This opinion will be unpublished and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

A05-134

 

 

Kevin Craig Jurgens, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed January 17, 2006

Affirmed

Lansing, Judge

 

Ramsey County District Court

File No. K3-96-2528

 

 

John Stuart, State Public Defender, Philip Marron, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

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

 

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

 

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court denied Kevin Jurgens’s postconviction plea-withdrawal petition without an evidentiary hearing, and he appeals.  Because the petition, files, and record conclusively show that he is not entitled to withdraw his plea, we affirm the district court’s denial of Jurgens’s request for postconviction relief. 

F A C T S

Kevin Jurgens entered a negotiated plea of guilty to second-degree criminal sexual conduct for engaging in sexual contact with an eleven-year-old child on August 10, 1996.  In accordance with the plea negotiation, the district court sentenced Jurgens to forty-two months’ imprisonment with execution stayed on specific probationary conditions.  The sentence also included a five-year conditional-release term and a fine of $7,500.

At the plea hearing, Jurgens testified that he did not remember the sexual conduct, but he remembered that he and his girlfriend spent the night at a friend’s house after an evening of drinking.  He accepted the statement of his friend’s eleven-year-old daughter that in the early morning hours he came into the room where she was sleeping, walked over to her bed, and placed his hand on her vagina over her clothing.  The child told him to stop.  After falling back asleep, the child awoke as Jurgens was pulling down her pants.  She again told him to stop, but he rubbed her vagina with his hand and then rubbed his penis on her hip and her vagina.  The child began to cry and awakened her mother. 

Although Jurgens testified that he did not recall these events, he did not contest any part of the child’s statement of what had occurred.  See State ex rel. Norgaard v. Tahash, 261 Minn. 106, 111, 110 N.W.2d 867, 871 (1961) (permitting defendant to enter plea based on victim’s statement when defendant does not recall specific events).  Jurgens also testified that he did not believe that his inability to remember was caused by his alcohol consumption, that he had discussed a possible intoxication defense with his attorney, and that he knew his plea of guilty would waive any right to assert an intoxication defense. 

In October 2002, after Jurgens violated his probation for the third time, the district court vacated the stay and executed the sentence.  In October 2004, nearly eight years after he entered his guilty plea, Jurgens filed a petition for postconviction relief, requesting withdrawal of his plea.

On appeal from the denial of a hearing and relief on his postconviction petition, Jurgens argues that his guilty plea was not accurate, intelligent, or voluntary and that the district court abused its discretion by not allowing him to withdraw his plea.  Specifically, Jurgens argues that his plea was (1) not accurate because it lacked a factual basis for the intent element; (2) not intelligent because he was unaware of the conditional-release term, did not know the presumptive sentence, and received incorrect advice from his attorney about the viability of an intoxication defense; and (3) not voluntary.

D E C I S I O N

A petitioner seeking a postconviction remedy has the burden of establishing, by a fair preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (2004).  When a postconviction court summarily denies a postconviction petition, we review the denial under an abuse-of-discretion standard.  Powers v. State,695 N.W.2d 371, 374 (Minn. 2005).  Summary denial of a petition is appropriate when the grounds alleged in the petition are insufficient to warrant relief.  Minn. Stat. § 590.04, subd. 3.

Once a guilty plea has been entered, a defendant does not have an absolute right to withdraw it.  Alanis v. State, 583 N.W.2d 573, 577 (Minn. 1998).  But a defendant may withdraw a guilty plea if withdrawal is necessary to correct a manifest injustice.  Id. Manifest injustice exists when a defendant can show that a guilty plea was not accurate, voluntary, and intelligent.  Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997).

I

Jurgens contends that his plea was inaccurate because it lacked an adequate factual basis for the intent element.  He asserts that, because he mistakenly believed that he was in bed with his girlfriend, he did not have the requisite intent to commit the crime.  The record does not factually or legally support this allegation. 

Second-degree criminal sexual conduct requires that the defendant intentionally touch the minor’s intimate parts and act with sexual or aggressive intent.  See Minn. Stat. §§ 609.341, subd. 11(a) (defining sexual contact to require intentional touching); .343, subd. 1 (1996) (providing that second-degree criminal sexual conduct requires “sexual contact”).  Criminal sexual conduct requires a general intent to do the prohibited act but does not require a specific intent.  State v. Lindahl, 309 N.W.2d 763, 767 (Minn. 1981); State v. Hart, 477 N.W.2d 732, 736 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992).  We agree with the district court’s observation that the statute merely requires that the actor intend sexual contact, not that he intend a particular victim.

The record establishes that Jurgens placed his hand on the child’s vaginal area, that he removed the child’s pants, and that he placed his penis on her vagina.  His intent to act may be directly inferred from this conduct.  See State v. Hardimon, 310 N.W.2d 564, 566 (Minn. 1981) (stating that intent is generally proved by circumstantial evidence).  The record provides no basis for a legal claim that the plea lacks a factual basis.  The record also contradicts Jurgens’s current factual claim that he believed that his intent was to touch his girlfriend, not the eleven-year-old child.  At the plea hearing in 1996, he testified that, had he believed he was touching his girlfriend, he would remember and that he did not remember any of the events.  Jurgens has not alleged sufficient facts to require an evidentiary hearing on the inaccuracy of his plea.

II

Jurgens next asserts that, for three reasons, his plea was not intelligent.  First, he contends that he was not informed of the conditional-release term or the potential fine.  The record does not support this allegation.

  For a plea to be intelligent, the defendant must understand the charges, the rights that he waives by pleading, and the consequences of his plea.  Kaiser v. State, 641 N.W.2d 900, 903 (Minn. 2002).  A defendant, however, need not be advised of every possible consequence of the plea agreement; rather, the defendant must be informed of the direct consequences of the plea.  Id. 

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).  A conditional-release term may violate the plea agreement when it exceeds the maximum executed sentence agreed to in the plea agreement.  State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004), cert. denied, 125 S. Ct. 134 (2004).  When the conditional-release term is mandatory and discussed at sentencing, however, the defendant has sufficient notice of the term.  Id. at 327.  The conditional-release term is a mandatory part of any sentence for second-degree criminal sexual conduct.  Minn. Stat. § 609.109, subd. 7(a) (2004) (replacing Minn. Stat. § 609.346, subd. 5(a) (1996), as statutory provision mandating conditional-release term); State v. Humes, 581 N.W.2d 317, 319 (Minn. 1998).  

            Jurgens’s presentence-investigation report recommended that Jurgens receive a conditional-release term of at least five years.  Jurgens did not object to this recommendation, which suggests that he “understood from the beginning that the conditional-release term would be a mandatory addition to his plea bargain.”  Rhodes, 675 N.W.2d at 327.  The conditional-release term was also discussed at his sentencing hearing, and Jurgens’s failure to object to its imposition similarly demonstrates his awareness of the term.  See id. (holding postconviction court could infer plea was intelligent when defendant did not object to presentence-investigation recommendation).  Furthermore, because the conditional-release term is a mandatory part of his sentence, Jurgens was on notice that his sentence would include a term of conditional release.  See id. (finding statutory mandate served as notice of conditional-release term).

            This reasoning applies equally to Jurgens’s claim that his plea was unintelligent because he was unaware of the potential fine.  The mandatory minimum fine for second-degree criminal sexual conduct is $10,500.  See Minn. Stat. §§ 609.101, subd. 2 (setting minimum fine at thirty percent of the maximum fine); .343, subd. 2(a) (1996) (setting maximum fine at $35,000).  This mandatory minimum fine is explicitly referred to in the presentence-investigation report, and at the sentencing hearing, the district court specifically imposed a $7,500 fine, which is less than the mandatory minimum.  Jurgens was on notice of the fine, and the failure to separately provide for it in the plea agreement does not make his plea unintelligent.  See Blondheim v. State, 573 N.W.2d 368, 368-69 (Minn. 1998) (rejecting defendant’s request for plea withdrawal for failure to include fine in plea agreement because defendant did not object to imposition of fine at sentencing).

            Jurgens next argues that his plea was unintelligent because he was unaware that the presumptive sentence for the offense provided for a stay of execution.  The record contains a statement by Jurgens’s attorney that Jurgens was “looking at prison time if [he went] to trial and [was] convicted,” but the statement is not tied to an indication of the presumptive sentence.  The district court properly informed Jurgens of the presumptive sentence.  During a detailed discussion, the court explained that the facts supported an upward departure and that it would not grant a stay of imposition.  The court then explained that, because it would not grant a stay, Jurgens possibly faced jail time if he were convicted by a jury.  As the postconviction court noted, this risk assessment is not a statement of the presumptive sentence, but the district court’s evaluation of the severity of the conduct and the offense. 

            Finally, Jurgens argues that his plea was unintelligent because his attorney incorrectly advised him at the plea hearing that intoxication is not a defense to criminal sexual conduct.  Jurgens has not demonstrated that his attorney’s advice was incorrect.  Because criminal sexual conduct is a general-intent crime rather than a specific-intent crime, intoxication is not a defense.  Lindahl, 309 N.W.2d at 767; Hart, 477 N.W.2d at 736; see also Minn. Stat. § 609.075 (1996) (specifying that intoxication may be considered when particular intent or state of mind is element of crime).  This claim also lacks a factual basis.  In the petition submitted to the court at his 1996 plea hearing, Jurgens stated that he did not “make the claim that [he] was so drunk or so under the influence of drugs or medicine that [he] did not know what [he] was doing at the time of the crime.”  We agree with the district court’s determination that Jurgens has not alleged sufficient facts to show that his plea was not intelligent.

III

Jurgens lastly claims that his plea was not voluntary.  When the record demonstrates the voluntariness of a guilty plea, a defendant cannot succeed on a postconviction claim that the plea was involuntary.  See State v. Ecker, 524 N.W.2d 712, 719 (Minn. 1994) (holding that contested plea was voluntary because defendant repeatedly stated on record that he was making his own decision).  The transcript of the plea hearing shows that the district court repeatedly gave Jurgens a chance to reject the plea and proceed to trial if Jurgens had any doubts about the wisdom of entering a guilty plea.  Jurgens repeatedly stated that he wanted to proceed, saying, “Yes, let’s go for it.”  When asked whether anyone had forced him to sign the plea petition that stated the agreement or whether he was under the influence of any drugs or alcohol at the time, Jurgens responded that he was not forced and was not under the influence.  The record supports the postconviction court’s conclusion that Jurgens voluntarily entered the guilty plea.

            Jurgens’s petition and the underlying record conclusively show that Jurgens is not entitled to postconviction relief.  In light of the transcript, the documents in the record, and Jurgens’s admissions at the plea hearing, Jurgens’s allegations are insufficient to show a manifest injustice entitling him to withdraw his guilty plea.  Because Jurgens cannot meet this burden, the postconviction court did not abuse its discretion by summarily denying his request for an evidentiary hearing.

            Affirmed.