This opinion will be unpublished and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

C9-02-1513

 

 

Steve Geran Johnson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed May 6, 2003

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 95017894

 

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State 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

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

 

            Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Willis, Judge.

 

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Steve Geran Johnson appeals from the district court's decision to impose a conditional-release term.  After imposing the conditional release, the district court reduced that term to less than five years, thereby allowing Johnson's sentence to remain consistent with the terms of his plea bargain.  Because conditional release was not addressed in Johnson’s plea petition, Johnson contends that the district court erred.  We affirm. 

FACTS

On March 2, 1995, Johnson was charged with three counts of first-degree criminal sexual conduct and one count of kidnapping.  Johnson pleaded guilty to one count of first-degree criminal sexual conduct.  The plea agreement provided that Johnson would be sentenced to 172 months and the remainder of the charges would be dismissed.  Johnson was sentenced to 172 months on July 18, 1995.

            On March 30, 1999, the department of corrections contacted the district court, inquiring whether the court intended to impose a conditional-release term as part of Johnson's sentence.  Conditional release was not discussed in Johnson's plea petition.  On April 6, 1999, the district court informed the department that the court intended to impose a ten-year conditional-release term.  The department added this term to Johnson's sentence.

            Johnson filed a petition for postconviction relief, arguing that the conditional-release term violated his plea agreement.  The district court reduced Johnson's conditional-release term to 56 months, to run concurrently and be identical to the term of supervised release. 

D E C I S I O N

Johnson argues that the district court erred in reducing his conditional release to less than 5 years, running concurrently with his supervised release.  He claims that the ruling is in clear violation of Minn. Stat. § 609.109 (2000).  This court reviews postconviction proceedings for abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  The postconviction court’s decision will not be disturbed absent an abuse of discretion.  Id.  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). 

Minn. Stat. § 609.109, subd. 7 (2000) provides:

when a court sentences a person for prison for [first through fourth degree 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.  If the person was convicted [of one of those crimes] the person shall be placed on conditional release for five years, minus the time the person served on supervised release. 

 

Although the statute provides for a five-year conditional release, such a term cannot extend the maximum sentence to which the defendant agreed with the plea.  See State v. Jumping Eagle, 620 N.W.2d 42, 44 (Minn. 2000) (ruling that defendant "now faces a sentence that exceeds the upper limit of his court-accepted plea petition, thus violating that agreement").   Johnson argues that because his sentence cannot be extended, his time served should be reduced to allow for a five-year conditional release, ending when his negotiated sentence was to end. 

            Conditional release is mandatory and cannot be waived by the sentencing court.  State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998).  However, the duration of the conditional release under Minn. Stat. § 609.109 is not mandatory.  State v. Wukawitz, 644 N.W.2d 852, 856 (Minn. App. 2002), review granted (Minn. Aug 6, 2002).  The Wukawitz court held that although the statute

clearly provides for a five- or ten- year conditional-release term in ordinary circumstances, when satisfaction of that specific term would reduce the previously imposed incarceration, the result would not just thwart the legislation but would accomplish a completely opposite purpose.  Permitting a reduction of the conditional-release term rather than eliminating previously imposed incarceration time is more consistent with the statutory purpose in correcting this defined group of cases that were incorrectly sentenced before sentencing courts, prosecutors, and defense attorneys understood that the conditional-release terms were mandatory and nonwaivable. 

 

Id. The court ruled that the plain language in the statute provides for adjusting the conditional-release term by "permitting supervised release to be subtracted from the conditional-release term."  Id.  The court also noted that the legislature changed the wording of the statute in 1993, replacing the phrases "not less than five years" and "not less than ten years."  Id. (citation omitted).  We agree with the Wukawitz court that the intent of the statute is to allow a flexible conditional-release term to comply with a defendant's plea bargain.  See Minn. Stat. § 645.08 (2002) (statutes should be construed in a manner consistent with the manifest intent of the legislature). 

            Therefore, based on this court's holding in Wukawitz, we hold that the district court correctly applied Minn. Stat. § 609.109 when it reduced Johnson's conditional-release term to less than five years.

            Affirmed.