Opinion
No. C7-00-1859
Filed May 8, 2001.
Appeal from the District Court, Ramsey County, File No. K398430.
Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, (for appellant)
Considered and decided by Hanson, Presiding Judge, Crippen, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Thomas Wukawitz, Jr., disputes the trial court's denial of his motion to withdraw his guilty plea, contending that because the addition of a mandatory five-year conditional-release term to his sentence was not part of the plea agreement, he is entitled to relief. We reverse and remand to permit consideration of issues that have not been addressed by the trial court.
FACTS
In March 1998, appellant was convicted of two counts of first-degree criminal-sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (1998), after pleading guilty to both counts. The plea agreement provided that if appellant pleaded guilty to both, the prosecution promised not to bring additional charges against him but was allowed to amend the dates of the offense on count one, which increased the presumptive guidelines sentence from 43 months to 86 months in prison:
BY ENTERING THIS PLEA, NO ADDITIONAL COUNTS WILL BE BROUGHT. HOWEVER, COUNT I HAS BEEN AMENDED IN SUCH A WAY TO READ FROM 8/1/89 TO DECEMBER 1992. THIS AMENDMENT RESULTS IN GUIDELINES LEVEL JAIL TIME BEING INCREASED FROM 43 MONTHS TO 86 MONTHS.
At the plea hearing, the prosecution confirmed that it would seek consecutive, executed sentences but did not otherwise mention a maximum or minimum amount of time to be served.
In April 1998, appellant moved to withdraw both pleas of guilty, contending that they were not "knowingly, voluntarily, or intelligently entered." The trial court denied his motion to withdraw, a decision that this court affirmed in an unpublished opinion. The court then sentenced appellant to a 54-month executed prison term on count two and a consecutive 86-month executed term on count one.
State v. Wukawitz, No. C9-98-1148, 1998 WL 901748, at *2 (Minn.App. Dec. 29, 1998), review denied (Minn. Mar. 16, 1999).
In April 2000, two years after sentencing appellant, the trial court filed an amended sentencing order that added a mandatory conditional-release term of five years to appellant's sentence pursuant to Minn. Stat. § 609.109, subd. 7 (2000). The mandatory conditional-release term was not part of the plea agreement, and the parties made no mention of it at the plea hearing. Appellant again moved to withdraw his guilty plea, but the trial court denied his motion without explanation. On appeal, the state concedes that appellant is entitled to some relief because the conditional-release term has the potential to extend the length of appellant's "bargained-for sentence."
DECISION
It is undisputed that the sentencing court had the authority to amend appellant's sentence to include a five-year conditional-release term as mandated by law. Minn. Stat. § 609.109, subd. 7 (2000); State v. Humes, 581 N.W.2d 317, 321 (Minn. 1998) (holding where conditional-release term is mandatory, the court has jurisdiction to correct the unauthorized sentence that does not contain the conditional release).
When the sentence is so amended, appellant may be entitled to relief, based on the plea agreement, if (1) the agreement set a maximum executed term to which appellant would be subject; and (2) that term was the inducement for the plea. State v. Jumping Eagle, 620 N.W.2d 42, 44 (Minn. 2000); accord State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000) ("[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of an inducement or consideration, such promise must be fulfilled." (alteration in original) (quotation omitted)); State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (explaining that a promise for a specific sentence that does not include a conditional-release term is "unauthorized by law and therefore, [the defendant] must be allowed to withdraw from the plea agreement if he so chooses"). But see Brown, 606 N.W.2d at 675 (providing that if the original sentence plus the conditional-release term is less than the maximum executed term contemplated by the plea agreement, the defendant is not entitled to relief).
Because we defer to the state's concession that the plea agreement provided for a maximum executed term, we reverse, but we remand for a determination of whether the plea agreement, which certainly was based on the prosecution's promise not to bring additional charges, rested significantly on the sentencing term. If the court determines that the sentence induced the plea, it must either allow for withdrawal of the plea or modify the sentence so that the maximum period of incarceration, including the conditional-release term, does not exceed the maximum executed term stated in the plea agreement. See Brown, 606 N.W.2d at 674 (describing alternative form of relief).
The trial court did not determine whether the plea agreement provided for a maximum executed term, and this conclusion is not patently indicated by appellant's written plea application; the plea agreement evidently refers to presumptive sentences the trial court might impose under the guidelines, without stating the absence of a guidelines departure. But — evidently explaining the state's concession — the record gives no indication that grounds for departure were asserted or even discussed.