This opinion will be unpublished and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

CX-03-185

 

Michael Warren, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed August 26, 2003

Affirmed

Minge, Judge

 

Ramsey County District Court

File No. K2981603

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Minge, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

MINGE, Judge

 

            Appellant challenges the district court’s postconviction denial of his request to withdraw his guilty plea, arguing that because he was not informed that a five-year conditional-release term was part of his sentence, his plea was not knowingly and understandingly made.  Because appellant received a guidelines sentence, and because his request is neither timely nor necessary to correct a manifest injustice, we hold that the district court did not abuse its discretion in denying his request to withdraw his guilty plea.

FACTS

 

On May 11, 1998, appellant Michael Warren pleaded guilty to one count of fourth-degree criminal sexual conduct.  During the hearing, the court stated that based upon the information before the court and based on appellant’s plea, appellant would be sentenced to a guidelines concurrent sentence.  The court further stated that a pre-sentence investigation report would be prepared along with a sentencing guidelines worksheet.  If the court determined that based upon those reports, a guidelines concurrent sentence was not appropriate and the sentence was changed, appellant would have the option of withdrawing his guilty plea.  Conditional release was not discussed or mentioned during the hearing.  Appellant’s attorney cannot remember if she discussed conditional release with appellant prior to the hearing; her file notes do not reflect a discussion of conditional release.  On September 14, 1998, appellant was sentenced to 21 months.

 On May 26, 1999, the state moved to amend appellant’s sentence to include five years of supervised release.  At a hearing on July 13, 1999, the court noted that conditional release was inadvertently not placed in the record at the previous hearings but that it was required by “statute for offenses of this nature.”  The state’s motion to amend the sentence was granted. 

On September 18, 2002, appellant filed a petition for postconviction relief.  Appellant alleged that the addition of the five-year conditional-release term violated his plea agreement and that his plea “was not knowingly and understandingly made” because he was not informed about conditional release at the time he pleaded guilty.  The postconviction court denied appellant’s request for relief and this appeal followed.  

D E C I S I O N

 

            The issue in this appeal is whether the postconviction court erred by denying appellant’s motion to withdraw his guilty plea or modify his sentence.  Appellant contends that because he was not informed about conditional release at the time of his guilty plea, adding conditional release at a later date violates the terms of his plea.  Appellant also contends that because he was unaware of the conditional-release term when he accepted the plea agreement, his plea was not knowingly and understandingly made.  Appellant argues that he should be allowed to withdraw his plea. 

            While a defendant does not have an absolute right to withdraw a guilty plea, a court must allow withdrawal of a plea if the request for withdrawal is timely and withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; Perkins v. State,559 N.W.2d 678, 685 (Minn. 1997).  “A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent.”  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  When reviewing an appeal based on an appellant’s petition for postconviction relief, this court reviews the “postconviction court’s findings to determine whether there is sufficient evidentiary support in the record” for those findings.  Dukes v. State,621 N.W.2d 246, 251 (Minn. 2001).  Absent an abuse of discretion, the decisions of a postconviction court will not be disturbed.  Id.  But the interpretation and enforcement of plea agreements present issues of law, which are subject to de novo review.  State v. Jumping Eagle,620 N.W.2d 42, 43 (Minn. 2000).

            Conditional release is a mandatory part of certain sex-related offenses.  See Minn. Stat. § 609.109, subd. 7 (2002).  Despite this mandate, the term has not been included at initial sentencing in numerous cases, but it has been added later.  In many cases, it appears that the defendants, the attorneys, the courts, and the probation staff were not aware of the requirement or felt no need to refer to it except obliquely.  Since defendants rarely expect to be recidivists, they may not be concerned with the risks of conditional release until they are faced with the consequences of a violation of the release terms.  This situation has spawned a significant number of postconviction relief petitions, including the petition in this case.

Appellant contends that his situation is similar to State v. Jumping Eagle, where the defendant’s plea agreement also did not reference conditional release.  State v. Jumping Eagle, 620 N.W.2d 42 (Minn. 2000).  In Jumping Eagle, the supreme court held that the defendant bargained for a specific sentence, which was a fixed term, in his plea negotiation.  The later addition of conditional release caused his sentence to exceed the fixed term.  Thus, the court determined that the defendant should either be allowed to withdraw his guilty plea, or his sentence should be modified so that it did not extend past the upper limit of the bargained-for term of his sentence.  Here, appellant negotiated for a “guidelines” sentence, not for a fixed-term sentence.  At the time of appellant’s plea, the sentencing guidelines included a reference to the five years of conditional release.  Sent. Guidelines cmt. II.E.05; State v. Brown,606 N.W.2d 670, 673 n.3 (Minn. 2000) (noting that the guidelines require the imposition of conditional release as a mandatory part of sentencing for criminal sexual conduct).  This case can therefore be distinguished from Jumping Eagle

Appellant also contends that his case is similar to State v. Wukawitz, where the defendant’s sentence was modified so that the conditional-release period ended on the same date as the defendant’s supervised release period.  State v. Wukawitz, 644 N.W.2d 852 (Minn. App. 2002), aff’d in part, rev’d in part, and remanded ___ N.W.2d ___ (Minn. May 29, 2003).  But Wukawitz, like Jumping Eagle, also negotiated for a fixed term as opposed to a guidelines sentence.  Thus Wukawitz is also distinguishable from appellant’s case.

Appellant also contends that a withdrawal of his guilty plea is necessary to correct a manifest injustice.  Appellant argues that he was not told about conditional release, and he relies on an affidavit from his attorney as proof.  We recognize that appellant may not have been aware of the conditional-release term at the time of his plea agreement and his initial sentencing.  It certainly does not appear that the trial court or counsel had this conditional-release term in mind at that juncture.  However, it does appear that the relatively modest initial concurrent sentence was the primary consideration for appellant’s decision to plead guilty.  Even if he had been fully aware of the conditional-release portion of the sentence, appellant undoubtedly expected not to violate the terms of conditional release and face subsequent incarceration for that violation.  In any event, stronger evidence of attorney failure should be provided to overcome the assumption that a court-appointed attorney advised appellant of the consequences of the plea bargain.  See State ex rel. Rankin v. Tahash, 276 Minn. 97, 101, 149 N.W.2d 12, 15 (1967).  Given the other considerations in this case, the claim of manifest injustice is not adequate to support a reversal of the district court’s decision.

In addition, appellant’s motion to withdraw his plea is not timely.  The hearing amending appellant’s sentence to add conditional release was on July 13, 1999.  Appellant’s attorney was present at this hearing.  Appellant did not file his petition for postconviction relief until more than three years later on September 18, 2002.  We hold this motion is not timely and the guilty plea cannot be withdrawn.  See State v. Searles,274 Minn. 199, 200, 142 N.W.2d 748, 749 (1966) (stating motion for withdrawal of guilty plea after three years is untimely); State v. Weisberg, 473 N.W.2d 381, 383 (Minn. App. 1991) (stating motion for withdrawal of guilty plea after 17 months is untimely), review denied (Minn. Oct. 11, 1991); State v. Lopez, 379 NW.2d 633, 636 (Minn. App. 1986) (holding motion for withdrawal of guilty plea made 11 months after sentencing was untimely), review denied (Minn. Feb. 14, 1986).

Because appellant’s motion was not timely, because appellant consented to a guidelines sentence, which Minnesota courts have determined includes conditional release, and because there is not an adequate basis to reverse for manifest injustice, we affirm the district court’s denial of appellant’s motion to withdraw his guilty plea.

Affirmed.