This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-802

 

Erik E. Thorson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 20, 2004

Affirmed

Willis, Judge

 

St. Louis County District Court

File No. K1-96-600758

 

John M. Stuart, State Public Defender, James R. Peterson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN† 55414 (for appellant)

 

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

 

Alan L. Mitchell, St. Louis County Attorney, Gary Bjorklund, Assistant County Attorney, 100 North 5th Avenue West, Duluth, MN† 55802 (for respondent)

 

††††††††††† Considered and decided by Schumacher, Presiding Judge; Willis, Judge; and Wright, Judge.

 

U N P U B L I S H E D†† O P I N I O N

WILLIS, Judge

††††††††††† Appellant pleaded guilty to one count of third-degree criminal sexual conduct, and the district court imposed a 26-month sentence, followed by a ten-year conditional-release term.† More than six years later, after appellant violated the terms of his conditional release and was reincarcerated, he filed a petition for postconviction relief, challenging the imposition of the conditional-release term.† The postconviction court denied appellantís petition without an evidentiary hearing, and he now appeals.† We affirm.

FACTS

In September 1996, appellant Erik Thorson, age 35, engaged in sexual intercourse with a 15-year-old girl.† Thorson was charged with one count of third-degree criminal sexual conduct, in violation of Minn. Stat. ß 609.344, subd. 1(b) (1996).† At the time, Thorson also had a charge of second-degree criminal sexual conduct pending against him.

In January 1997, pursuant to a plea agreement, Thorson entered a plea of guilty to the third-degree criminal-sexual-conduct charge; the written plea petition reflects Thorsonís agreement to plead guilty in exchange for dismissal of the other pending charge and the imposition of a maximum executed sentence of 26 months, a downward durational departure from the presumptive 36-month sentence.† At the plea hearing, Thorson was not told that a conditional-release term is mandatory for a person convicted of violating Minn. Stat. ß 609.344.†See Minn. Stat. ß 609.346, subd. 5 (1996) (providing for imposition of mandatory conditional-release term to sex-offenderís sentence).† But at the sentencing hearing in February 1997, the district court sentenced Thorson to 26 months, followed by a ten-year conditional-release term.

In March 2003, after Thorson violated the terms of his conditional release and was returned to prison, he filed a petition for postconviction relief, challenging the imposition of the conditional-release term.† He sought either to withdraw his plea or to have the district court modify his conditional-release term so that the maximum period of incarceration, including the period of incarceration that could be served for violation of his conditional release, would not exceed the maximum 26-month executed sentence contemplated by his plea agreement.† With his petition, Thorson filed an affidavit in which he asserted that before he pleaded guilty, he did not know that he would be subject to a conditional-release term.† He stated that the conditional-release term was not mentioned in the plea petition, his lawyer did not advise him of it before his plea, and it was not mentioned at the plea hearing.† The postconviction court denied Thorsonís petition, determining that Thorson had not established that his request was timely or that the denial of Thorsonís request to withdraw his plea would result in manifest injustice.† This appeal follows.

D E C I S I O N

A petitioner who seeks postconviction relief, ďhas the burden of establishing, by a fair preponderance of the evidence, facts [that] warrant a reopening of the case.Ē† 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 courtís decision will not be disturbed.† Id.

††††††††††† A criminal defendant retains no absolute right to withdraw a guilty plea once it is entered.† Perkins v. State, 559 N.W.2d 678, 685 (Minn. 1997).† A court will allow a defendant to withdraw a guilty plea after sentencing only upon a timely motion and proof that the withdrawal is necessary to correct a manifest injustice.† Minn. R. Crim. P. 15.05, subd. 1.† A motion ďis timely if made with due diligence, considering the nature of the allegations therein.Ē† Chapman v. State, 282 Minn. 13, 17, 162 N.W.2d 698, 701 (1968) (quoting A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty (tentative draft), ß 2.1).A postconviction court has broad discretion in deciding whether to grant a defendantís motion to withdraw a guilty plea, and a reviewing court will not reverse a postconviction courtís denial of such motion absent a clear abuse of discretion.† State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004).† Thorson and the state both maintain that this court should review the postconviction courtís order de novo because this case concerns the interpretation and enforcement of a plea agreement.† See State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).† But because Thorson is challenging the postconviction courtís findings that his request was untimely and that his plea was knowing and intelligent,we conclude that the postconviction courtís decision must be reviewed under an abuse-of-discretion standard.†

Thorson argues that he is entitled to withdraw his plea or to have his sentence modified because the district court violated the terms of his plea agreement by adding the conditional-release term at sentencing.† But a similar claim was recently raised and rejected in State v. Rhodes.† In Rhodes, the appellant pleaded guilty with the understanding that he would receive a maximum executed sentence of 105 months; the conditional-release term was not discussed at the plea hearing.† 675 N.W.2d at 325.† But the presentence-investigation report provided to Rhodes before his sentencing hearing showed that his sentence was subject to a five-year conditional-release term.† Id.† Further, at Rhodesís sentencing hearing, he was advised that his sentence would be subject to the conditional-release term, and when Rhodes and his counsel were given an opportunity to speak, neither objected to the addition of the conditional-release term.† Id.† The supreme court held that the postconviction court did not abuse its discretion by determining that Rhodesís guilty plea was intelligently made and that Rhodes was not entitled to postconviction relief, reasoning that ďthe postconviction court could infer from Rhodesís failure to object to the presentence investigationís recommendation, the stateís request at the sentencing hearing and the courtís imposition of the sentence, that Rhodes understood from the beginning that the conditional release term would be a mandatory addition to his plea bargain.Ē† Id. at 327.

Here, the facts are materially identical with those in Rhodes.† When Thorson entered his plea, no reference was made to the mandatory ten-year conditional-release term.† But the postconviction court found that Thorsonís plea was intelligently made because before his sentencing hearing, Thorson was provided with a presentence-investigation report, which showed that his sentence was subject to the conditional-release term and, based on the affidavit of Thorsonís trial counsel, it was counselís practice to read the conditional-release language of the presentence-investigation report to his clients.† Then, at Thorsonís sentencing hearing, when he was advised that his sentence would be subject to the conditional-release term, he did not object to it.† Thus, we conclude that the district court did not abuse its discretion by denying Thorson postconviction relief.

Affirmed.