                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0823

                           Robel Belay Kubrom, petitioner,
                                     Appellant,

                                         vs.

                                 State of Minnesota,
                                    Respondent.

                                Filed April 6, 2015
                              Reversed and remanded
                                Rodenberg, Judge

                            Hennepin County District Court
                              File No. 27-CR-08-27399

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Lauermann, Assistant
Public Defender, Veronica Surges Shacka, Assistant Public Defender, Shannon Callahan,
Certified Student Attorney, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Katie Lynch, Certified Student Attorney, Minneapolis, Minnesota (for the
state)

      Considered and decided by Rodenberg, Presiding Judge; Chutich, Judge; and

Smith, Judge.

                                  SYLLABUS

      Where a defendant pleads guilty as part of a plea agreement for a definite-term

sentence and is informed of a statutorily mandated conditional-release term only by

reference to an undefined conditional-release term in the complaint, the defendant is
entitled to withdraw his guilty plea after the bargained-for definite sentence has been

executed and served in full.

                                     OPINION

RODENBERG, Judge

       Appellant Robel Belay Kubrom challenges the district court’s denial of his

postconviction petition to amend his sentence after the district court added a mandatory

conditional-release term to his bargained-for sentence that has now been fully served.

We reverse and remand.

                                        FACTS

       On June 4, 2008, appellant Robel Belay Kubrom was charged with first-degree

driving while impaired under Minn. Stat. §§ 169A.20, subd. 1(5), .24, subd. 1 (2008), and

driving after cancellation as inimical to public safety under Minn. Stat. § 171.24, subd.

5(1) (2008), for a May 17, 2008 driving incident. The complaint described each charge,

and identified the statute(s) violated and the possible penalty. For count I, the driving-

while-impaired charge, the penalty was described as “3-7 YEARS AND/OR $4,200-

$14,000 PLUS A CONDITIONAL RELEASE TERM.”

       A plea agreement was reached and, on July 11, 2008, appellant pleaded guilty to

first-degree driving while impaired and was sentenced.1 The plea petition stated that “if

[appellant] enter[s] a plea of guilty, the prosecutor will do the following . . . 46 mo[.]

commit concurrent” with another sentence and that the district court would


1
  The second charge for driving after cancellation was dismissed as part of the plea
agreement.

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“recommend[] boot camp” to the Minnesota Department of Corrections (DOC).                It

contained no reference to a mandatory conditional-release term but contained a reference

to a mandatory sentence: “[I]f a minimum sentence is required by statute, the court may

impose a sentence [of not less than] 36 months for this crime.” The number “36” was

handwritten. Neither a presentence investigation nor a sentencing guidelines worksheet

was ordered by or filed with the court. During the plea hearing, there was no mention of

a mandatory conditional-release term.          Neither did the district court’s pronounced

sentence contain such a term.

       The district court committed appellant to the commissioner of corrections for 46

months, with 47 days of jail credit for time served. While appellant was serving his

sentence, the district court twice modified his sentence to correct inaccuracies.2

       On April 29, 2013, the district court amended appellant’s sentence a third time,

adding the five-year conditional-release term after the DOC sent a letter to the sentencing

court on April 24, 2013, informing it that appellant’s sentence “did not mention the five

year conditional release period” required by Minn. Stat. § 169A.276, subd. 1(d) (2008).

The DOC requested that the district court review the file and provide the DOC with an

amended sentencing order including the conditional-release term. The district court did

so without notice to appellant or a hearing.


2
  The sentence pronounced by the judge at the sentencing hearing was 46 months, but
appellant’s initial sentence was recorded as 47 months. The district court modified the
sentence to 46 months and modified the sentence a second time to amend the jail credit to
52 days. Appellant was released from prison on supervised release after serving 31
months of his 46-month sentence. He subsequently violated his release conditions and
the balance of his 46-month sentence was executed.

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       Appellant petitioned the district court for postconviction relief, arguing that the

district court erred in adding the five-year conditional-release term to his sentence and

that appellant was entitled to either withdraw his plea or have his sentence amended to

conform to the original agreement. The district court denied appellant’s petition. This

appeal followed.

                                         ISSUE

       Did a reference in the complaint to an unspecified conditional-release term

sufficiently notify appellant of a statutorily mandated conditional-release term to permit

an amendment of appellant’s sentence to include the conditional-release term after

appellant’s bargained-for maximum sentence was executed?

                                       ANALYSIS

       The criminal penalty for first-degree driving while impaired includes

“imprisonment for not more than seven years” and “the mandatory penalties described in

section 169A.276.” Minn. Stat. § 169A.24, subd. 2 (2008). The mandatory-penalty

statute provides that the sentencing court “shall provide that after the person [convicted

of first-degree driving while impaired] has been released from prison the commissioner

[of corrections] shall place the person on conditional release for five years.” Minn. Stat.

§ 169A.276, subd. 1(d). It further provides that “[t]he commissioner [of corrections]

shall impose any conditions of release that the commissioner deems appropriate” and

permits the commissioner, “[i]f the person fails to comply with any condition of release,”

to revoke the conditional release “and order the person to serve all or part of the

remaining portion of the conditional release term in prison.” Id.


                                            4
       Appellant argues that, because he was not adequately informed of the mandatory

five-year conditional-release term before he pleaded guilty and was sentenced, the district

court improperly denied his postconviction petition. The state argues that the district

court properly denied appellant’s petition for postconviction relief because appellant was

sufficiently notified of the conditional-release term by the reference to a conditional-

release term in the complaint.

       A person convicted of a crime, and claiming a violation of constitutional rights,

may petition the district court in which the person was convicted to vacate a conviction or

sentence “or make other disposition as may be appropriate” when a direct appeal is not

available. Minn. Stat. § 590.01, subd. 1 (2014). A postconviction petition is proper to

seek withdrawal of a guilty plea after the time for a direct appeal has expired. See James

v. State, 699 N.W.2d 723, 727 (Minn. 2005) (stating that when a defendant seeks to

withdraw a guilty plea after sentencing, the defendant must raise it in a petition for

postconviction relief).

       A district court’s denial of a defendant’s petition to withdraw a guilty plea will be

reversed “only if the district court abused its discretion.”     State v. Henthorne, 637

N.W.2d 852, 854 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002).

Interpretation and enforcement of plea agreements are issues of law, which we review

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

       To be valid, a guilty plea must be accurate, voluntary, and intelligent. Brown v.

State, 449 N.W.2d 180, 182 (Minn. 1989). There is no absolute right to withdraw a

guilty plea, but a guilty plea may be withdrawn “upon a timely motion and proof . . . that


                                             5
withdrawal [of the guilty plea] is necessary to correct a manifest injustice.” Minn. R.

Crim. P. 15.05, subd. 1; State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). When a

guilty plea is not accurate, voluntary, or intelligent, a manifest injustice occurs. Theis,

742 N.W.2d at 646; see also Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). To be

intelligent, the guilty plea must be knowing and understanding to “insure that the

defendant understands the charges, the rights being waived and the consequences of the

guilty plea.” Brown, 449 N.W.2d at 182.

      A conditional-release term is a direct consequence of a defendant’s guilty plea

because it affects the maximum amount of prison time a defendant may serve.

Henthorne, 637 N.W.2d at 856.           “While conditional release is mandatory and

nonwaivable, it represents a significant modification to a criminal sanction” in cases

where the term was not initially pronounced or part of a sentence. Martinek v. State, 678

N.W.2d 714, 718 (Minn. App. 2004).

      When a statute mandates a period of conditional release, any sentence that omits

the conditional-release period is unauthorized.3 State v. Humes, 581 N.W.2d 317, 319

(Minn. 1998). An unauthorized sentence may be corrected without violating due process

when a defendant “has notice that a correction is required and has not developed a

crystallized expectation as to the finality of the sentence.” Martinek, 678 N.W.2d at 718.


3
  Most of the caselaw regarding the modification of a sentence to add a conditional-
release term arises from statutes relating to sex offenders. See Minn. Stat. §§ 609.346,
subd. 5 (1996), .3455, subd. 6 (2014). However, the language of the sex offender statutes
and the DWI statutes both include the mandatory language “shall” and have been
interpreted to be mandatory terms that cannot be waived. Humes, 581 at 319; see also
Minn. Stat. § 169A.276, subd. 1(d) (2014).

                                            6
However, the Minnesota Supreme Court has recognized that there is a due-process

limitation on a district court’s ability to modify a sentence. State v. Calmes, 632 N.W.2d

641, 645 (Minn. 2001). To determine whether a sentence modification impermissibly

alters a plea agreement, “courts look to what the parties to the plea bargain reasonably

understood to be the terms of the agreement.” Brown, 606 N.W.2d at 674 (quotation

omitted).

       In Humes, the supreme court held that the plain language of the statute required

that a conditional-release term “must be included in the sentence” for statutorily specified

offenders and could not be waived. 581 N.W.2d at 319. The supreme court concluded

that “the district court simply made an error of law in failing to include the mandatory

conditional release term” and that the district court had jurisdiction to modify the

sentence to add the term. Id. at 320.

       Six months after Humes, the supreme court decided State v. Garcia, 582 N.W.2d

879 (Minn. 1998). In Garcia, the defendant had originally pleaded guilty to a lesser

charge “in exchange for a sentence of 81 months.” Id. at 880. There was no mention of a

conditional-release term “in the plea petition nor was it addressed at any of the hearings.”

Id. at 880-81. The supreme court concluded that, while the district court has jurisdiction

to correct a defendant’s sentence to include the statutorily mandated conditional-release

term, modifying the defendant’s sentence to include a conditional-release term not

included in the plea agreement entitles the defendant to elect to either withdraw his guilty

plea or remain bound by the original plea agreement with the added conditional-release

term. Id. at 881-82. Where a defendant’s guilty plea contains an “unqualified promise


                                             7
[that] is unauthorized by law,” he “must be allowed to withdraw from the plea agreement

if he so chooses.” Id. at 882; see also Kochevar v. State, 281 N.W.2d 680, 687 (Minn.

1979) (stating that “[i]t 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”). The supreme

court rejected Garcia’s request for specific performance of the unauthorized plea

agreement, reasoning that the original sentence was “plainly illegal.”         Garcia, 582

N.W.2d at 881-82.

       Over the next several years, a series of supreme court opinions addressed the

circumstances under which a defendant would be allowed to withdraw a guilty plea when

a sentence was amended to add the statutorily mandated conditional-release term. See

State v. Wukawitz, 662 N.W.2d 517, 523-25 (Minn. 2003) (describing the leading cases

addressing sentences amended to add conditional-release terms). The supreme court has

consistently held that, when a defendant is informed of a possible conditional-release

term before sentencing, even if that term is not in the plea agreement or sentence, the

defendant has sufficient notice of the consequences of the plea and the plea will be

considered to have been voluntary and intelligent. See State v. Rhodes, 675 N.W.2d 323,

327 (Minn. 2004) (stating that when the defendant is on notice of a conditional-release

term before sentencing by way of reference to the term in the pre-sentence investigation

report, the defendant cannot later withdraw a guilty plea on that basis); Perkins v. State,

559 N.W.2d 678, 690 (Minn. 1997) (upholding the guilty plea as voluntary and informed

when the plea petition included a handwritten notation of the maximum penalty of 30

years imprisonment when the recommendation from the state was 115 months); Calmes,


                                             8
632 N.W.2d at 648 (stating that the defendant was “on notice that a statute required” a

conditional-release term when the term was added and subsequently removed from the

sentence); but see Uselman v. State, 831 N.W.2d 690, 693-94 (Minn. App. 2013)

(concluding that when the plea agreement indicated that there would be no conditional-

release term, plea withdrawal was appropriate).        In all of these earlier cases, the

defendant was informed of the conditional-release term either through a plea petition, a

pre-sentence investigation report, at the plea and/or sentencing hearings, or through some

combination of written and oral notifications.

       Minnesota’s appellate courts have also determined that, when a defendant’s

negotiated plea is induced by the dismissal of charges, the opportunity for probation, or

an agreed-upon sentence range, a sentence modification that adds the conditional-release

term does not violate the plea agreement, even if the defendant was not informed of the

possibility of conditional release before sentencing. See Oldenburg v. State, 763 N.W.2d

655, 659 (Minn. App. 2009) (upholding the district court’s denial of postconviction relief

because the record supported the district court’s finding that the appellant was on notice

of the conditional-release term and “[b]ecause the plea agreement did not prescribe a

definite sentence”); Brown, 606 N.W.2d at 675 (holding that even though no reference of

a conditional-release term was mentioned in any written agreements or at the hearings,

the duration of the sentence was not what induced a plea agreement from the defendant;

rather, “it was the the promise of an opportunity for probation and rehabilitation”).

       But, under Garcia, a plea agreement is violated when a conditional-release term is

added to a sentence after a defendant has pleaded guilty in exchange for a specific and


                                             9
definite sentence that would be extended by the addition of the conditional-release term.

Garcia 582 N.W.2d at 882; see also James, 699 N.W.2d at 730 (concluding that the

mandatory conditional-release term could not be imposed because the resulting sentence

“was in excess of the upper limit contemplated at the time [the defendant] entered into

the plea agreement” and he was not informed of the conditional-release term before

sentencing); Wukawitz, 662 N.W.2d at 526, 528-29 (holding that a guilty plea induced by

a promise of a maximum definite sentence that is later increased by a conditional-release

term requires that the defendant have the opportunity to withdraw the guilty plea or be

granted a modified sentence, if withdrawal of the guilty plea would unduly prejudice the

state); State v. Jumping Eagle, 620 N.W.2d 42, 44-45 (Minn. 2000) (stating that the

defendant agreed to a maximum sentence of 172 months and, because the defendant was

not informed of the conditional-release term, the sentence could not be increased from

that negotiated term); Henthorne, 637 N.W.2d at 857 (reversing the district court’s denial

of a petition to withdraw a guilty plea because the conditional-release term exceeded “the

maximum sentence contemplated by his original plea agreement”).

      Here, appellant was not notified in the plea petition or at the combined plea-and-

sentencing hearing that a conditional-release term was either mandatory or could be

imposed. The complaint stated: “PENALTY: 3-7 YEARS AND/OR $4,200-$14,000

PLUS A CONDITIONAL RELEASE TERM,” which language the state now argues

notified appellant of the mandatory conditional-release term. The district court adopted

the state’s reasoning. But, as the state acknowledges, no Minnesota case holds that a

general statement regarding a conditional-release term in a complaint, standing alone, is


                                           10
sufficient notice of a mandatory five-year conditional-release term. This case is therefore

one of first impression.

       We conclude that the rule in Wukawitz applies here. When a “waiver of rights and

plea were induced by the promise of a maximum sentence that the district court agreed to

honor by its acceptance of the plea, due process requires that the promise be fulfilled.”

See Wukawitz, 662 N.W.2d at 522. Appellant negotiated a definite-term sentence and

was not informed that he was subject to a mandatory five-year conditional-release term.

The complaint in this case did not specify the length of the applicable conditional-release

term. Neither did it specify that conditional release was mandatory. Importantly, adding

a five-year conditional-release term here would increase appellant’s total prison exposure

from 46 months (the negotiated term) to 106 months (the negotiated 46 months plus five

years). See Minn. Stat. § 169A.276, subd. 1(d) (stating that if a person fails to follow the

conditions, the commissioner of corrections may “revoke the person’s conditional release

and order the person to serve all or part of the remaining portion of the conditional

release term in prison” (emphasis added)). And appellant has now served the full 46-

month sentence to which he agreed, a sentence that was executed in full before the

district court added the conditional-release term. See Henthorne, 637 N.W.2d at 857

(holding that the district court abused its discretion when it imposed a conditional-release

term that exceeded the maximum sentence contemplated by the defendant when the

defendant was not given sufficient notice that such a conditional term was mandatory).

       We note that neither a presentence investigation nor a sentencing guidelines

worksheet was ordered or prepared here. See Minn. Stat. §§ 244.09, subd. 5(2) (stating


                                            11
that while the sentencing guidelines are advisory, the district court “shall follow the

procedures of the guidelines” in sentencing proceedings), 609.115, subd. 1(c) (requiring

the district court to mandate a presentence investigation when a defendant has been

convicted of a felony) (2008). If either of these reports had been prepared, the district

court likely would have identified the mandatory conditional-release term, informed

appellant of the statutorily mandated term before his sentencing, and either included it in

the original sentence or discovered that the parties had not truly arrived at a meeting of

the minds in the plea agreement.

       Appellant’s original sentence was unauthorized because it failed to include the

mandatory conditional-release term. The plea agreement was therefore based on an

unqualified promise that cannot now be fulfilled. See Garcia, 582 N.W.2d at 881-82.

“[T]he imposition of [a conditional-release term] after the fact would violate the plea

agreement.” Wukawitz, 662 N.W.2d at 529. Due process requires that appellant have the

opportunity to withdraw his plea. We reverse and remand to the district court to allow

appellant to withdraw his guilty plea.4

       Appellant argues in his pro se supplemental brief that he was deprived of effective

assistance of counsel during plea negotiation. Because we reverse and remand for the

reasons stated above, we do not reach this issue.

4
  Appellant argues on appeal that his sentence could not be modified because his original
sentence was almost complete when he petitioned the district court for postconviction
relief and that he had a crystallized expectation of finality. Because we reverse and
remand on the notice issue, and conclude that appellant is entitled to withdraw his guilty
plea, the state is entitled to be heard on remand concerning whether plea withdrawal
would unduly prejudice the prosecution, pursuant to Wukawitz, and, if so, what remedy is
appropriate. 662 N.W.2d at 528-29.

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                                    DECISION

      Appellant was not adequately notified of the statutorily mandated conditional-

release term before pleading guilty to first-degree driving while impaired under a

negotiated plea for a definite-term sentence. He is therefore entitled to withdraw his

guilty plea. We reverse the district court’s denial of appellant’s postconviction petition

and remand for further proceedings consistent with this opinion.

      Reversed and remanded.




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