This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Sean Michael Fenske,



Filed February 10, 2004


Lansing, Judge


Winona County District Court

File No. K2-99-553



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


Charles E. MacLean, Winona County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN  55987 (for respondent)


Bradford Colbert, Assistant State Public Defender, LaTosha Perry (certified student attorney), Room 254, 875 Summit Avenue, St. Paul, MN  55105 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Lansing, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Sean Fenske challenges the district court’s order denying his postconviction motion to withdraw his guilty plea or vacate his conditional-release term, arguing that the imposition of the mandatory, five-year conditional-release term exceeded the upper limit of his plea agreement.  The district court found that Fenske entered a plea of guilty without a plea agreement.  Because the district court’s findings are fully supported by the evidence and the denial of postconviction relief was not an abuse of discretion, we affirm.


            Winona County charged Sean Fenske with one count of third-degree criminal sexual conduct, and on January 3, 2000, Fenske pleaded guilty as charged.  Fenske signed a plea petition, which he submitted to the court at his plea hearing.  On the record at the hearing, the court thoroughly reviewed the petition with Fenske.  Both Fenske’s attorney and the prosecutor asked Fenske supplemental questions about his plea.

At the outset of the plea hearing, Fenske’s lawyer told the court, “There’s no plea agreement.  Mr. Fenske is going to be pleading guilty to the one charge in the complaint.”  Reading from the petition, the court noted, “[T]here is no agreement affecting this intended plea.”  He then asked Fenske, “Is that correct?”  Fenske replied, “Yes, your honor.”  Fenske acknowledged that he understood the statutory maximum sentence for his offense was fifteen years.  The court told Fenske that a mandatory minimum sentencing provision applied to the offense and said that “in all likelihood the sentencing guidelines will be followed in this case.”

            Fenske’s attorney indicated that Fenske intended to request both a dispositional and durational departure at sentencing.  The court stated its understanding that the departure request was not a joint request.  Fenske’s attorney confirmed the court’s understanding saying, “That’s correct.  That’s why there was no plea agreement . . . .”

            The presentence-investigation report calculated Fenske’s guidelines sentence as forty-three months, executed, and recommended against a sentencing departure.  The district court sentenced Fenske on January 31, 2000, to a thirty-nine month executed sentence and filed a sentencing departure report, indicating a downward durational departure from forty-three to thirty-nine months.  The departure essentially gave Fenske the benefit of the doubt on his criminal-history score by excluding one offense.  The sentence did not include the mandatory conditional-release term, and conditional release was not mentioned in the plea or sentencing process.

            The Department of Corrections (DOC) sent a letter on February 16, 2000, to the sentencing judge, asking if it was the court’s intention to attach a conditional-release term to Fenske’s sentence.  The sentencing judge responded with a handwritten note, stating that he intended to impose a five-year conditional-release term.  In August 2000, the DOC sent the sentencing judge another letter informing him that an order amending Fenske’s original sentence was required.  The sentencing judge then filed an amended sentencing order on August 11, 2000, that included a five-year conditional-release term.

            Fenske filed a motion on April 23, 2003, to withdraw his guilty plea or to vacate the conditional-release term.  The memorandum supporting his withdrawal motion states that Fenske entered a “plea without a written plea agreement, but with the understanding that he would probably receive the presumptive guidelines sentence.”  In an accompanying affidavit, Fenske stated that when he entered his guilty plea it was his understanding that he would “receive the [g]uidelines sentence” for his offense.  Fenske further stated that because of confusion on his criminal-history score he had been unsure of the exact guidelines sentence at the time of the plea.

            Following a postconviction hearing on May 8, 2003, the court denied Fenske’s motion.  The court found that Fenske’s plea was entered without a plea agreement, that the addition of the conditional-release term did not increase Fenske’s sentence beyond the statutory maximum for his offense, and that the sentencing court’s indication that Fenske would receive a guidelines sentence did not constitute a condition of the plea or a promise of a specific sentence.  This appeal follows.


We review decisions of a postconviction court for abuse of discretion.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  A postconviction court’s factual findings will be sustained if they are supported by sufficient evidence, but we make an independent determination of the law as it applies to the facts.  Doan v. State, 306 Minn. 89, 91-92, 234 N.W.2d 824, 826-27 (1975).  The existence and the terms of a plea agreement are issues of fact to be resolved by the district court.  State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).

It is undisputed that Fenske’s guilty plea to third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (1998), resulted in a conviction that requires a conditional-release term as part of the sentence.  See Minn. Stat. § 609.109, subd. 7 (2002) (listing offenses requiring conditional-release term).  Imposition of a conditional-release term on the statutorily specified offenses is mandatory and nonwaivable.  See Minn. Sent. Guidelines cmt. II.E.05; State v. Humes, 581 N.W.2d 317, 319 (Minn. 1998) (noting that conditional release is mandatory under statute).  A sentence that does not contain the required conditional-release term is unauthorized by law and may be corrected after sentencing.  See Minn. R. Crim. P. 27.03, subd. 9 (noting that “the court at any time may correct a sentence not authorized by law”); Humes, 581 N.W.2d at 321. 

Fenske argues that he is entitled to withdraw his guilty plea or have his sentence modified because the district court violated the terms of his plea agreement by adding a conditional-release term.  The postconviction court rejected Fenske’s claim and specifically found that Fenske entered a plea without a plea agreement.  The evidence fully supports the district court’s findings.

The record provides no evidence of plea negotiations, an agreed-on sentence, or a plea agreement presented to or accepted by the district court.  Fenske entered a guilty plea to the sole charge in the complaint.  His plea petition listed no agreement between him and the prosecution.  At the plea hearing, Fenske’s attorney twice stated that there was no plea agreement and, when specifically asked by the judge, Fenske himself said that there was no agreement.  Consistent with the absence of a plea agreement, the district court indicated that it intended to impose a guidelines sentence.  The presentence-investigation report stated that there was no plea agreement.  The district court sentenced Fenske to thirty-nine months, executed, a four-month downward departure from the guidelines sentence.  The record provides no evidence of a plea agreement.

In his memorandum supporting his plea-withdrawal motion, Fenske states that he entered a “plea without a written plea agreement, but with the understanding that he would probably receive the presumptive guidelines sentence.”  This statement is consistent with the evidence in the record, but it confirms the absence of a plea agreement rather than the existence of one.  Further, it suggests that Fenske believed he had a “plea agreement” with the judge, not the prosecution.  Although a sentencing court may indicate a likely sentence based on what it knows about a defendant’s case, this is not a negotiated plea agreement.  See Minn. R. Crim. P. 15.04 (providing that prosecutor and defense counsel may engage in plea discussions which may be accepted or rejected by the district court).

We recognize that in certain circumstances a disparity between what a sentencing court tells a defendant about his sentence prior to a plea and the actual sentence after the plea may form a basis for plea withdrawal.  Entry of a plea involves waiver of the constitutional right to a trial, and the right to plea withdrawal is implicated if the plea is not accurate, voluntary, and intelligent.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  Although Fenske does not raise this as a separate issue, he appears to argue that his plea was not intelligent because he did not understand the consequences of his plea.

The district court told Fenske that he would likely receive the guidelines sentence; the court imposed the guidelines sentence with a slight modification that worked in Fenske’s favor; and the imposition of the conditional-release sentence, albeit at a later date, was consistent with the guidelines at the time of the plea.  The supreme court has addressed due process arguments in cases involving delayed imposition of a conditional-release term.  In Humes the court held that correcting a sentence to add an omitted conditional-release term after the defendant had served six months did not violate the defendant’s due process rights.  Humes, 581 N.W.2d at 318.  In State v. Calmes, 632 N.W.2d 641, 648 (Minn. 2001), the court reasoned that a defendant is on notice of the conditional-release term because citizens are presumed to know the law.  And in Brown the court indicated that because the guidelines correctly set forth the conditional-release term for the specified offenses, a sentence on those offenses includes the conditional-release term.  Brown, 606 N.W.2d at 673 n.3.

Brown specifically addresses whether the defendant’s lack of knowledge about a conditional-release term renders a guilty plea unintelligent.  The court concluded that a guilty plea is not unknowing or unintelligent when the sentence is corrected to include a conditional-release term that is still less than the sentence the defendant knew he risked when he entered his guilty plea.  Id. at 675.  In this respect, Fenske’s knowledge is parallel to Brown’s knowledge.  Brown understood that he could receive a 172-month prison sentence.  His corrected sentence resulted in a 146-month prison term.  Fenske’s corrected sentence, at most, amounts to thirty-nine months plus five years or an aggregate of about eight years.  This is significantly less than the fifteen years that Fenske acknowledged could be imposed on his offense.  Applying the supreme court’s standards, Fenske’s plea was not unknowing or unintelligent.