This opinion will be unpublished and

may not be cited except as provided by

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






Jeremy Lundemo, petitioner,





State of Minnesota,



Filed March 30, 2004


Lansing, Judge


Roseau County District Court

File No. K1-00-450



John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)


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


Michelle E. Moren, Roseau County Attorney, Roseau County Courthouse, 606 Fifth Avenue Southwest, Room 10, Roseau, MN  56751 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Jeremy Lundemo appeals the district court’s denial of his petition for postconviction relief, arguing that the imposition of a mandatory, five-year conditional-release term exceeded the upper limit of his plea agreement, and it is therefore manifestly unjust to deny withdrawal of his plea or modification of his sentence.  This argument, on virtually identical material facts, was raised and rejected in State v. Rhodes, ___ N.W.2d ___ (Minn. Mar. 4, 2004).  Because Rhodes governs the resolution of this case, we affirm.


            Roseau County charged Jeremy Lundemo with two counts of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2000).  On July 31, 2000, Lundemo pleaded guilty to one count of third-degree criminal sexual conduct in exchange for the state’s agreement to dismiss the second count, and with the understanding that he would receive a guidelines sentence of thirty-eight months imprisonment.  The district court accepted the agreement and stated that if the presentence investigation report came back with a guidelines sentence of more than thirty-eight months, Lundemo would be permitted to withdraw his guilty plea.

            The presentence investigation report recommended that Lundemo receive the guidelines sentence of thirty-eight months.  The report also recommended that Lundemo receive an additional five years of conditional release pursuant to the conditional-release statute.  Lundemo’s attorney acknowledged on the record at sentencing that he had received a copy of the presentence report.

            At the sentencing hearing the district court committed Lundemo to the commissioner of corrections for thirty-eight months.  The prosecutor reminded the court that Lundemo “is also to receive an additional five years of conditional release pursuant to statute.”  The district court responded, “And there will be an additional period of five years of conditional release pursuant to statute because of the convictions that have been entered here today.”  The five-year conditional-release term also appeared in bold print in the Criminal Judgment and Warrant of Commitment filed August 21, 2000.

            On March 17, 2003, Lundemo filed a postconviction petition requesting that he be permitted to withdraw his plea or that his sentence be modified because, at the time he entered his plea, he did not know that he would be subject to a five-year conditional-release term in addition to his thirty-eight month sentence.  The postconviction court found that Lundemo was not informed about the conditional release at the time he pleaded guilty.  The court found, however, that the statute that provides for conditional-release terms requires only that a defendant be told of conditional release at the time of sentencing.  On this basis, the postconviction court denied Lundemo’s requested relief and Lundemo appeals.


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).

A criminal defendant has no absolute right to withdraw a guilty plea once it is entered.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  But withdrawal of a plea will be allowed if the defendant proves withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1; Alanis, 583 N.W.2d at 577.  Manifest injustice exists when a defendant can show that a guilty plea was not “accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).”  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

It is undisputed that Lundemo’s guilty plea to third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2000), resulted in a conviction that requires a conditional-release term as part of the sentence.  See Minn. Stat. § 609.109, subd. 7 (2000) (listing offenses requiring conditional-release term).  Imposition of a conditional-release term on the statutorily specified offenses is mandatory and nonwaivable.  See State v. Humes, 581 N.W.2d 317, 319 (Minn. 1998) (noting conditional release is mandatory under statute); Minn. Sent. Guidelines cmt. II.E.05.  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 “[t]he court at any time may correct a sentence not authorized by law”); Humes, 581 N.W.2d at 321. 

Lundemo 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 the five-year conditional-release term at sentencing.  This claim, on materially identical facts, was raised and rejected in State v. Rhodes, ___ N.W.2d ___ (Minn. Mar. 4, 2004).

In Rhodes the supreme court held that the postconviction court did not abuse its discretion in determining that the defendant’s guilty plea was intelligently made even though he was not informed of the conditional-release term at the time he entered his plea.  The court reasoned that the plea was intelligent because (1) the conditional-release statute was enacted in 1992, years before entry of the plea, and thus the defendant was on notice both at the time of his plea and at sentencing that the conditional-release term for sex offenders was mandatory and could not be waived by the district court; (2) the supreme court had recognized the mandatory nature of conditional-release terms in 1998 in Humes, 581 N.W.2d at 319 and State v. Garcia, 582 N.W.2d 879, 881 (Minn. 1998); and (3) the postconviction court could infer from Rhodes’s failure to object to the presentence investigation’s recommendation, to the state’s request for the conditional-release term at the sentencing hearing, or to the court’s imposition of the conditional-release term, that Rhodes “understood from the beginning that the conditional-release term would be a mandatory addition to his plea bargain.”  State v. Rhodes, ___ N.W.2d ___, 2004 WL 396143, at *4 (Minn. Mar. 4, 2003).

            The facts in Rhodes are materially identical to the facts in this case.  Lundemo entered a negotiated plea that provided a thirty-eight month sentence, no reference was made to the conditional-release term at the time of the plea, the presentence investigation report recommended the addition of the five-year conditional-release term, the prosecutor stated at sentencing that the five-year conditional-release term applied, the sentencing court included the five-year conditional release in the sentence, and neither Lundemo nor his counsel objected to or questioned the addition of the conditional-release term.  Because Lundemo seeks the same postconviction relief as that sought by Rhodes, and because the facts underlying Lundemo’s postconviction petition do not vary in any material way from the facts underlying Rhodes’s postconviction petition, the holding in Rhodes is dispositive.