This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-625

 

Corey D. Michaels, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed March 21, 2006

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. K3-97-59

 

 

Corey D. Michaels, OID #153814, MCF - Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

In February 1997, appellant Corey Michaels pleaded guilty to one count of first-degree criminal sexual conduct.  The court sentenced Michaels to a 117-month prison term, to run concurrently with an unexpired sentence for a previous criminal-sexual-conduct offense.  The court also imposed a 120-month conditional-release period.  In 2005, Michaels filed a postconviction petition challenging the imposition of the conditional-release period and seeking a modification of his sentence.  The sentencing court dismissed the petition as moot, reasoning that the conditional-release issue had been resolved by a previous order substituting the conditional-release period for the period of supervised release mandated by the statute in effect when Michaels committed the present offense.  On appeal from the dismissal of his petition, Michaels challenges the imposition of the conditional-release period.  Because we conclude that the conditional-release period was properly imposed, we affirm.

D E C I S I O N

            A postconviction petitioner has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant reopening the case.  King v. State, 649 N.W.2d 149, 156 (Minn. 2002).

I

            Michaels first argues that the district court abused its discretion by denying his postconviction petition without a hearing and without making factual findings.  We disagree.

            A postconviction court must grant an evidentiary hearing and make factual findings for any petition filed unless the petition and the record as a whole “conclusively show that the petitioner is entitled to no relief.”  Minn.Stat. § 590.04, subd. 1 (2004); Ives v. State, 655 N.W.2d 633, 635 (Minn.2003); Roby v. State, 531 N.W.2d 482, 483 (Minn.1995).  To satisfy his or her burden of proof under section 590.04, the petitioner must allege facts that, if proved by a fair preponderance of the evidence, would entitle him or her to the requested relief.  State v. Ferguson, 645 N.W.2d 437, 446 (Minn. 2002).

            Michaels did not allege any facts that, if proved, would entitle him to relief.  The district court did not therefore abuse its discretion by denying Michaels’s postconviction petition without an evidentiary hearing and without making factual findings.

II

            Michaels next argues that because the plea agreement did not mention a conditional-release period and he was not informed about it at the plea hearing, his plea was not intelligently made.  Michaels implicitly argues that the validity of his plea turns on what he knew at the plea hearing rather than on what he may have subsequently learned from the presentence-investigation report or the sentence itself.  Minnesota law provides otherwise. 

            Under Minnesota law, a plea by a defendant whose plea agreement does not mention a mandatory conditional-release period and who is not advised about the conditional-release period at the plea hearing will be deemed intelligent if the defendant (a) is on notice at the plea and sentencing hearings that a conditional-release period is a mandatory component of a sex-offender’s sentence, and (b) fails to object at sentencing to the addition of the conditional-release period to his negotiated plea.  State v. Rhodes¸ 675 N.W.2d 323, 327 (Minn. 2004) (upholding addition of period of conditional release to negotiated plea at sentencing, even though plea agreement did not mention conditional-release period and defendant was not informed about it at plea hearing, where defendant was on notice at plea and sentencing hearings that period of conditional release for sex offenders was mandatory and failed to object).

            Like the defendant in Rhodes, Michaels was on notice at the time of the 1997 plea hearing that a period of supervised release for sex offenders was mandatory.  See Minn. Stat. § 609.346, subd. 5(a) (1992) (providing that “[n]otwithstanding the statutory maximum sentence otherwise applicable . . . [t]he court shall sentence a person convicted [of a sex offense] a second or subsequent time . . . to serve a supervised release term of not less than ten years” (emphasis added)).  Michaels was presumed to know the law in effect at the time of his plea.  See State v. Calmes, 632 N.W.2d 641, 648 (Minn. 2001) (stating that citizens are presumed to know the law); State ex rel. Rankin v. Tahash, 276 Minn. 97, 101, 149 N.W.2d 12, 15 (1967) (stating that counsel is presumed to have explained to defendant consequences of pleading guilty). 

            Michaels was also present whenthe sentencing court added a conditional-release period to his negotiated sentence and failed to object.  The sentencing court advised Michaels that Minnesota law “provides for conditional release,” and it explained that a violation of the terms of release would result in reimprisonment for the remainder of the conditional-release period.    The court then asked Michaels if he had any questions, and Michaels responded, “No.”  Neither Michaels nor his counsel inquired about or objected to the conditional-release term.  Nor did Michaels appeal his sentence.

            Because Michaels was on notice about the mandatory conditional-release term at the plea and sentencing hearings and did not object to it, the court reasonably inferred that Michaels understood when he entered his plea that a conditional-release term would be added to his negotiated plea.  See Rhodes, 675 N.W.2d at 327 (holding that petitioner’s failure to object supported postconviction court’s inference that petitioner “understood from the beginning that the conditional release term would be a mandatory addition to his plea bargain”).  Under Rhodes, therefore, Michaels’s plea was intelligently made.

III

            Relying on the repeat-offender statute, Michaels next argues that the conditional-release period “charges a separate offense” and thereby violates the Double Jeopardy Clause’s prohibition against multiple prosecutions for the same offense.  But the conditional-release term is a mandatory component of a sex offender’s sentence, not a separate charge.  State v. Garcia, 582 N.W.2d 879, 881 (Minn. 1998).  The imposition of a conditional-release term does not therefore violate the Double Jeopardy Clause, even if it is imposed after sentencing and it increases the sentence.  See State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998) (concluding that “double-jeopardy guarantees are generally not violated when a district court corrects an unauthorized sentence, even if the sentence is increased”).

            Michaels also argues that the imposition of a conditional-release period amounts to an additional sentence for the same crime and thereby violates the Double Jeopardy Clause’s prohibition against multiple punishments for the same offense.  According to Michaels, by imposing a conditional-release period, the district court “improperly sentenced [him] for two offenses arising out of a single behavioral incident committed against the same victim.”  But the district court did not sentence Michaels for two offenses; the conditional-release term was part of Michaels’s original sentence for the single offense to which he pleaded guilty.  Micahels’s double-jeopardy challenge to the conditional-release period is therefore without merit.

IV

            Finally, Michaels argues that the conditional-release term violates the plea agreement.  According to Michaels, because he did not know at the time of his plea that a conditional-release term would be added to his sentence, the sentence is manifestly unjust.  But the claim that the state violated the plea agreement merely recasts the argument that the plea was not intelligent.  Michaels’s failure to object to the sentence suggests that he understood from the beginning that the conditional-release term was mandatory and would be added to his plea bargain and belies his claim that the imposition of the conditional-release period violated the plea agreement.  See Rhodes, 675 N.W.2d at 327 (concluding that failure to object to addition of conditional-release period to negotiated plea disproved defendant’s claim that state had promised to recommend sentence that did not include conditional-release period).[1]

            Affirmed.



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

[1] Michaels relies on this court’s unpublished opinion in State v. Matusovic, for the proposition that the addition of a conditional-release period to his sentence was manifestly unjust.  See No. C2-02-879, 2002 WL 31892795 (Minn. App. Dec. 31, 2002), review denied (Minn. March 18, 2003).  But even if Matusovic had precedential value, Michaels’s reliance on it is misplaced.  See Minn. Stat. § 480A.08, subd. 3 (2004) (stating that unpublished opinions are not precedential).  In Matusovic, this court held that the district court abused its discretion by adding a ten-year conditional-release period to the presumptive sentence to which the defendant agreed in his plea agreement, where the court stated at the plea hearing that it would impose the presumptive sentence and the defendant learned for the first time at the sentencing hearing that his guilty plea would result in a conditional-release period.  The Matusovic court’s focus on what the defendant knew at the plea hearing is inconsistent with Rhodes, however, where the supreme court focused not only on what the defendant knew at the plea hearing but also on what the defendant subsequently learned from the presentence-investigation report and at the sentencing itself.  Michaels’s post-Rhodes reliance on Matusovic is therefore misplaced.