This opinion will be unpublished and

may not be cited except as provided by

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






Derek Richey, petitioner,





State of Minnesota,



Filed February 18, 2003


Randall, Judge


Olmsted County District Court

File No. K1-94-1819


John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103, and


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


            Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from the denial of his postconviction petition to withdraw his 1994 guilty plea to first-degree criminal sexual conduct, appellant argues that the later addition of a five-year conditional-release term in the sentencing order violated the plea agreement, which did not mention the conditional-release term.  Appellant argues that, although no specific prison duration was mentioned in the plea agreement, the court imposed the presumptive sentence and thus, without knowledge of the conditional-release term, appellant’s plea was not intelligently entered.  Because we find no evidence that the district court abused its discretion, we affirm.


            On July 1, 1994, appellant was charged with first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(e)(i) (1992).  He pleaded guilty to this offense on July 27, 1994.  Appellant entered this plea pursuant to a plea bargain providing that the prosecutor would recommend a downward dispositional departure if appellant was accepted into a sex-offender treatment program.  When appellant entered his plea, he acknowledged that the maximum penalty for his crime was 25 years in prison. 

            Appellant was not accepted into a sex-offender treatment program and requested the court sentence him to the presumptive 98-month prison term.  On October 19, 1994, the court sentenced him to this 98-month term.  At the sentencing hearing, nothing was said on the record about either supervised release or conditional release.  The written sentencing order, issued five days later, provided that at least 65 months of the sentence was to be served in prison and, at most, 32 months to be served on supervised release.  Additionally, the order required appellant to serve "five years on conditional release minus any time served on supervised release." 

On February 22, 2002 (seven and one-half years later), appellant filed a petition for postconviction relief seeking to vacate his conditional release or withdraw his guilty plea.  Initially, appellant claimed that the conditional release was not part of the original sentencing order.  After seeing that the order did contain the conditional-release term, appellant claimed he had not received the order.  The prosecutor showed that appellant had been mailed a copy of the order in October 1994.  Though the record reflects that appellant was sent a copy of the order, he claims "this ["this" may refer either to the sentencing order itself, or to the imposition of the conditional release period] wasn't even brought to my attention in '94."  The district court denied appellant's petition, this appeal follows.


            We review decisions of postconviction courts under an abuse-of-discretion standard.  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999).  A sentence pursuant to Minn. Stat.   § 609.344, subd. 1(b) (1992), must contain a conditional-release term.  State v. Humes, 581 N.W.2d 317, 319 (Minn. 1998).  A sentence pursuant to the criminal-sexual-conduct statute that lacks a conditional-release term is an unauthorized sentence.  State v. Garcia, 582 N.W.2d 879, 881 (Minn. 1998). 

The Minnesota Rules of Criminal Procedure provide that “[t]he court at any time may correct a sentence not authorized by law.”  Minn. R. Crim. P. 27.03, subd. 9.  The Minnesota Supreme Court held in Garcia that the district court could amend a sentence to include a conditional-release term without violating the defendant’s due-process rights because “a sentence does not have the qualities of constitutional finality that attend an acquittal.”  Garcia, 582 N.W.2d at 881 (quoting United States v. DiFrancesco, 449 U.S. 117, 134, 101 S. Ct. 426, 436 (1980)).  Thus, Minnesota allows the district court to amend a sentence to include the mandated conditional-release term that was overlooked at sentencing.  The circumstances surrounding the later addition are scrutinized on appellate review to insure due process and to avoid impermissible long sentences.  On these facts, appellant has failed to show that the district court abused its discretion.  Although the district court did not discuss the mandatory conditional-release term at the sentencing hearing itself, the court did include the five-year conditional-release term in the sentencing order released just five days later.  The record reflects that appellant was sent a copy of this order.  Appellant's argument that the conditional-release term was imposed years later when he was released from prison is without merit.  It was more than seven years before appellant even brought a petition for postconviction relief.

Appellant was treated fairly throughout the sentencing process.  Appellant pleaded guilty pursuant to a plea agreement that did not include any promise as to the length of sentence he would receive.  Cf. Id. (defendant promised a sentence of 81 months).  Under this agreement, the prosecutor agreed to recommend a downward dispositional departure conditioned on appellant's acceptance into a sex-offender program.  When appellant was not accepted in such a program, appellant himself requested the court sentence him to the 98-month presumptive sentence.  Due to the failure to be accepted into a treatment program, appellant cannot complain that he was denied any benefit of his plea agreement.  See State v. Brown, 606 N.W.2d 670, 675 (Minn. 2000) (holding plea was induced by opportunity for probation not by length of sentence).  Appellant was then sentenced, as he requested, to the presumptive sentence under the statute.  The sentencing order contained the proper sentence, which included the conditional-release term.  We cannot say that the five-day delay between the sentencing hearing and the sentencing order is sufficient to show the district court abused its discretion by denying appellant's petition for postconviction relief.

We repeat that it is important for district courts to properly instruct a criminal defendant regarding the conditional-release term and other consequences, such as registration as a predatory offender, at the time of sentencing.  Our opinion does not reflect indifference to appellant's argument that he should have been informed at the sentencing hearing.  We also do not accept the argument that when there is a plea agreement, anything and everything can be tacked on to a defendant's sentence after the fact and without disclosure on the record at the time so long as later "add-ons" do not exceed the statutory maximum.  Agreements are agreements, and the state must honor its word as well as defendants must.  We agree, but conclude that this five-day gap does not show that the district court abused its discretion many years later by denying appellant's petition for postconviction relief.

We have considered appellant's argument, raised in his pro se brief, and it does not affect the outcome of this case.