This opinion will be unpublished and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
Antoine Tyrone Ousley, petitioner,
State of Minnesota,
Ramsey County District Court
File No. K096686
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
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, 50 Kellogg Blvd. West, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Minge, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Antoine Tyrone Ousley challenges the district court’s denial of his postconviction petition, arguing that the addition of a mandatory five-year term of conditional release to his sentence violated the terms of his negotiated plea agreement. We affirm.
This court will not disturb a postconviction court’s decisions absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). And we “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Id. (citation omitted).
Appellant’s conviction under Minn. Stat. § 609.342 (2002) is subject to an additional term of conditional release, as defined by Minn. Stat. § 609.109, subd. 7(a) (2002). It is a five-year term (minus time served on supervised release) that is mandatory and cannot be waived. State v. Humes, 581 N.W.2d 317, 321 (Minn. 1998). The supreme court has held that a district court has authority to apply this conditional release term to a sentence based on a negotiated plea bargain, even if the plea bargain contains an agreed-upon maximum sentence. State v. Garcia, 582 N.W.2d 879, 881 (Minn. 1998).
Appellant negotiated a plea agreement under which he faced a sentence of 48 months. The written plea petition does not mention the conditional release term. Appellant claims that he did not become aware that the term had been added to his 48 months until a year after sentencing, when his prison caseworker informed him of it. But the postconviction court specifically found this claim to be “false,” and the record supports this finding. The transcript of the plea hearing reveals that appellant was given time to confer with his attorney when confusion arose surrounding his plea and that when he returned, the court asked him if he needed more time or if he had any more questions about the plea agreement. Appellant answered that he did not. The conditional release term was imposed at the sentencing hearing, with the rest of appellant’s sentence. The court stated, on the record, “[t]here will also be supervised conditional release of at least five years * * * .” Neither appellant nor his counsel made any objection to the term. In addition, appellant did not challenge his sentence by direct appeal.
The postconviction court found that appellant had not met his burden of showing by a preponderance of the evidence that he was entitled to postconviction relief. Minn. Stat. § 590.04, subd. 3 (2002). Because the evidence in the record supports these findings, we conclude the postconviction court did not abuse its discretion in denying appellant’s petition.
The postconviction court further found that appellant had not filed his postconviction petition in a timely fashion. We agree. Even if, as he claims, appellant only became aware of the conditional release term in 1997, a year after his sentencing, he waited nearly five years to petition for any kind of relief. This is not the due diligence a postconviction petitioner should exercise. Delay alone is not sufficient grounds for denying a postconviction petition where the petitioner has not had a direct appeal. Bailey v. State, 414 N.W.2d 503, 507 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987). But it is a factor a postconviction court may consider in ruling on a petition. See Black v. State, 560 N.W.2d 83, 85 (Minn. 1997). We thus conclude that both because appellant’s petition was untimely, and because he did not show by a preponderance of the evidence that he was entitled to relief, the postconviction court did not abuse its discretion in denying appellant’s petition for postconviction relief.