upper limits of his plea agreement.† See Jumping Eagle, 620 N.W.2d at 42 (holding that a defendantís court-ordered sentence, along with any ordered conditional-release term, cannot exceed the upper limits of the defendantís court-accepted plea petition).† Matusovic believed he was agreeing to a presumptive sentence between 50 to 58 months, and instead he has a possibility of serving an additional 120 months.† Because Matusovic did not know that the conditional-release term would be added to his sentence when he pleaded guilty, his sentence results in a manifest injustice.† Thus, we hold that the district court abused its discretion by not allowing Matusovic to withdraw his guilty plea or vacating some of his conditional-release term.

††††††††††† Because a withdrawal of Matusovicís plea would unduly prejudice the state, the sentence may be modified instead to conform to the upper limits of his plea agreement.† See id. at 45; State v. Wukawitz, 644 N.W.2d 852, 855 (Minn. App. 2002), review granted (Minn. Aug. 6, 2002).† Matusovic must serve some of the mandatory conditional-release term, although it need not be the full ten-year period.† Wukawitz, 644 N.W.2d at 856.† Matusovicís conditional-release term began when he was released from incarceration after 38 months, ran concurrently with his 19 months of supervised release, and ended when his supervised-release term ended.† See id. at 856-57 (noting that conditional-release statute provides for supervised release and conditional release to run concurrently).† Thus, we conclude that Matusovicís sentence must be modified so that his conditional-release term ended when his supervised-release term ended.

††††††††††† Affirmed as modified.



*† Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.