This opinion will be unpublished and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

A03-803

 

Jerrad Wailand, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed April 6, 2004

Affirmed

Peterson, Judge

 

Beltrami County District Court

File No. K3001130

 

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, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Timothy R. Faver, Beltrami County Attorney, Judicial Courts Annex, 619 Beltrami Avenue Northwest, Bemidji, MN  56601 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Forsberg, 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 2001 conviction of and sentence for third-degree criminal sexual conduct, appellant Jarrad Wailand argues that the imposition at sentencing of a ten-year conditional-release term not mentioned in the plea agreement violated that agreement, which called for an aggregate prison term of 132 months.  We affirm.

FACTS

            Appellant was charged with one count each of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b)-(c) (2000); and attempted third-degree criminal sexual conduct in violation of Minn. Stat. §§ 609.344, subd. 1(c) (2000), 609.17 (2000).  The charges arose out of two separate incidents involving two different minor females.  When these offenses occurred, appellant was on probation for a previous criminal-sexual-conduct conviction for which he had received a 60-month stayed prison sentence plus a five-year conditional-release term.

            Appellant pleaded guilty to both charges, as amended to delete the element of force or coercion.  At the plea hearing, defense counsel stated:

            At this time, [appellant] will be pleading guilty to the single count Complaints on both files.  There is a recommendation that [the prosecutor] and I have entered into that each file would carry a mandatory minimum sentence of 36 months, and we would be recommending that each would be consecutive to each other, as well as consecutive to the 60 months that he is currently on paper.  His pleas to both of these charges would constitute . . . an admission of the probation violation, as well.

 

The district court asked, “So [appellant] is pleading guilty with the recognition that he’s going for 132?”  Defense counsel replied, “Yes.”  After appellant entered a factual basis for his plea, the district court referred the case for a presentence investigation.

            The record does not show that appellant was told about the ten-year conditional-release term before the sentencing hearing.  At the sentencing hearing on June 25, 2001, defense counsel stated:

            Additionally, Your Honor -- and I haven’t told [appellant] this yet.  We have been in chambers.  The judge has spoken with the Sentencing Guidelines Commission, Mr. Wailand.  And because both of these would be considered a second conviction, the length of conditional release after release from prison is ten years, not five years.

 

The district court then gave appellant the opportunity to make a statement:  “Mr. Wailand, is there anything you would like to say to me at this time before I sentence you?  This is the opportunity that I give you to give me any statement that you might choose to make.”  Appellant said nothing about the conditional-release term.

            The district court then accepted appellant’s guilty plea to the third-degree and attempted third-degree charges and found that the current offenses constituted probation violations on the prior conviction.  The district court executed the 60-month sentence for the prior conviction and sentenced appellant to two executed terms of 36 months in prison for the current offenses, with all of the sentences to run consecutive to each other.  The district court also imposed a ten-year conditional-release term.  Appellant then told the court that after he completed treatment and was released from prison, he planned to leave Minnesota when he could do so legally.  The district court explained to appellant that he might not be allowed to leave Minnesota during the conditional-release period.

            In April 2003, appellant filed a petition for postconviction relief seeking to withdraw his guilty plea, arguing that the imposition of the conditional-release term violated the plea agreement.  The district court found that appellant’s claim that he did not know he would be subject to a conditional-release term when he pleaded guilty to criminal sexual conduct in June 2001, lacked merit.  The court explained:

[W]hen [appellant] was sentenced in August of 2000 for his first conviction for Criminal Sexual Conduct, [appellant] received a 60-month stayed sentence and 60 months of conditional release required by Minn. Stat. § 609.109, subd. 7.  This sentence occurred less than one year before he was sentenced in June 2001 for the two new criminal sexual conduct convictions.  Thus, he clearly knew and should have expected another lengthy conditional release period at the time of his sentencing in June of 2001.  Thus, [appellant] cannot argue, as he does, that he was unaware that there would be a conditional release term imposed.

 

. . . The sentencing transcript makes it clear that the Court, with counsel present, called the Sentencing Guidelines Commission prior to sentencing to make certain the appropriate conditional release term was imposed.  . . . The same page of the transcript indicates that [appellant] might have been under the impression that he would receive a 60-month conditional release term, but when advised by his counsel that it would be 120 months, [appellant] expressed no objection or a wish to withdraw his guilty plea.

 

. . . .

 

. . . [A]ppellant knew of the likelihood that a conditional release term would be imposed because of his prior conviction and sentencing less than one year before.  Plus he was advised by his counsel before sentencing was imposed that the conditional release term would be 120 months.

 

            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.

            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.  Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).  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.

            To be valid, a guilty plea must be accurate, intelligent, and voluntary.  State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983).  “Manifest injustice occurs if any of these three requirements have not been met.”  Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002).

            Appellant argues that his plea was not knowing and intelligent because he was unaware of the conditional-release term when he entered his plea.

[T]he 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 . . . .

 

Id. (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 district court concluded that appellant’s claim that he did not know he would be subject to a conditional-release term when he pleaded guilty to criminal sexual conduct in June 2001, lacked merit.  The district court cited as support for its conclusion the facts that, based on appellant’s previous criminal-sexual-conduct conviction for which a 60-month conditional-release term was imposed, “he clearly knew and should have expected another lengthy conditional release period at the time of his sentencing in June of 2001;” and after being advised by counsel before sentence was imposed that the length of the conditional-release term would be 120 months, appellant “expressed no objection or a wish to withdraw his guilty plea.”

The circumstances under which appellant’s conditional-release term was imposed are not materially different from the circumstances in State v. Rhodes, 675 N.W.2d 323 (Minn. 2004).  In Rhodes, the appellant pleaded guilty with the understanding that he would receive a maximum executed sentence of 105 months.  Id. at 325.  The conditional-release term was not discussed at the plea hearing.  Id.  The conditional-release term was expressly discussed at the sentencing hearing, and when appellant and his counsel were given an opportunity to speak, neither made any statement concerning the conditional-release term.  Id.  The judgment roll included the conditional-release term.  Id.  The supreme court concluded that “the postconviction court could infer from Rhodes’ failure to object to the presentence investigation’s recommendation, the state’s request at the sentencing hearing and the court’s imposition of the sentence that Rhodes understood from the beginning that the conditional release term would be a mandatory addition to his plea bargain.”  Id. at 327.

Similarly, here, the district court could infer from appellant’s failure to object at the sentencing hearing to the 120-month conditional-release term that appellant understood at the time he entered his plea that the conditional-release term would be imposed.  The district court did not abuse its discretion in denying appellant postconviction relief. 

            Affirmed.

 



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