This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Paul Henry Brown,


Filed March 23, 1999

Reversed and remanded

Shumaker, Judge

Ramsey County District Court

File No. K9-93-2888

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, Minnesota 55102 (for respondent)

John M. Stuart, Minnesota State Public Defender, Marie L. Wolf, Suite 600, 2829 University Avenue SE, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.



Appellant Paul Henry Brown challenges the district court's order denying his motion to withdraw his guilty plea, arguing that the state failed to honor a promise that was part of his plea agreement and that his guilty plea was not knowingly and intelligently made. We reverse and remand.


Brown pleaded guilty on January 5, 1994, to one count of first-degree criminal sexual conduct under a three-option plea agreement that the trial court approved. If Brown were admitted to a sex-offender treatment program and if he successfully completed treatment, he would be sentenced to twelve months in the workhouse, "the regular conditions of probation, treatment, and whatever reasonable mandates * * * the court and probation would assess him." If he were admitted to sex-offender treatment but failed to complete the program, he would receive a double durational departure and an executed term of 172 months. If Brown were not accepted into a sex-offender treatment program, he would be given a "guideline sentence." Indicating his understanding of the plea agreement, Brown stated:

If I successfully complete the program, then I would * * * get the probation. If I don't get into the program, then it would be a normal sentence. If I get in and goof, then it would be double. I do understand.

No one referred to the conditional release period mandated by Minn. Stat. § 609.346, subd. 5 (1994), at the time of Brown's plea, at any of the sentencing hearings prior to his sentencing, or in his written plea petition.

Brown was not admitted to the sex-offender treatment program. In accordance with the plea agreement the trial court imposed the presumptive executed "guidelines" sentence of 86 months. State v. Brown, No. CX-94-1490 (Minn. App. Feb. 7, 1995), review denied (Minn. Mar. 29, 1995). See Minn. Sent. Guidelines IV.

On February 4, 1998, the Department of Corrections notified the trial court that the five-year conditional release term mandated by Minn. Stat. § 609.346, subd. 5, was not included in the original sentence. Under State v. Humes, 581 N.W.2d 317 (Minn. 1998), a sentence for second-degree criminal sexual conduct that does not include the conditional release period is unauthorized by law and may be corrected after sentencing. Id. at 321. Therefore, the trial court added the five-year conditional release term to Brown's sentence. Upon the addition of the conditional release term to his sentence, Brown moved the court to withdraw his guilty plea. The court denied his motion, and Brown appealed.


A defendant may withdraw his plea of guilty after sentencing upon proof that "withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. Ultimately, the decision to deny a motion to withdraw a guilty plea is left to the sound discretion of the trial court and will be reversed only when that discretion is abused. Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

"It is well settled that an unqualified promise which is part of a plea arrangement must be honored or else the guilty plea may be withdrawn." Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979) (citation omitted). A plea may be withdrawn if the defendant did not understand the consequences of the plea at the time of pleading. Perkins v. State, 559 N.W.2d 678, 689 (Minn. 1997). It is the responsibility of the trial court to clarify the terms and the conditions of a plea agreement so that the defendant clearly understands his rights under the agreement. State v. Tyska, 448 N.W.2d 546, 550 (Minn. App. 1989).

Under Minnesota law, a conditional release term of five years must be added to the sentence of a defendant convicted of criminal sexual conduct in the first degree. Minn. Stat. § 609.346, subd. 5 (1994). Any sentence that does not contain the conditional release term is unauthorized by law and may be corrected after sentencing under Minn. R. Crim. P. 27.03, subd. 9. State v. Humes, 581 N.W.2d 317, 321 (Minn. 1998). Accordingly, the district court properly added the conditional release term to Brown's sentence.

Nevertheless, the supreme court's decision in State v. Garcia, 582 N.W.2d 879 (Minn. 1998) is controlling authority in this case and requires that if a defendant is given an unqualified promise regarding a sentence that does not include a conditional release term and if the court later adds the conditional release term, the defendant "must be allowed to withdraw from the plea agreement if he so chooses." Id. at 882. Although Brown's plea agreement, unlike the agreement at issue in Garcia, did not specify a sentence duration, the mandatory conditional release term was not mentioned at appellant's arraignment or at his sentencing. Accordingly, the plea agreement did not contemplate a five-year term of conditional release and Brown ultimately received a sentence more severe than that for which he bargained.

Because Brown's plea agreement did not contemplate the mandatory five-year conditional release period, the addition of that conditional release term constitutes manifest injustice as a matter of law as held by Garcia, id., and Brown is entitled to withdraw his guilty plea if he so chooses. Because we hold that Brown's plea agreement was violated, we do not reach the issue of whether Brown's guilty plea was knowingly and intelligently made.

Reversed and remanded.