This opinion will be unpublished and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

A03-259

 

Dwight Charles Nokes, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed October 21, 2003

Reversed and remanded

Minge, Judge

 

Todd County District Court

File No. K7-99-517

 

John M. Stuart, State Public Defender, Theodora Gaitas, 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 55103; and

 

Gaylord Saetre, Todd County Attorney, Jane M. Gustafson, Assistant County Attorney, 221 First Avenue South, Suite 2, Long Prairie, MN 56347 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

MINGE, Judge

 

            This appeal is from an order denying a postconviction petition seeking modification of appellant Dwight Nokes’s sentence for third-degree criminal sexual conduct after the district court, at the probation revocation hearing, added a five-year conditional-release term that had not been mentioned in the plea agreement.  Because the addition of the conditional-release term violates the plea agreement calling for a stayed 48-month sentence, we reverse and remand to allow Nokes to move to withdraw his guilty plea.

FACTS

 

            The complaint alleged that Nokes engaged in sexual penetration with A.B.C., a developmentally disabled girl who was about 13 years old when the conduct started.  The complaint alleged that the conduct continued for about two years.  When questioned by police, Nokes admitted having had sexual contact with the victim, and knowing that she was only 13 or 14 years old and that she was mentally disabled.

            Nokes exercised his right to represent himself.  At a pretrial hearing with stand-by counsel present to assist Nokes, the parties reached a plea agreement. Under that agreement, Nokes would plead guilty to one count of third-degree criminal sexual conduct, and the state would dismiss the other counts.  The prosecutor agreed to recommend a downward dispositional departure from the presumptive executed sentence of 48 months if the sex-offender assessment concluded that Nokes was amenable to treatment.  The prosecutor stated, “I’m fairly confident that Mr. Nokes is going to be amenable to treatment.” 

            The sex-offender assessment concluded that Nokes was amenable to treatment.  The district court sentenced Nokes pursuant to the plea agreement, staying execution of the presumptive 48-month sentence, placing Nokes on probation for up to 15 years, and imposing 120 days in jail as a condition of probation.  The court did not impose a conditional-release term on the record at sentencing.  The judgment and warrant of commitment, however, noted that Nokes was subject to five years of conditional release.

Nokes’ probation was revoked seven months later.  The court executed the agreed upon sentence and imposed a five-year conditional-release term.  Nokes filed an appeal in which he challenged only the grounds for the revocation.  In December 2002, 22 months after the revocation hearing, Nokes filed a postconviction petition challenging the addition of the conditional-release term and requesting modification of his sentence.  The district court denied the petition, concluding that Nokes’ guilty plea was motivated by the opportunity it gave him for a stayed sentence, not by any promise as to the length of his prison term.  This appeal followed.

D E C I S I O N

 

            Nokes argues that the district court’s addition of the 5-year conditional-release term at the probation-revocation hearing breached the plea agreement, and that he is, therefore, entitled to withdraw his plea or to have his plea modified under State v. Wukawitz, 662 N.W.2d 517 (Minn. 2003).  The supreme court has outlined the standard of review as follows:  “What the parties agreed to involves an issue of fact to be resolved by the district court.  Issues involving the interpretation and enforcement of plea agreements, however, are issues of law that we review de novo.”  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).

            The prosecutor at the guilty plea hearing outlined the plea agreement as follows:  (1) Nokes would plead guilty to third-degree criminal-sexual conduct; (2) the other counts would be dismissed; (3) Nokes would submit to a sex offender assessment; and (4) if the assessment concluded Nokes was amenable to treatment, the prosecutor would recommend a downward dispositional departure from the presumptive 48-month sentence.  The agreement provided only for a recommendation as to a dispositional departure but assumed the sentence duration would be the presumptive 48 months. 

            The supreme court in Brown held that when a plea rests “in any significant degree” on a promise by the state, that promise must be fulfilled or the defendant has a right to withdraw the plea.  Id. (citation omitted).  In Brown, the plea agreement was similar to the agreement here, calling for a stayed sentence (apparently a stay of imposition) with sex offender treatment as a condition of probation.  Id. at 672.  If  Brown was not accepted into treatment, he would receive a “guidelines” sentence, and if he failed in treatment, he would receive a double departure.  Id.   The Brown court agreed with the district court’s conclusion that “it was the promise of an opportunity for probation and rehabilitation, and not the presumptive executed sentence, that induced Brown’s plea.”  Id. at 675.

But Brown is distinguishable from this case.  In Brown, the parties did not discuss the length of the presumptive executed sentence, whereas here the prosecutor stated that the presumptive sentence was 48 months.  Therefore, Nokes had a much firmer expectation of a particular sentence duration than did the defendant in Brown.  Although the opportunity for a dispositional departure certainly was the major factor in Nokes’ plea, the question is whether the plea rested “in any significant degree,” id. at 674, on the expectation of a 48-month sentence duration.  We conclude that it did.

A defendant’s plea may be induced by the opportunity for probation while still resting significantly on the promised duration of the sentence if later executed.  See State v. Jumping Eagle, 620 N.W.2d 42, 44 (Minn. 2000) (holding that plea was partly induced by opportunity for probation but also significantly induced by length of maximum executed sentence).  Nokes, who was charged with first-degree criminal sexual conduct, which carried a presumptive-sentence duration of 86 months, was assured of spending no more than 48 months in prison.  This served as a favorable “cap” on his sentence, a significant inducement even though the agreement gave him an opportunity to avoid prison altogether.

            The state argues that because Nokes did not raise his challenge to the addition of the conditional-release term in his probation-revocation appeal, that claim is barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).  Knaffla holds that “where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for post conviction relief.”  Id. at 252, 243 N.W.2d at 741 (emphasis added).  Here, Nokes took a probation revocation appeal, not a direct appeal. 

The state cites no authority holding that failure to raise a claim in a probation-revocation appeal, other than a challenge to the probation revocation itself, prevents its consideration in a later postconviction proceeding.  A probation-revocation appeal is a challenge to the revocation, not the conviction, and therefore does not affect a defendant’s “one right of review” of the conviction at issue in KnafflaSee id.

            A defendant’s delay in seeking relief is a factor to be considered in determining whether postconviction relief should be granted.  Sykes v. State, 578 N.W.2d 807, 814 (Minn. App. 1998), review denied (Minn. July 16, 1998).  Nokes waited from February 12, 2001, when the conditional-release term was imposed at the probation-revocation hearing, until December 19, 2002, when he filed his postconviction petition, to raise his challenge.  This was a delay of a little more than 22 months, which is significant but not sufficient to bar relief.

            Nokes, who sought only sentence modification in his postconviction petition, now seeks a reversal and remand to allow him to move to withdraw his guilty plea.  The supreme court in Wukawitz made it clear “that plea withdrawal should be the first option considered when the imposition of conditional release after the fact would violate the plea agreement.”  662 N.W.2d at 527.  Only if the state can show it would be unduly prejudiced by withdrawal of the plea should the court modify the sentence.  Id.  Therefore, we remand to allow Nokes to move to withdraw his plea, and to give the state an opportunity to show undue prejudice.

            Reversed and remanded.