Filed May 22, 2001

Reversed and remanded

Toussaint, Chief Judge

Scott County District Court

File No. K39303507

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Neil Nelson, Chief Deputy Scott County, Thomas John Harbinson, Scott County Attorney, Scott County Government Center, 200 Fourth Avenue West, JC340, Shakopee, MN 55379-1220 (for respondent)

Jordan Scott Kushner, Jordan S. Kushner Law Office, Sexton Building, Suite 636, 529 South 7th Street, Minneapolis, MN 55415 (for appellant)

Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Huspeni, Judge.^*

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Appellant Sean Fitzgerald Pozzi, challenges the district court’s order denying a correction of his sentence, arguing (1) the sentence imposed and executed after probation revocation violated his plea agreement and entitled him to withdraw the plea; and (2) his time spent on probation must be deducted from his supervised release term. Because the plea agreement called for a stayed 48-month sentence and the district court ultimately imposed and executed a 58-month sentence plus a mandatory conditional release term, the sentence violated the plea agreement entitling the defendant to withdraw his plea, we reverse and remand.

F A C T S

In 1994 Pozzi pled guilty to two counts of criminal sexual conduct in the second degree in violation of Minn. Stat. § 609.343 (1992). Pursuant to the plea agreement, imposition of his sentence of up to 48 months in prison was stayed for a five year probationary period.

After several violations of his probation, the district court revoked the stay of imposition and sentenced Pozzi on count I to 48 months in prison and to 58 months on count II, to run concurrently. Pozzi began serving his sentence.

In July 2000, Pozzi brought a motion to correct his sentence. Minn. R. Crim. P. 27.03, subd. 9. The district court affirmed the sentence, but also amended the sentence to include at least five years of supervised release after incarceration pursuant to Minn. Stat. § 609.109, subd. 7 (2000).

D E C I S I O N

“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settled that an unqualified promise which is part of a plea arrangement must be honored or else the guilty plea may be withdrawn.”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).

In determining whether a plea agreement was violated, courts look to what the parties to the plea bargain reasonably understood to be the terms of the agreement.

State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) (quotation and citations omitted). The interpretation and enforcement of a plea agreement is a question of law, requiring de novo review. Id.

Pozzi argues that he is entitled to withdraw his guilty plea because the plea agreement (1) provided for a maximum sentence of 48 months for both counts of criminal sexual conduct; and (2) the additional term of 60 months conditional release was not considered. At the plea hearing, the prosecutor stated that the plea agreement consisted of

a stay of imposition of sentence for a five year probationary period. And that sentence would be a stayed sentence of 48 months in State prison, on condition that ***.

The conditions included a one year cap on jail time and other specific prohibitions and requirements. The district court then questioned Pozzi:

However, and you must understand if you were to violate probation or whatever in there, you could get up to four years in prison. Do you understand that?

****

You understand, by the way, that the maximum—I shouldn’t say the maximum term, but the mandatory term for these two sex matters, as laid out by state law, requires 48 months in state prison. Do you understand that?

Pozzi responded “yes” to both of these questions.

At the sentencing hearing, the prosecutor stated:

But I think fundamentally and simply he can be made aware how serious his conduct is by giving him a year in jail [and] by telling him if his behavior continues and happens again he has that 48 month prison sentence hanging over his head.

The district court, in rendering Pozzi’s sentence, stated “that [amenability to probation] is the reason for the deviation from the guidelines requiring 48 months in prison.” Based on the foregoing, we conclude that the district court accepted the terms of Pozzi’s plea agreement and sentenced Pozzi to a specified duration of 48 months for both counts of criminal sexual conduct.

Moreover, it is undisputed that the plea agreement and sentence did not contemplate the mandatory conditional release term of five years added to the sentence of a defendant convicted of criminal sexual conduct in the first degree. See Minn. Stat. § 609.109, subd. 7(a) (2000) (requiring offenders of the criminal sexual conduct to be placed on conditional release following their prison term-- at time of sentencing, Minn. Stat. § 609.346, subd. 5(a) (1992)). 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 Pozzi’s sentence.

Nevertheless, 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.” State v. Garcia 592 N.W.2d 879, 882 (Minn. 1998). Pozzi’s plea agreement, like the agreement at issue in Garcia, specified a sentence duration and the mandatory conditional release term was not mentioned at appellant's plea hearing or at his sentencing. Because Pozzi’s plea agreement neither contemplated a prison term greater than 48 months for both counts of criminal sexual conduct, nor the mandatory five-year conditional release period, the additional prison term and conditional release term constitute manifest injustice as a matter of law. State v. Jumping Eagle, 620 N.W.2d 42, 44 (Minn. 2000) (holding that defendant was entitled to withdraw his guilty plea where the sentence executed after probation revocation “exceeded the upper limit of the court-accepted plea” agreement). Therefore, Pozzi is entitled to withdraw his guilty plea if he so chooses.

Finally, Pozzi argues that he is entitled to credit against the mandatory conditional release time for time he previously spent on non-custodial, supervised probation because Minnesota law does not recognize credit for non-custodial, supervised time. However, Pozzi provided no caselaw that supports this claim.

Reversed and remanded.

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