                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2016).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-1247

                                  State of Minnesota,
                                      Respondent,

                                          vs.

                                  Kyle Jon Wilczek,
                                     Appellant.

                               Filed February 13, 2017
                                      Affirmed
                                  Bjorkman, Judge


                             Aitkin County District Court
                              File No. 01-CR-09-1140

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

James P. Ratz, Aitkin County Attorney, Nathan T. Benusa, Assistant County Attorney,
Aitkin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Peterson, Presiding Judge; Johnson, Judge; and

Bjorkman, Judge.

                       UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges the imposition of a five-year conditional-release term and the

revocation of his probation for felony driving while impaired (DWI). Because we conclude
that the district court properly imposed the mandatory conditional-release term and did not

abuse its discretion by revoking appellant’s probation, we affirm.

                                         FACTS

       In 2009, appellant Kyle Jon Wilczek pleaded guilty to first-degree DWI, which

carries a mandatory five-year period of conditional release upon the expiration of a

defendant’s prison term. Minn. Stat. § 169A.276 (2008). Pursuant to the plea agreement,

the state dismissed the remaining charges and recommended a guidelines sentence. At the

plea hearing, Wilczek acknowledged that he would be subject to a conditional-release

period if the district court executed his sentence. And his signed plea petition stated, in

bold type: “I understand I am subject to a five year conditional release period.” 1 The

district court accepted Wilczek’s plea, imposed a stayed 48-month sentence, and placed

Wilczek on probation in accord with the plea agreement. Wilczek’s probation conditions

required him to, among other things, remain law-abiding, keep his probation officer

apprised of his address, abstain from using alcohol and other controlled substances, inform

his probation officer of any law-enforcement contact, and cooperate with random searches

of his residence.

       On July 7, 2014, Wilczek admitted he violated his probation by committing two

driving after cancellation—inimical to public safety (DAC-IPS) offenses. The district

court imposed an intermediate sanction and continued Wilczek’s probation. In February

2016, Wilczek’s probation officer filed another violation report, alleging that Wilczek had


1
  The presentencing worksheet also stated that “Conditional Release Statutes Apply if
Prison Sentence is Executed: 5 years.”

                                            2
violated probation by (1) failing to tell his probation officer of a changed address within

72 hours; (2) using unauthorized chemical substances; (3) failing to remain law-abiding;

(4) failing to tell his probation officer of law-enforcement contact within 72 hours;

(5) failing to cooperate with a search of his residence; and (6) failing to follow the

instructions of probation.

       Following a probation-violation hearing, the district court found clear and

convincing evidence that Wilczek violated his probation by using chemical substances,

failing to inform his probation officer within 72 hours of a law-enforcement contact, and

failing to cooperate with a search of his residence. The district court held a dispositional

hearing two weeks later, during which it found that Wilczek’s violations were intentional

and inexcusable and that any consequence other than executing his sentence “would

unduly depreciate the probation process.”        Accordingly, the district court revoked

Wilczek’s probation and sentenced him to 48 months’ imprisonment to be followed by

five years of conditional release. Wilczek appeals.

                                     DECISION

I.     The district court did not err by imposing the mandatory conditional-release
       term when executing Wilczek’s stayed sentence.

       For the first time on appeal, Wilczek challenges the validity of his sentence. Our

supreme court has held that a defendant may challenge his underlying sentence on appeal

from an order revoking probation. State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987).

We review the legality of a sentence de novo. State v. Modtland, 695 N.W.2d 602, 605

(Minn. 2005).



                                             3
       Wilczek argues that the district court erred by imposing the five-year conditional-

release term for the first time when it revoked his probation and executed his sentence.

Wilczek contends that the district court was only authorized to impose the term at the time

of sentencing. This argument is unavailing. The statutory language defeats Wilczek’s

argument: “[W]hen the court commits a person to the custody of the commissioner of

corrections under this subdivision, it shall provide that after the person has been released

from prison the commissioner shall place the person on conditional release for five years.”

Minn. Stat. § 169A.276, subd. 1(d) (emphasis added).

       Moreover, caselaw recognizes a district court’s authority—and obligation—to

impose the conditional-release period under Minn. Stat. § 169A.276. See State v. Calmes,

620 N.W.2d 61, 63 (Minn. App. 2000) (“Because the conditional release term is

mandatory, a district court has jurisdiction to amend a defendant’s sentence to include a

conditional release term.”), aff’d, 632 N.W.2d 641 (Minn. 2001). In Calmes, our supreme

court affirmed the amendment of a sentence to include a conditional-release term three

years after the sentence was executed. 632 N.W.2d at 647. In rejecting Calmes’s due-

process argument, the supreme court reasoned that “citizens are presumed to know the

law,” and because the court had issued opinions that a conditional-release term is

mandatory and nonwaivable, Calmes “could not have developed a reasonable crystallized

expectation of finality in a sentence that did not include a mandatory and nonwaivable

condition.” Id. at 648.

       Wilczek’s reliance on Kubrom v. State, 863 N.W.2d 88 (Minn. App. 2015), is

misplaced. Kubrom’s plea agreement included an executed, definite-term sentence but was


                                             4
silent with respect to conditional release.       863 N.W.2d at 90.   As his release date

approached, the department of corrections asked the district court to amend Kubrom’s

sentence to add the five-year conditional-release term. Id. at 90-91. The district court did

so.   Because modification of the sentence to include the conditional-release term

impermissibly altered Kubrom’s plea agreement, we reversed and remanded for plea

withdrawal. Id. at 94-95.

       Unlike Kubrom, Wilczek did not agree to a definite-term sentence. And he knew

about the conditional-release term when he entered his guilty plea. His plea petition

expressed his understanding that he was “subject to a five year conditional release period.”

At the plea hearing, Wilczek’s attorney stated that the conditional-release period would be

imposed if Wilczek violated probation and his sentence was executed.               Wilzcek

acknowledged his understanding of this fact. On this record, imposition of the conditional-

release period does not violate Wilczek’s plea agreement. See Oldenburg v. State, 763

N.W.2d 655, 659 (Minn. App. 2009) (“Because the plea agreement did not prescribe a

definite sentence, we conclude that the later addition of the conditional-release term did

not violate the plea agreement.”).

       In sum, Wilczek was not committed to the commissioner of corrections until the

district court revoked his probation and executed his sentence. At that time, the district

court was authorized—and required—to impose the five-year conditional-release period as

contemplated by the plea agreement.




                                              5
II.      The district court did not abuse its discretion by revoking Wilczek’s probation.

         Before revoking probation, a district court “must (1) designate the specific condition

or conditions that were violated; (2) find that the violation was intentional or inexcusable;

and (3) find that need for confinement outweighs the policies favoring probation.” State v.

Austin, 295 N.W.2d 246, 250 (Minn. 1980). 2 A district court “has broad discretion in

determining if there is sufficient evidence to revoke probation and should be reversed only

if there is a clear abuse of that discretion.” Id. at 249-50. We also review a district court’s

evidentiary rulings for abuse of discretion. State v. Flores, 595 N.W.2d 860, 865 (Minn.

1999).

         Wilczek argues that the district court violated his due-process right to present

mitigating evidence at the probation-violation hearing by excluding his proffered testimony

that “he did not follow his [probation officer’s] instruction to call after submitting a

[urinalysis] because another probation employee told him not to call.” Wilczek contends

the district court erroneously excluded this testimony as hearsay. We need not decide this

question because it has no bearing on the district court’s revocation decision. The district

court did not find clear and convincing evidence that Wilczek violated probation by failing

to contact his probation officer after a chemical test. Because the excluded evidence relates

to an alleged violation that the state did not prove, any evidentiary error is harmless. Minn.

R. Crim. P. 31.01 (“Any error that does not affect substantial rights must be disregarded.”).




2
    Wilczek does not challenge the adequacy of the district court’s Austin findings.

                                               6
          Finally, Wilczek asserts the district court denied him due process by basing its

revocation decision on conduct that was not alleged in the violation report. He contends

that the court’s reference to his prior driving-after-cancellation convictions as evidence that

“Wilczek [was] ‘prepared . . . to disregard’ his conditions of probation” violated his right

to notice and the opportunity to be heard. But Wilczek did not make a due-process

argument in the district court. As the supreme court held in Austin, a defendant who does

not raise a due-process violation at the revocation hearing forfeits the issue. 295 N.W.2d.

at 252.

          Affirmed.




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