                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0984

                               Danny Lee Zinski, petitioner,
                                       Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                  Filed July 13, 2015
                                Reversed and remanded
                                    Minge, Judge

                            Washington County District Court
                              File No. 82-KX-95-004671


Cathryn Middlebrook, Chief Appellate Public Defender, Veronica Surges Shacka,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Pete Orput, Washington County Attorney, Robin M. Wolpert, Assistant County Attorney,
Stillwater, Minnesota (for respondent)


         Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Minge,

Judge.




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                        UNPUBLISHED OPINION

MINGE, Judge

      Appellant Danny Lee Zinski seeks review of the district court order denying his

petition for postconviction relief, which sought to withdraw his guilty plea. Because his

guilty plea was induced by an unfulfillable promise, we reverse and remand.

                                         FACTS

      This is an appeal from a denial of a petition for postconviction relief stemming

from a 1995 guilty plea. On October 3, 1995, the state charged appellant with first-

degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(c) (1994), and fourth-

degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subds. 1(c), 2

(1994). These charges arose from an incident on September 29, 1995, in which appellant

broke into his ex-girlfriend’s home, pinned her down, rubbed himself on her, and then

ejaculated on her leg. Appellant waived any omnibus issues and entered a plea of not

guilty at the omnibus hearing.

      At the November 9, 1995 plea hearing, the state amended the first-degree burglary

charge to gross misdemeanor harassment, in violation of Minn. Stat. § 609.748, subd. 2

(1994). Appellant pleaded guilty to the harassment charge in exchange for the dismissal

of the criminal sexual conduct charge. The prosecutor then examined appellant and

established the factual basis for the gross misdemeanor guilty plea. The district court

accepted the guilty plea and sentenced appellant to:

                    A $3,000 fine and 365 days in jail, with $3,000 of the
             fine and 305 days suspended for a period of two years on the
             condition that you remain under probation with the


                                            2
              Washington County Department of Court Services, subject to
              every rule of the Department of Court Services, including the
              requirement that you remain law abiding, have no same or
              similar offenses, no criminal convictions, that you keep in
              contact with your probation agent in writing and advise him
              or her of every change of address that you have in writing;
              that you serve 60 days in the Washington County Jail, with
              credit for time served; that you have no contact whatsoever
              with the victim . . . .

The district court did not instruct appellant that he had to or would need to register as a

predatory offender, under Minn. Stat. § 243.166 (1994). In December 1996, appellant’s

sentence was executed due to a violation of the terms of his probation, he was ordered to

serve 305 days in jail, and his sentence expired in 1997. Appellant never registered nor

was directed to register as a predatory offender prior to serving the jail time or upon

release.

       On July 18, 2013, appellant was convicted of being a felon in possession of a

firearm, in violation of Minn. Stat. § 609.165, subd. 1b(a) (2012), and sentenced to prison

for 60 months. While incarcerated, appellant’s caseworker determined that appellant was

required to register as a predatory offender based on his 1995 harassment conviction.

The caseworker completed the registration forms, but appellant refused to sign them.

       Appellant filed a pro se petition for postconviction relief on October 31, 2013,

seeking relief from the predatory-offender-registration requirement. In appellant’s

supporting affidavit, he asserted that he was never advised of the predatory-offender-

registration requirement. On January 15, 2014, the Minnesota Appellate Public

Defender’s Office filed a supplemental brief in support of appellant’s petition for




                                            3
postconviction relief, challenging the 1995 guilty plea and alleging ineffective assistance

of counsel.

       After a hearing, the district court denied appellant’s petition for postconviction

relief. In upholding the 1995 plea, the district court found that appellant’s sentence did

not “include any announced condition” that appellant would comply with the registration

requirement of the predatory-offender-registration statute and that the state of Minnesota

and Washington County Community Corrections never required him to register during

the time of his probation or at the expiration of his sentence. The district court therefore

concluded that appellant’s “claimed expectations regarding his plea agreement were

completely fulfilled and satisfied in that he was not required to register.”

       Appellant seeks review of the denial of his petition.

                                      DECISION

       The basic issue is whether the postconviction court erred when it denied

appellant’s petition for postconviction relief.     Although 18 years have passed since

appellant’s conviction, the timeliness of his petition is not at issue in this proceeding.1

Appellant asserts that his plea may be withdrawn because it was based on an unfulfillable

1
  The two-year time limit for postconviction relief in Minn. Stat. § 590.01 is not
jurisdictional and may be forfeited by failure to assert it. Carlton v. State, 816 N.W.2d
590, 601 (Minn. 2012). Although the state challenged the timeliness of appellant’s
postconviction petition at the district court, the state did not raise or brief the issue on
appeal. Thus, we will not consider it. See State v. Butcher, 563 N.W.2d 776, 780 (Minn.
App. 1997) (stating issues not briefed on appeal are waived), review denied (Minn. Aug.
5, 1997). We are troubled that the court and corrections did not notice appellant’s
18-year delay in registering until his caseworker directed him to register in 2013. Once
appellant was notified of this registration requirement, he promptly sought relief from
registration.


                                              4
promise, and we proceed to consider that question. To withdraw a guilty plea after

sentencing, a defendant must show withdrawal is necessary to correct a manifest

injustice. State v. Raleigh, 778 N.W.2d 90, 93-94 (Minn. 2010) (citing Minn. R. Crim.

P. 15.05, subd. 1). A manifest injustice exists when a court accepts an invalid guilty plea.

State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). To be valid, a plea must be accurate,

voluntary, and intelligent. Id. Whether a guilty plea was valid and whether a district

court erred in denying a petition for the withdrawal of a guilty plea are questions of law

that we review de novo. Raleigh, 778 N.W.2d at 94.

       When an unfulfilled or unfulfillable promise induces a guilty plea, the

voluntariness of the plea is drawn into question. James v. State, 699 N.W.2d 723, 728-29

(Minn. 2005). “To determine whether a plea is voluntary, the court examines what the

parties reasonably understood to be the terms of the plea agreement.” Raleigh, 778

N.W.2d at 96. A plea is intelligent if the defendant understands (1) the charges against

him, (2) the rights waived by pleading guilty, and (3) the consequences of the plea.

Williams v. State, 760 N.W.2d 8, 15 (Minn. App. 2009), review denied (Minn. Apr. 21,

2009). “[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 the inducement or consideration, such

promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495

(1971). “Determining what the parties agreed to in a plea bargain is a factual inquiry for

the postconviction court to resolve.” James, 699 N.W.2d at 728. The interpretation and

enforcement of plea agreements, however, present legal issues that we review de novo.

State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).


                                             5
       First, we address the issue of whether appellant was required to register in 1995 as

a predatory offender based on his guilty plea to harassment. The predatory-offender-

registration statute in effect provided:

              Subdivision 1. Registration required. A person shall register
              under this section if:
              (1) the person was charged with or petitioned for a felony
                   violation of or attempt to violate any of the following, and
                   convicted of or adjudicated delinquent for that offense or
                   of another offense arising out of the same set of
                   circumstances:
              ....
              (iii) criminal sexual conduct under section 609.342; 609.343;
              609.344; or 609.345; or . . .
              ...
              Subd. 6. Registration Period. . . . [A] person required to
              register under this section shall continue to comply with this
              section until ten years have elapsed since the person was
              initially assigned to a corrections agent in connection with the
              offense, or until the probation, supervised release, or
              conditional release period expires, whichever occurs later. . . .

Minn. Stat. § 243.166, subds. 1, 6 (1994) (emphasis added). Here appellant pleaded

guilty to a harassment offense arising from the same set of circumstances as his fourth-

degree criminal sexual conduct charge under Minn. Stat. § 609.345. Thus, at the time of

the plea hearing, appellant was required to register as a predatory offender. See State v.

Lopez, 778 N.W.2d 700, 704 (Minn. 2010) (“Minnesota Statutes § 243.166 mandates that

a person ‘shall register’ as a predatory offender.”).

       In 2000, subdivision 6 was amended to require additional registration by a

predatory offender after new offenses:

               If a person required to register under this section is
              incarcerated due to a conviction for a new offense or
              following a revocation of probation, supervised release, or


                                              6
                conditional release for any offense, the person shall continue
                to register until ten years have elapsed since the person was
                last released from incarceration or until the person’s
                probation, supervised release, or conditional release period
                expires, whichever occurs later.

2000 Minn. Laws ch. 311, art. 2, at 195. This amendment to the predatory registration

statute is applied retroactively. State v. Lilleskov, 658 N.W.2d 904, 908 (Minn. App.

2003) (“The predatory-offender-registration statute, which imposes a duty to register

based on a status that is triggered by an earlier act, can hardly be understood except as

applied retroactively.”). If appellant had not pleaded guilty to the 1995 harassment

offense, he would not have been instructed to register for his new offense in 2013 as his

2013 conviction—felon in possession of a firearm—does not require predatory offender

registration.

       Appellant contends that had he been informed of or aware of the mandatory

predatory-offender registration, he would not have entered a guilty plea. The state’s

failure to preserve the record complicates the determination of whether appellant’s plea

was induced by an understanding that the registration requirement was not applicable.

       The district court and the Minnesota Department of Corrections have a duty to

inform a defendant that he or she is required to register as a predatory offender:

                Subd. 2. Notice. When a person who is required to register
                under this section is sentenced, the court shall tell the person
                of the duty to register under this section. The court shall
                require the person to read and sign a form stating that the duty
                of the person to register under this section has been explained.
                If a person required to register under this section was not
                notified by the court of the registration requirement at the
                time of sentencing, the assigned corrections agent shall notify
                the person of the requirements of this section.


                                               7
Minn. Stat. § 243.166, subd. 2 (1994); see also Kaiser v. State, 641 N.W.2d 900, 907

(Minn. 2002) (explaining that “notice [of the registration requirement] can be provided

by an employee of the Department of Corrections, an executive branch agency, if the

court fails to do so”). It is apparent that neither the district court nor the department of

corrections informed appellant of the registration requirement or required him to register

at the time of his conviction and sentencing for the 1995 gross misdemeanor harassment

offense.   It was not until he was incarcerated in 2013 for an unrelated felon-in-

possession-of-a-firearm conviction that the registration question arose.

       A review of the transcripts reveals that the parties were aware of the registration

requirement during the 1995 plea hearing and that they attempted to avoid its application:

              THE COURT: All right. In any event, why don’t you tell me,
              is there a plea agreement here?
              ...
              [Defense Counsel]: Your Honor, it’s my understanding that
              the following will occur. That with respect to the felony
              charges being prosecuted by [the state], the charge of criminal
              sexual conduct in the fourth degree will be amended to
              harassment.
              [Prosecution]: That’s not correct, Your Honor. If I could,
              Count I of the Complaint, the first degree burglary, will be
              amended to gross misdemeanor harassment, 609.748, Subd.
              2, and Count II would be dismissed. If we were to amend
              Count II, there would still be a registration requirement and I
              don’t believe that had been contemplated.
              [Defense Counsel]: No. And then we would strongly urge that
              you’d amend Count I rather than Count II, and I stand
              corrected.
              ...
              [Prosecution]: That’s correct, Your Honor, and the plea
              agreement contemplated a 60 day cap on jail time. It’s my
              understanding that the defendant has already served 40 days.
              Obviously there would be two years’ probation, there would


                                             8
              be a continuation of a no-contact order with the victim. There
              are CD issues here, so we would request a CD evaluation and
              a psych evaluation as part of the PSI.

       In the postconviction proceeding, the district court found that the lack of a

registration requirement did not induce appellant to accept the 1995 plea. The court

relied on the affidavits submitted by appellant and concluded that appellant is an

“unreliable reporter.” After submitting his pro se affidavit, which stated that he was not

advised of a registration requirement, appellant secured the assistance of a public

defender and an additional affidavit was submitted. Appellant’s second affidavit stated

that, prior to pleading guilty, his attorney told him that he would not have to register. The

second affidavit also stated that had his attorney, the prosecutor, or the court advised him

that he would have to register, then he would not have pleaded guilty.

       We normally defer to credibility determinations made by the fact-finder. Dale v.

State, 535 N.W.2d 619, 623 (Minn. 1995). However, less deference is required when the

credibility determination is based on affidavits and not on witness testimony. “When the

critical evidence is documentary, there is no need to defer to the trial court’s assessment

of its meaning or credibility.” Speckel by Speckel v. Perkins, 364 N.W.2d 890, 893

(Minn. App. 1985).

       Although appellant’s affidavits may seem contradictory, appellant persuasively

reconciles the affidavits in his brief. Appellant’s first, pro se affidavit indicates that he

was not advised that he needed to register. Appellant’s second affidavit, prepared by his

newly acquired appellate lawyer, indicates appellant was affirmatively told that he did

not need to register. Not being told to register and being told that he did not need to


                                             9
register are not necessarily inconsistent. Additionally, the record demonstrates that the

parties attempted to avoid the registration requirement by amending the burglary charge

and dismissing the criminal sexual conduct charge. The context of this amendment

supports the conclusion that both the prosecutor and defense counsel treated the

registration requirement as a significant consideration in the plea agreement.          This

conclusion is further supported by the fact that appellant was never informed that he had

been required to register until 2013—after he committed a new offense that purportedly

trigged an additional registration period under the amended registration statute. Minn.

Stat. § 243.166, subd. 6(c). 2

       Based on this record, we conclude appellant’s plea was induced by an unfulfillable

promise and that as a result the voluntariness of appellant’s guilty plea is drawn into

question. Because an involuntary plea is an invalid plea, it would be a manifest injustice

if appellant were not allowed to withdraw his guilty plea. See State v. Theis, 742 N.W.2d

643, 650 (Minn. 2007) (allowing withdrawal of guilty plea under the manifest-injustice




2
  We note that this amended statute added a registration requirement “until ten years have
lapsed since the [predatory offender] was last released from incarceration.” It is not clear
whether this ten-year period runs from release for the prior offense in which registration
was required or whether this registration requirement is triggered at any point in the life
of a once predatory offender who subsequently reoffends and is incarcerated. This issue
of the nature and scope of the retroactive application of the 2000 amendatory language is
not raised in this appeal, and we do not attempt to resolve the question. It would be a
significant step for the legislature to mandate a lifelong registration obligation that could
be triggered by any future incarceration unrelated to any predatory-offender conduct.

                                             10
standard when state alleged prejudice as a result of the withdrawal). We reverse the

conviction and remand for withdrawal of the guilty plea.

      Reversed and remanded.




                                           11
