This opinion will be unpublished and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,
Jamal Ronta Williams,
Filed February 25, 2003
Hennepin County District Court
File No. 95017451
Mike Hatch, Attorney General, 445 Minnesota Street St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55144 (for appellant)
Considered and decided by Wright, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.
G. BARRY ANDERSON, Judge
Appellant challenges the denial of his petition to reduce his sentence or withdraw his guilty plea for his 1995 conviction of third-degree criminal sexual conduct. Appellant argues that the district court abused its discretion in refusing to grant relief because when appellant entered the plea he did not know the five-year conditional-release term was a requirement of the sentence. Because appellant’s petition was untimely, we affirm.
On November 8, 1995, appellant Jamal Ronta Williams pleaded guilty to third-degree criminal sexual conduct pursuant to a plea agreement in which the parties also agreed that appellant would serve a 44-month prison sentence, an upward departure from the presumptive probationary sentence. The written plea agreement made no mention of the mandatory five-year period of conditional release as required byMinn. Stat. § 609.346, subd 5(a) (1994) (now codified as amended at Minn. Stat. § 609.109, subd. 7 (2002)). Likewise, during appellant’s plea hearing, there was no mention of the conditional-release requirement.
On November 29, 1995, the district court sentenced appellant to
the custody of the Commissioner of Corrections for a total of 44 months. At least two-thirds of that sentence shall be served in prison and a maximum of one third shall be served on supervised release as well as in criminal sexual conduct case a minimum of five years on conditional release which assumes that you commit no disciplinary offences in or out of prison resulting in any disciplinary confinement period.
This was the first time that appellant had been made aware that his plea agreement and subsequent conviction carried with it a mandatory term of conditional release. Neither appellant, nor his attorney, inquired or made any objection when the district court imposed the conditional-release requirement as part of appellant’s sentence. After sentencing appellant on the criminal-sexual-conduct charge, and briefly mentioning the conditional release, the district court then sentenced appellant for violating the terms of his probation on an unrelated matter.
The warrant of commitment failed to mention the five-year period of conditional release. In May 2000, the district court amended the warrant to accurately reflect the sentence imposed in 1995 and included the conditional-release term. Appellant filed a petition for postconviction relief on February 1, 2002, seeking to withdraw his guilty plea, or in the alternative, to have his five-year term of conditional release vacated. The postconviction court denied appellant’s petition, and this appeal followed.
Appellate courts “review 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) (citing Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997)). “The decisions of a post conviction court will not be disturbed unless the court has abused its discretion.” Id. An appellate court will reverse a district court’s decision whether to permit petitioners to withdraw their guilty plea only if the district court abused its discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).
A defendant does not have an absolute right to withdraw a guilty plea after entry. Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997). Further, the defendant has 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). A criminal defendant shall be allowed to withdraw a plea of guilty upon (1) a timely motion and (2) proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. Minn. R. Crim. P. 15.05, subd 1. Manifest injustice occurs when the defendant’s guilty plea is not “accurate, voluntary and intelligent.” Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).
Appellant contends that his plea was improperly induced because the plea agreement made no mention of the mandatory conditional-release period. Further, there was no mention of the conditional-release period when appellant’s plea was taken; it was not until appellant’s sentencing nearly three weeks later that he first learned that he was required to serve a five-year term of conditional release. During sentencing, the conditional-release period was only briefly mentioned between the district court’s imposition of the 44-month sentence on the criminal-sexual-conduct charge and the sentencing on an unrelated probation violation.
Appellant did not object to the imposition of the conditional-release term during the sentencing hearing in November 1995. Appellant first brought this matter to the attention of the district court in February 2002, nearly six-and-a-half years after he was originally sentenced. Appellant argued that because he was not made aware of the mandatory conditional-release term until after his plea was taken, his plea was not accurately, voluntarily, and intelligently given. See Alanis, 583 N.W.2d at 577. Appellant argues that because his plea was not properly made, this court should allow him to withdraw his plea or have his sentence reduced. See State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000); State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998).
But there is a fundamental and overriding difference between the facts here and those in Garcia and Jumping Eagle. Here the conditional-release term was imposed at sentencing, and appellant waited more than six years before objecting to imposition of the mandatory term. In Jumping Eagle and Garcia, there was no mention of the mandatory conditional-release term at sentencing. Jumping Eagle, 620 N.W.2d.at 43, Garcia, 582 N.W.2d at 880-81. Further, in both Jumping Eagle and Garcia,the appellants sought relief soon after the conditional release terms were imposed. Jumping Eagle, 620 N.W.2d.at 43, Garcia, 582 N.W.2d at 881.
The district court denied appellant’s postconviction petition in part because he did not file the petition in a timely fashion. A defendant must seek a timely withdrawal of his or her guilty plea. Smith v. State, 596 N.W.2d 661, 664-65 (Minn. App. 1999) review denied (Minn. Aug. 27, 1999). Delays as short as eight months, State v. Andern, 358 N.W.2d 428, 431 (Minn. App. 1986), and 22 months, Doughman v. State, 351 N.W.2d 671, 675 (Minn. App. 1984), have been found to make the motion untimely. Here appellant’s considerable delay in seeking relief renders his petition untimely.
Appellant also suggests that he was denied the effective assistance of counsel because his defense attorney did not object to the imposition of the conditional-release term at sentencing. Counsel’s failure to object occurred long before the principles in Jumping Eagle and Garcia were established. This court has not previously held that failure to object to the imposition of a mandatory conditional-release term constitutes ineffective assistance of counsel, and we decline to do so here.