This opinion will be unpublished and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

A03-310

 

 

Christopher Daniel Rux, petitioner,

Respondent,

 

vs.

 

State of Minnesota,

Appellant.

 

 

Filed January 20, 2004

Reversed

Poritsky, Judge*

 

 

Pennington County District Court

File Nos. K3-97-25, K8-97-36, KX-97-37, K1-97-38

 

 

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

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

David Olin, Pennington County Attorney, 101 North Main Avenue, P.O. Box 396, Thief River Falls, MN 56701 (for appellant)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            Respondent Christopher Daniel Rux petitioned the district court for postconviction relief, seeking to have his sentence modified or, in the alternative, to withdraw his guilty plea.  The court determined that when Rux agreed to plead guilty, he did not understand that he would receive a five-year conditional-release term added to his sentence, and the court modified his sentence.  Appellant State of Minnesota argues that the district court erred in granting relief, because (1) Rux’s petition was not timely, and (2) even if the petition were timely, the imposition of a conditional-release term at the sentencing hearing did not entitle Rux to a modification of his sentence.  We agree with the state and reverse. 

FACTS

            In February 1997, pursuant to a plea agreement, Rux pleaded guilty to two counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a), (g) (1996); one count of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd 1(b) (1996); and one count of fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(b) (1996).  In return, the state recommended that Rux receive concurrent sentences and a 68-month prison term.  At the plea hearing, the district court twice told Rux that the sentences proposed by the state were “just recommendations,” and stated,  “in the event I decide to depart from your plea agreement, I will notify you and you’ll be entitled to withdraw your plea.” 

Although Rux’s criminal sexual conduct convictions required that his sentence include a 5-year conditional-release term, see Minn. Stat. § 609.346, subd. 5(a) (1996) (now codified as amended at Minn. Stat. § 609.109, subd. 7 (2002)), there is no record of any discussion of a conditional-release term as part of the plea negotiations; nor is there a copy of Rux’s written plea petition in the record. 

            In March 1997, the district court sentenced Rux to an executed prison term of 68 months, explaining that appellant would serve at least two-thirds of that time in prison and the remainder on supervised release.  The court then imposed the conditional-release term.  The court stated:

And, in addition, an additional five years, because these are criminal sexual conduct cases.  This is assuming that you commit—that five years is on additional probation.  This is assuming you commit no disciplinary offense that may result in the execution of a disciplinary confinement period.  In other words, if you commit a disciplinary offense in or out of prison, your actual time served in prison could be extended the entire 68 months, plus five years of conditional release.

 

Neither Rux nor his attorney inquired into or objected to the imposition of the conditional-release term, which was followed by a colloquy between the court, the prosecutor, and defense counsel to address jail credit, fines, and sex-offender registration.  The court then twice asked defense counsel, “Anything further?” and defense counsel answered in the negative.  

Almost six years later, in February 2003, Rux filed a petition requesting the district court to either modify his sentence or permit him to withdraw his guilty plea, arguing that the imposition of a conditional-release term violated the plea agreement whereby he agreed to a 68-month sentence; he also argued that his plea was not intelligent because he was not informed at the plea hearing that his sentence would include the conditional-release term.  In support of his petition, Rux submitted an affidavit stating that he did not understand the consequences of the plea at the time it was made and that he was not informed by his attorney or by the court at the sentencing hearing that he could withdraw his plea.  Rux’s attorney filed an affidavit stating that he had failed to inform Rux prior to the sentencing hearing that conditional release would be part of the sentence. 

The district court granted Rux’s petition, reasoning that because Rux did not receive the sentence he was promised when he pleaded guilty, his right to due process was violated.  The court stated that the sentence was manifestly unjust because Rux did not learn until the sentencing hearing that his maximum period of incarceration—including the conditional-release term—would exceed the 68-month recommended sentence negotiated at the plea hearing.  The court then noted that allowing Rux to withdraw his guilty plea would be unduly prejudicial to the state, so the court modified Rux’s sentence by reducing it to 68 months, including the conditional-release term.  The state appeals.

D E C I S I O N

The interpretation and enforcement of plea agreements present issues of law, which this court reviews de novo.  State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000).  While a defendant does not have an absolute right to withdraw a guilty plea, a court must allow the withdrawal of a plea if the request for withdrawal is timely and 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).  A guilty plea is intelligent if the defendant understands the charges, his rights under the law, and the direct consequences of pleading guilty.  Id.  A conditional-release term is a direct consequence of a guilty plea.  State v. Henthorne, 637 N.W.2d 852, 856 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002).  “[I]f a guilty plea is induced by a government promise, such a promise must be fulfilled or due process is violated.”  State v. Wukawitz, 662 N.W.2d 517, 522 (Minn. 2003).  “When a guilty plea is induced by unfulfilled or unfulfillable promises, the voluntariness of the plea is drawn into question, and due process considerations require that the defendant be given the opportunity to withdraw his plea.”  Id. at 526 (citation omitted).

 On appeal, the state does not argue that Rux’s plea¾at least at the time he entered it¾was knowing and intelligent.  Instead, in support of its claim that the district erred by reducing Rux’s sentence, the State makes two arguments.  First, the state argues that Rux’s petition should be denied because it is untimely.  Second, the state argues, even if the petition were timely, the imposition of a conditional-release term at the sentencing hearing does not entitle Rux to a modification of his sentence. 

In connection with its argument that Rux’s petition was untimely, the state makes two points:  First, “the untimeliness of [Rux’s] motion to withdraw his guilty plea is dispositive;” that is, untimeliness acts as an absolute bar.  Second, the state contends, “delay weigh[s] against granting [Rux’s] requested relief.”  As to the first point, the state did not argue before the district court that timeliness should serve as an absolute bar.  Therefore we do not reach the issue here.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that generally, an appellate court will address only those issues that the record shows were presented to and considered by the district court in making its decision).  The state did, however, point out to the district court, “No objection [to the sentence] was made until over 5 ½ years later.”  Consequently, we are free to consider delay as a factor to be considered in granting postconviction relief.

We concur with the district court that Rux’s plea was not knowing or intelligent.  We disagree, however, with the conclusion that Rux has a right to have his sentence modified, and we reverse.  In our opinion, the matter is governed by the court’s direction in Wukawitz, “When a guilty plea is induced by unfulfilled . . . promises . . . due process considerations require that the defendant be given the opportunity to withdraw his plea.”   662 N.W.2d at 526 (citation omitted).

We conclude that the following considerations are persuasive.  First, at sentencing, Rux did have an opportunity to withdraw his plea.  Contrary to the cases where the conditional release term was imposed after sentencing, here the court imposed the term at the time of sentencing and carefully explained its implications for Rux’s sentence.  As the state argues, the supreme court cases that have allowed defendants to withdraw guilty pleas under somewhat similar circumstances all involve the imposition of the conditional- release term after sentencing.  See Wukawitz, 662 N.W.2d at 528-29 (allowing modification of sentence where conditional-release term was added two years after the original sentence); Jumping Eagle, 620 N.W.2d 42, 43 (allowing plea withdrawal or sentence modification where conditional-release term not imposed until after sentencing, creating sentence exceeding upper limits of plea agreement).  In Wukawitz, the court made repeated reference to the fact that if the conditional-release term is imposed after sentencing, the defendant has a right to withdraw his plea.  662 N.W.2d at 520, 521 (holding “that in those limited circumstances where imposition of a conditional release term after sentencing would violate the plea agreement, the district court may allow the defendant to withdraw this plea,” and noting that “[t]he central issue in this case is whether a defendant has an absolute right to withdraw a plea if a conditional release term is later added that exceeds the agreed-upon sentencing cap . . . .”) (emphasis added).

Moreover, here, after the sentence was imposed and while the parties were still in open court, there was a colloquy between the court, the defense counsel, and the prosecutor, at the conclusion of which the court asked the parties if there were anything further that should be considered.  Neither Rux nor his counsel questioned the conditional-release term when it was announced, sought to withdraw Rux’s plea at that time, or responded to the court’s repeated requests for any further remarks. 

Rux states in his affidavit that he did not understand the implications of conditional-release.  We credit his statement.  Even though the court carefully explained the implications of the conditional-release term and gave the parties an opportunity to raise any questions, given the circumstances, it is not surprising that Rux did not, on his own initiative, question the sentence.  Rux also submits the affidavit of his trial counsel, in which counsel states, “[W]e knew very little about how conditional release was defined and what the ramifications were when it was imposed.”  Although counsel says that conditional release was new at the time, the court very carefully explained the ramifications, and counsel does not explain why, following the court’s explanation, he did not at least question the court about the sentence or advise Rux that the matter was not part of the plea agreement.  In any event, the record is silent as to why Rux waited almost six years to bring the present proceeding; thus, whatever persuasive force Rux’s lack of understanding and counsel’s lack of action might otherwise have had is attenuated by the almost six-year, unexplained delay between the sentencing and the petition for postconviction relief.  This leads us to the second persuasive consideration.

As the state argues, delay is a factor that weighs against granting relief.  Although we do not address the issue of whether delay is an absolute bar to Rux’s petition, we do consider that delay may weigh against granting the relief requested.  See Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).  (“Certainly, delay is one relevant factor against granting relief, and in extreme cases may justify denial of relief.”)  In his affidavit, Rux says, “If I had known that I was pleading guilty to 128 months instead of 68 months, I never would have entered a guilty plea.  Instead, I would have gone to trial.”  But he does not explain why he waited almost six years to come forward to withdraw his plea of guilty and go to trial.  The district court found that withdrawal of Rux’s plea would unduly prejudice the state, apparently due to the lapse of time since Rux’s offenses.  By the same token, we conclude that the same lapse of time weighs heavily against granting relief in this case.        

Finally, we note that the district court specifically informed Rux at the plea hearing that the sentences tendered by the state in exchange for his guilty plea were “recommendations,” not specific agreements.  “[A] defendant who pleads guilty in exchange for an agreed-upon sentence faces different consequences than a defendant who exchanges a guilty plea for the state's recommendation of a certain sentence.”  Perkins, 559 N.W.2d at 687.  Where “plea agreements contemplate recommendations by the parties without binding the court to a specific sentence . . . the failure of the court to follow such recommendations does not violate due process.”  Wukawitz, 662 N.W.2d at 522 n.3. 

Both parties have cited unpublished cases in support of their positions.  While such cases may be instructive in certain circumstances, they are not binding precedent, Minn. Stat. § 480A.08, subd 3(b) (2002), and because they have reached varying conclusions on the issues in this case, we decline to consider them.

Finally, we note that in Wukawitz, the court mandated 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.  The court went on to say, “Nonetheless, if the state would be unduly prejudiced by the withdrawal of [the defendant’s] plea, the district court may modify [the] sentence.”  Id.  Thus, the postconviction court is initially to determine whether the defendant is entitled to withdraw the guilty plea.  If the court concludes that the defendant has that right, then the court must determine whether allowing the withdrawal would unduly prejudice the state, and if it would, then the court is to modify the sentence.  Here, we have determined that Rux is not entitled to withdraw his plea; therefore we need not address the issue of whether withdrawal would prejudice the state.

Although at the time when Rux entered his plea of guilty he was not aware that a conditional-release term would be imposed at sentencing, in light of the factors we have deemed to be persuasive, we conclude that Rux does not have a due process right to withdraw his plea or have his sentence modified.  Consequently, we reverse the ruling of the trial court and direct that Rux’s postconviction petition be in all respects denied. 

            Reversed.

 

 



*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.