This opinion will be unpublished and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
State of Minnesota,
Greg Allen Ballard,
Olmsted County District Court
File No. C0-03-1528
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Raymond F. Schmitz, Olmsted County Attorney, James S. Martinson, Criminal Division Head, 151 Southeast Fourth Street, Rochester, MN 55904-3710 (for respondent)
Deborah Ellis, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for appellant)
Considered and decided by Wright, Presiding Judge; Randall, Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s denial of his postconviction petition, appellant argues that he is entitled to withdraw his guilty plea to second-degree criminal sexual conduct or have his five-year conditional-release term vacated because imposition of the conditional-release term makes his sentence more severe than what he was promised. We affirm.
A petitioner who seeks postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts alleged in the petition. Minn. Stat. § 590.04, subd. 3 (2002). Review of postconviction proceedings is limited to determining whether the record contains sufficient evidence to sustain the findings of the postconviction court. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). Absent an abuse of discretion, a postconviction court’s decision will not be disturbed. Id. But interpretation and enforcement of plea agreements involve issues of law, which appellate courts review de novo. State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).
Appellant argues that he is entitled to withdraw his guilty plea or have his conditional-release term vacated because he was not informed of the imposition of the release term at the time of his plea and imposition of the term makes his sentence more severe than what he was promised. We disagree. 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). Instead, 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; Chapman v. State, 282 Minn. 13, 17, 162 N.W.2d 698, 701 (1968). A manifest injustice exists if the plea is not accurate, voluntary, and intelligent. Perkins, 559 N.W.2d at 688. When a prosecutor’s promise induces a defendant to plead guilty, the defendant’s due-process rights are violated if the prosecutor does not fulfill the promise. State v. Wukawitz, 662 N.W.2d 517, 522 (Minn. 2003).
Here, appellant does not argue that he suffered a manifest injustice because the state violated its promise; he admits that his plea agreement with the state did not limit the length of an executed sentence if he violated his probation. Instead, appellant argues that the district court violated its promise by imposing the five-year conditional-release term. According to appellant, the district court promised him that he would only serve a 21-month sentence, with 7 months off for good behavior, if he violated his probation. And appellant contends that he relied on this promise in taking a “calculated risk” and contacting the victim, which violated the terms of his probation.
But the record does not indicate that the district court promised appellant that he would only receive an executed 21-month sentence if he violated his probation. Here, the district court initially imposed a 21-month sentence and stayed execution of appellant’s sentence for 25 years. Because appellant’s sentence did not include imprisonment, the district court did not impose, and the parties did not discuss, a conditional-release term at the time of sentencing. See Minn. Stat. § 609.109, subd. 7(a) (2000) (stating that notwithstanding other provisions, when a district court sentences a person to prison for certain criminal sexual conduct offenses, the court shall provide that the person be placed on conditional release after the sentence is served). And if appellant had complied with the terms of his probation, he would never have been subject to a conditional release.
Appellant relies on the district court’s statement at the plea hearing that if he violated his probation, the executed sentence “would be for up to a period that guidelines tell us a presumptive period of 21 months.” But this statement merely instructs appellant that the presumptive sentence is 21 months. And in its sentencing order, the district court stated that the maximum penalty for appellant’s second-degree criminal sexual conduct offense was 25 years in prison. Moreover, the agreement between the appellant and the state did not limit the length of an executed sentence if appellant violated his probation. See State v. Christopherson, 644 N.W.2d 507 (Minn. App. 2002), review denied (Minn. July 16, 2002) (holding that where the plea agreement between the defendant and the state did not contain a durational limit, the subsequent addition of a conditional-release term, following a probation violation and execution of the stayed sentence, did not violate the defendant’s plea agreement).
We conclude that appellant cannot establish that a manifest injustice resulted from his guilty plea. Appellant in effect is arguing that his decision to violate his probation was not accurate, voluntary, and intelligent because he was not aware that his violation would result in imposition of a conditional-release term. But a district court is not required to advise a criminal defendant, at the time of his or her plea, of every possible consequence of any violation of probation. Christopherson, 644 N.W.2d at 510. As found by the postconviction court, and contrary to appellant’s argument, Christopherson is nearly identical to the present case. In Christopherson, (1) the appellant pleaded guilty to second-degree criminal sexual conduct; (2) the appellant and the state did not agree to a maximum sentence in the plea agreement; (3) the district court imposed a stayed sentence; and (4) the district court added the conditional-release term to the executed sentence only after the appellant violated his probation and the probation was revoked. Id. at 508-09. In Christopherson, this court determined that the plea was not invalid merely because the district court did not inform the appellant, at the time of his plea, of the possibility of a conditional-release requirement. Id. at 512. Likewise, on this record we conclude that appellant is not entitled to withdraw his guilty plea or have his conditional-release term vacated merely because the district court did not inform him at the time of his plea that he would be subject to a conditional-release term if he violated his probation and his probation was revoked.
Finally, the state argues that the district court should have found that appellant waived his right to challenge the imposition of the conditional-release term by failing to object to it at the probation-revocation hearing and that appellant’s petition for postconviction relief was not timely. Because we have determined that appellant is not entitled to relief on the merits, we need not address these arguments.