This opinion will be unpublished and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

A03-990

 

Danny Daniels, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed March 9, 2004

Affirmed

Peterson, Judge

 

Fillmore County District Court

File No. K297658

 

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

 

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

 

Brett A. Corson, Fillmore County Attorney, Todd E. Pierce, Assistant County Attorney, P.O. Box 307, Preston, MN  55965 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from an order denying a postconviction petition challenging a 1998 conviction of and sentence for fourth-degree criminal sexual conduct, appellant Danny Daniels argues that (1) the postconviction court erred in ruling that the petition was untimely; (2) the addition of a five-year conditional-release term violated the plea agreement, which called for a sentence of one year and one day and did not mention conditional release; and (3) he was denied the effective assistance of counsel because his attorney failed to inform him of the conditional-release term.  We affirm.

FACTS

            Appellant was charged by complaint with one count of fourth-degree criminal sexual conduct, two counts of fifth-degree criminal sexual conduct, one count of furnishing alcohol to underage persons, and one count of indecent exposure.  Appellant pleaded guilty to the charges of fourth-degree criminal sexual conduct and furnishing alcohol to underage persons, and the remaining charges were dismissed.

            The charges arose out of an incident involving appellant, his two sons (ages 12 and 14 at the time of the incident), and two of the sons’ female friends (both age 14 at the time of the incident).  At the plea hearing, appellant testified that he was concerned about his sons being required to testify against him if the case went to trial, that he did not want to put his sons in that situation, and that pleading guilty to something less than all of the charges would be worthwhile to save his sons the embarrassment resulting from a trial.  Appellant entered a Norgaard plea, testifying that he did not recall the incident but believed the children’s accusations against him and understood that the evidence was sufficient to convict him of all charges.  The plea petition signed by appellant states that “the maximum penalty that the court could impose for this crime . . . is imprisonment for 10 years.”  The district court accepted appellant’s plea and ordered a presentence investigation (PSI).

            The PSI report recommended the presumptive guidelines sentence of a stayed term of one year and one day in prison.  At the sentencing hearing, appellant’s counsel stated that he had discussed the PSI report and accompanying sentencing worksheet with appellant.  Both the prosecutor and defense counsel agreed that the guidelines sentence was appropriate.  The district court sentenced appellant to prison for one year and one day, with execution stayed on the conditions that appellant comply with specified probation conditions, including completion of sex-offender treatment, following the recommendations of a chemical-dependency assessment, and complying with statutory requirements for sex-offender registration.  Following the sentencing hearing, the district court issued a sentencing order that included the sentence and probation conditions stated at the sentencing hearing and also imposed a five-year conditional-release term.  The sentencing order, consistent with the PSI recommendation, stayed execution for a period of ten years.

            Following a July 1999 probation-revocation hearing, the district court issued an order finding that appellant had violated his probation terms by leaving the state without permission.  The district court vacated the stay of execution and committed appellant to the commissioner of corrections for a period of one year and one day.  After completing his sentence, appellant was released from prison on the five-year conditional-release term.  In September 2002, appellant’s conditional release was revoked, and he returned to prison.

            In January 2003, appellant filed a petition for postconviction relief seeking to withdraw his guilty plea or, alternatively, to amend the conditional-release term to time already served.  Appellant argued that his plea was not intelligently made because he would not have pleaded guilty if he had known about the conditional-release term.  Appellant also argued that he should be allowed to withdraw his plea on the ground that trial counsel’s failure to inform him of the conditional-release term was ineffective assistance of counsel.  Appellant testified that he would not have pleaded guilty if he had known about the five-year conditional-release term.

            Following the postconviction hearing, the district court denied appellant’s petition as untimely.  The finding of untimeliness was based in part on the court’s finding of prejudice to the state:

            The Court also finds that allowing [appellant] to withdraw his plea of guilty would unduly prejudice the State. . . . Here, the incident happened almost 5 years ago.  The victim was a 14 year old female.  Because the victim was so young when the incident happened, and because the incident was very tragic, it would be hard for her to remember specific facts as to the incident between her and the [appellant].  Likewise, the [appellant’s] sons were also much younger when the incident happened and it would be difficult for them to remember.

 

The district court also found that appellant failed to prove his ineffective-assistance claim by failing to show that he was prejudiced by his attorney’s failure to inform him of the conditional-release term:

[T]he Court does not find sufficient evidence that but for counsel’s errors [appellant] would not have pleaded guilty.  With counsel’s assistance, [appellant] entered a plea and had an opportunity to avoid serving any prison time.  On February 23, 1998, [appellant] signed a Petition[] to Enter a Plea of Guilty in Felony or Gross Misdemeanor Case Pursuant to Rule 15 which stated that the [appellant] felt he had sufficient time to discuss his case with his attorney and he was satisfied that his attorney represented his interests and fully advised him.  The Petition also stated that if the Court did not approve the agreement he had an absolute right to withdraw his plea of guilty and have a trial.  [Appellant] reiterated these agreements on the record to the Court.  By pleading guilty, [appellant] was also able to alleviate the pain of having his sons testify against him.  The Court finds it difficult to believe that had he been made aware of the conditional release term when he pleaded guilty, he would have gone to trial and wouldn’t have cared if his sons testified against him.

 

This appeal is from the order denying postconviction relief.

D E C I S I O N

            When seeking postconviction relief, a petitioner “has the burden of establishing, by a fair preponderance of the evidence, facts [that] warrant a reopening of the case.”  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).  Review of postconviction proceedings is limited to whether the record contains sufficient evidence to sustain the findings of the postconviction court.  Id. Absent an abuse of discretion, a postconviction court’s decision will not be disturbed.  Id.

1.         Withdrawal of plea

            A district court has broad discretion in deciding whether to grant a defendant’s motion to withdraw a guilty plea, and a reviewing court will not reverse a district court’s denial of such a motion absent a clear abuse of discretion.  Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998).  A district court “shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.”  Minn. R. Crim. P. 15.05, subd. 1.  “A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because made subsequent to judgment or sentence.”  Chapman v. State, 282 Minn. 13, 17 162 N.W.2d 698, 701 (1968) (quoting American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty (tentative draft Feb. 1967), § 2.1).

            The district court’s denial of appellant’s petition as untimely was based in part on its finding that allowing appellant to withdraw his plea would prejudice the state because it would be difficult for the victim and appellant’s sons to remember specific facts regarding the offense committed by appellant.  The record, however, contains no factual basis supporting the district court’s finding of prejudice.  Moreover, when the imposition of a conditional-release term results in violation of the constitutional dictates that a plea be accurate, voluntary, and intelligent, prejudice to the state can be alleviated by reduction of the conditional-release term.  State v. Wukawitz, 662 N.W.2d 517, 528-29 (Minn. 2003).

            However, this court may affirm the denial of a petition for postconviction relief on grounds other than that relied on by the postconviction court.  See Hummel v. State, 617 N.W.2d 561, 563 (Minn. 2000) (affirming postconviction court’s decision on alternative grounds).  In addition to making a timely motion, a defendant must show that plea withdrawal is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1.  “A valid guilty plea must be accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).”  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003) (quotation omitted).  “Manifest injustice occurs if any of these three requirements have not been met.”  Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002).

            Daniels argues that the conditional-release term violated the plea agreement.

The voluntariness requirement insures that a guilty plea is not entered because of any improper pressures or inducements.  When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.  Allowing the government to breach a promise that induced a guilty plea violates due process. . . .

            . . . .

 

. . . In determining whether a plea agreement was violated, courts look to what the parties to the plea bargain reasonably understood to be the terms of the agreement.  What the parties agreed to involves an issue of fact to be resolved by the district court. . . . While the government must be held to the promises it made, it will not be bound to those it did not make.

 

State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (quotations and citations omitted).

Although defense counsel discussed with appellant the possibility of a sentence of one year and one day and the district court found that the parties understood that appellant would receive the guidelines sentence, the plea agreement contained no agreement on sentencing.  Appellant testified at the postconviction hearing that he would not have pleaded guilty if he had been informed of the conditional-release term.  But at the plea hearing, appellant testified that he was pleading guilty in exchange for the dismissal of some of the charges and to spare his sons from having to testify against him and endure the embarrassment of a trial.  The district court found that appellant’s testimony at the postconviction hearing lacked credibility and that he was induced to enter the plea agreement for the reasons stated at the plea hearing.  Under these circumstances, the conditional-release term did not violate the plea agreement.  Compare Brown, 606 N.W.2d at 675 (affirming district court’s finding that it was the promise of an opportunity for probation and rehabilitation, and not the presumptive executed sentence, that induced Brown’s plea), with Wukawitz, 662 N.W.2d at 522 (plea agreement established that in exchange for a plea of guilty to two separate counts of criminal sexual conduct, defendant would serve two consecutive terms of imprisonment, totaling 140 months; defendant’s waiver of constitutional rights and guilty plea were induced by the promise of a maximum sentence that the district court agreed to honor by its acceptance of the plea).

Appellant also argues that his plea was not intelligent because he was unaware of the conditional-release term.

The purpose of the requirement that the plea be intelligent is to insure that the defendant understands the charges, understands the rights he is waiving by pleading guilty, and understands the consequences of his plea.  A defendant need not be advised of every consequence for his plea to be intelligent, however. . . . [I]t is the direct consequences of the guilty plea to which we refer . 

 

Kaiser, 641 N.W.2d at 903 (quotations omitted).  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).

            The plea petition put appellant on notice that he faced a maximum possible sentence of ten years imprisonment.  The imposition of the conditional-release term did not result in a sentence that exceeded that upper limit.  Appellant’s plea, therefore, was intelligent.  See Brown, 606 N.W.2d at 675 (holding that plea was knowingly and understandingly made when defendant understood he risked an executed double-durational-departure sentence of 172 months while the corrected sentence, including the conditional-release term, would, at worst, lead to an aggregate sentence of less than 172 months).  Appellant did not submit proof that plea withdrawal is necessary to correct a manifest injustice.

2.         Ineffective assistance of counsel

            To prevail on an ineffective-assistance-of-counsel claim, appellant “must demonstrate that counsel’s representation fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  In the context of guilty pleas, the second part, or “prejudice” requirement of the ineffective-assistance-of-counsel test,

focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.  In other words, in order to satisfy the “prejudice” requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

 

Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

            Even if counsel’s failure to inform appellant about the conditional-release term was ineffective assistance, appellant must also prove prejudice.  As already discussed, at the plea hearing, appellant testified that he was pleading guilty in exchange for the dismissal of some of the charges and to spare his sons from having to testify against him and endure the embarrassment of a trial.  And, as the district court found, the plea agreement gave appellant an opportunity to avoid serving any prison time.  The district court found incredible appellant’s testimony at the postconviction hearing that he would not have pleaded guilty if he had been informed of the conditional-release term.  The court found that appellant was induced to enter the plea agreement for the reasons stated at the plea hearing.  “We defer to the fact-finder on determinations of credibility.”  State v. Watkins, 650 N.W.2d 738, 741 (Minn. App. 2002).

            Affirmed.