                            This opinion will be unpublished and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
                                       A15-1046

                              Craig Allan Hargreaves, petitioner,
                                          Appellant,

                                              vs.

                                      State of Minnesota,
                                         Respondent.

                                   Filed February 16, 2016
                                          Affirmed
                                      Halbrooks, Judge

                               Kandiyohi County District Court
                                   File No. 34-CR-09-446

Bruce A. Rasmussen, Bruce A. Rasmussen & Associates, LLC, Minneapolis, Minnesota
(for appellant)

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

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

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

Reyes, Judge.

                           UNPUBLISHED OPINION

HALBROOKS, Judge

          Appellant challenges the district court’s denial of his postconviction petition. We

affirm.
                                         FACTS

       The state charged appellant Craig Hargreaves with eight counts of first-degree

criminal sexual conduct, four counts of third-degree criminal sexual conduct, three counts

of furnishing a person under 21 years of age with alcohol or drugs, one count of fifth-

degree controlled-substance crime, one count of aggravated first-degree witness

tampering, and one count of first-degree witness tampering. Hargreaves pleaded guilty

on June 19, 2009. The plea petition stated that appellant would receive a 144-month

sentence based on a criminal-history score of less than one point. But the plea petition

also stated that the sentence could increase if the pre-sentence investigation (PSI)

revealed other convictions. The area labeled “conditional release” in the appendix to the

plea petition was left blank.

       A PSI filed on July 23, 2009 indicated that appellant’s criminal-history score was

five, resulting in a presumptive sentence of 306 months for first-degree criminal sexual

conduct. The PSI also stated:

              You shall serve a maximum of one-third, or 102 months, of
              that time on supervised release and 10 years on conditional
              release, assuming you commit no disciplinary offense that
              may result in the execution of a disciplinary confinement
              period. In other words, if you commit a disciplinary offense
              in or out of prison, your actual time served in prison could be
              extended to the entire 306 months plus 10 years of conditional
              release time.

       Following a change in legal counsel, appellant moved to withdraw his guilty plea

on September 11, 2009. On September 22, 2009, the district court granted Hargreaves’s




                                            2
motion on the ground that the additional prison time violated the terms of the plea

agreement.

       On April 21, 2010, Hargreaves pleaded guilty to two counts of second-degree

criminal sexual conduct, one count of gross misdemeanor furnishing alcohol to persons

under age 21, one count of fifth-degree controlled-substance crime, and one count of

first-degree witness tampering. The state dismissed the other counts against him. The

plea petition stated that the prison time would be “143 mths max for 2 cts CSC.” The

area in the appendix next to “conditional release” was blank. Handwritten were the

words “if presumptive over 143, Def. opportunity to withdraw.” The second PSI also

specifically referred to a ten-year conditional-release term for each count.

       The sentencing hearing occurred on May 21, 2010. Hargreaves first indicated that

he wanted to discharge his attorney and withdraw his plea. The district court denied

Hargreaves’s request because no motion had been filed.            Hargreaves subsequently

decided to retain his attorney. The district court sentenced Hargreaves on count one to “a

period of 84 months; of that time period 56 months will be spent in actual custody of the

Commissioner of Corrections; up to 28 months can be spent on supervised release; plus

there’s an additional 10 year conditional release period as well.” On count two, the

district court pronounced a sentence of “143 months; . . . of the 143 months you will

spend 95 1/3 months in the custody of the Commissioner, and up to 47 2/3 months on

supervised release in addition to a 10 year period of conditional release.”

       Hargreaves challenged the denial of his oral motion to withdraw his second guilty

plea in a direct appeal to this court. State v. Hargreaves, No. A10-1611, 2011 WL


                                             3
2672242 (Minn. App. July 11, 2011), review denied (Minn. Sept. 28, 2011). We affirmed

the district court, concluding that Hargreaves’s claims, including allegations of attorney

misconduct and judicial bias, were unsupported by the record. Id. at *2.

      On March 29, 2012, the district court corrected the sentence on count 2 to 142

months based on the sentencing guidelines.           Approximately four months later,

Hargreaves (1) moved the district court to correct his sentence with regard to

withdrawing his plea or in the alternative to be sentenced in accordance with the

guidelines and (2) re-asserted his former claim of attorney misconduct. The district court

denied the motions, and Hargreaves did not appeal.

      Hargreaves subsequently received a memorandum dated February 27, 2013, from

the records management supervisor at the Minnesota Correctional Facility in Stillwater,

that informed him of the effect of Cote v. Roy, No. A11-727 (Minn. App. Nov. 15, 2011)

(order op.), review denied (Minn. Jan. 25, 2012), on his sentence. It indicated that a

“conditional release does not start until after the offender’s sentence is served,” which

meant “conditional release terms for predatory offender commitment offenses and sex-

related offenses must be served consecutively to the expiration of the sentence imposed.”

      On January 12, 2015, Hargreaves petitioned for postconviction relief on the

ground that his guilty plea was invalid because he had never agreed to the imposition of

consecutive conditional-release terms and had not agreed to a fine as part of the plea

petition. Hargreaves based his petition on the Minnesota Department of Corrections’

interpretation of Cote v. Roy in the memorandum. Hargreaves asserted that he would not




                                            4
have pleaded guilty had he known that his sentence could extend beyond 143 months. In

addition, Hargreaves asserted ineffective assistance of counsel.

       The state responded by arguing that the petition is untimely. The 2013 decision

referenced in Hargreaves’s petition was actually Cote v. Roy, which was decided on

November 14, 2011.        Because the case was decided in 2011, the petition for

postconviction relief was untimely. Addressing the merits of Hargreaves’s claim, the

state contended that the district court adequately advised Hargreaves of the ten-year

conditional-release terms at sentencing.

       The postconviction court denied Hargreaves’s petition without a hearing on the

grounds that it is untimely under Minn. Stat. § 590.01, subd. 4 (2014) and does not meet

any exception to the two-year time limit and because his claim of ineffective assistance of

counsel is meritless. This appeal follows.

                                     DECISION

       Hargreaves argues that the postconviction court erred by denying his petition

without a hearing on the ground that it is untimely under Minn. Stat. § 590.01, subd. 4.

       Minn. Stat. § 590.01, subd. 4 provides, in relevant part:

                      (a) No petition for postconviction relief may be filed
              more than two years after the later of:
                      (1) the entry of judgment of conviction or sentence if
              no direct appeal is filed; or
                      (2) an appellate court’s disposition of petitioner’s
              direct appeal.

                     (b) Notwithstanding paragraph (a), a court may hear a
              petition for postconviction relief if:
                     ....



                                             5
                      (3) the petitioner asserts a new interpretation of federal
              or state constitutional or statutory law by either the United
              States Supreme Court or a Minnesota appellate court and the
              petitioner establishes that this interpretation is retroactively
              applicable to the petitioner’s case;
                      ....
                      (5) the petitioner establishes to the satisfaction of the
              court that the petition is not frivolous and is in the interests of
              justice.

       A postconviction petition that fails to comply with the statute must be dismissed.

Stewart v. State, 764 N.W.2d 32, 34 (Minn. 2009). We review the postconviction court’s

denial of Hargreaves petition for abuse of discretion. Berkovitz v. State, 826 N.W.2d 203,

207 (Minn. 2013).

       Before the postconviction court, Hargreaves argued that his petition is timely

under the exceptions listed under Minn. Stat. § 590.01, subd. 4(b), based on his assertion

of a new interpretation of law retroactively applicable to his case and because he has

brought a non-frivolous petition that should be allowed in the interests of justice. The

postconviction court denied his petition on the grounds that it was filed outside of the

two-year time limit and it does not meet any of the exceptions.

       The postconviction court found that Minn. Stat. § 609.3455, subd. 6 (2008), which

makes ten-year conditional-release terms mandatory for Hargreaves’s sentence, “was

clear on its face and in effect at the time of [Hargreaves’s] sentencing.” It also found that

Hargreaves based his petition on this court’s interpretation of Minn. Stat. § 609.3455,

subd. 6 in State ex rel. Peterson v. Fabian, 784 N.W.2d 843 (Minn. App. 2010), which

was issued on June 29, 2010.        Hargreaves filed his direct appeal to this court on

September 14, 2010—after Peterson was decided.              Thus, the postconviction court


                                              6
reasoned that Hargreaves’s argument is not properly based on a new interpretation of

statutory law under Minn. Stat. § 590.01, subd. 4(b)(3).

       The postconviction court also found, contrary to Hargreaves’s contention, that

Hargreaves was apprised of the ten-year conditional-release terms at sentencing. Further,

the postconviction court understood Hargreaves’s argument to be that his executed

sentence, coupled with the absence of the conditional-release terms in the appendix to the

plea agreement, misled him. But the postconviction court noted that Hargreaves did not

request withdrawal of his plea on those grounds to the district court when he had the

opportunity to do so at the sentencing hearing or on direct appeal. The postconviction

court therefore concluded that Hargreaves’s petition does not meet the interests-of-justice

exception to the two-year time limit for filing a petition for postconviction relief. Minn.

Stat. § 590.01, subd. 4(b)(5).

       On appeal, Hargreaves narrows his argument to the interests-of-justice exception

to the two-year time limit for filing a postconviction petition. See id. The supreme court

has decided that the interests-of-justice exception only applies in “exceptional situations.”

Gassler v. State, 787 N.W.2d 575, 586 (Minn. 2010). A petition is frivolous under the

interests-of-justice exception “if it is perfectly apparent, without argument, that the

petition is without merit.” Id. The interests-of-justice language from the exception refers

to the reason that the petition is filed after the two-year time limit in Minn. Stat. § 590.01,

subd. 4(a). Sanchez v. State, 816 N.W.2d 550, 557 (Minn. 2012).

              When the only injustice claimed is identical to the substance
              of the petition, and the substance of the petition is based on
              something that happened before or at the time a conviction


                                              7
              became final, the injustice simply cannot have caused the
              petitioner to miss the 2-year time limit . . . and therefore is not
              the type of injustice contemplated [by the exception.]

Id. Stated differently, to satisfy that exception, “a claim must have substantive merit and

the defendant must not have deliberately and inexcusably failed to raise the issue on

direct appeal.” Gassler, 787 N.W.2d at 586 (citing Deegan v. State, 711 N.W.2d 89, 93-

94 (Minn. 2006)).

       Hargreaves contends that his petition has substantive merit because the district

court made him an unqualified promise that his sentence would not exceed 143 months,

and that promise was broken when he received the February 27, 2013 memorandum from

the correctional facility notifying him that his mandatory conditional-release term would

run consecutive rather than concurrent to his executed prison sentence. Hargreaves

argues that the effect of this information changed the length of his sentence to exceed 143

months. He also claims that he could not have raised the issue earlier because he was not

notified that his mandatory ten-year conditional-release terms run consecutive to his

prison sentences until he received the memorandum. We disagree.

       A criminal defendant does not have an absolute right to withdraw a guilty plea.

State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004). But a district court “must allow a

defendant to withdraw a guilty plea upon a timely motion and proof to the satisfaction of

the court that withdrawal is necessary to correct a manifest injustice.” Minn. R. Crim.

P. 15.05, subd. 1. If a plea is not accurate, voluntary, and intelligent, a manifest injustice

exists. Rhodes, 675 N.W.2d at 326. “A guilty plea is involuntary when it rests in any

significant degree on an unfulfilled or unfulfillable promise, including a promise of a


                                              8
sentence unauthorized by law.” Uselman v. State, 831 N.W.2d 690, 693 (Minn. App.

2013) (quotations omitted). If a conditional-release term that exceeds the maximum

executed sentence agreed to in the plea agreement is added to a defendant’s sentence

without the defendant’s knowledge, the plea was unintelligently made. Id.

      Hargreaves argues that this case is like Uselman, because the district court made

him a promise that his sentence would not exceed 143 months and then broke it. The

state contends that this case is more like Rhodes because there was no promise that a

conditional-release term would not apply and Hargreaves was given notice of the

mandatory consecutive conditional-release term. In Uselman, we concluded that the

defendant was entitled to withdraw his guilty plea on the ground that it was not knowing

and voluntary because it was based on a plea petition that contained a handwritten “N/A”

in the blank space addressing the conditional-release term. 831 N.W.2d at 693-94. We

distinguished Uselman from Rhodes, where the plea agreement was silent on whether a

conditional-release term would be imposed. Id. at 693.

             The district court could infer [in Rhodes] that the defendant
             had understood all along that the conditional release term was
             a part of his plea bargain because it was mandatory, it was not
             mentioned in any plea petition, and the defendant failed to
             object to the presentence report’s recommendation, the state’s
             request at sentencing, or the court’s imposition of the
             sentence, each of which included the conditional release
             period.

Id.

      Here, the facts are nearly identical to those in Rhodes. The application of the ten-

year conditional-release terms was mandatory.        The district court unambiguously



                                           9
informed Hargreaves at the sentencing hearing that it was imposing mandatory

conditional-release terms for both counts of second-degree criminal sexual conduct that

were “additional” or “in addition to” his executed prison sentences.         Both PSIs

recommended conditional-release terms, registration as a predatory offender, and a DNA

test (all of which were statutorily mandated terms). And the district court’s order for

Hargreaves’s warrant of commitment for both counts stated, “Conditional release after

confinement has been set at 10 years.”            Hargreaves could have objected to the

conditional-release terms at the sentencing hearing or on appeal, but he did not.

Therefore, Hargreaves’s postconviction petition is meritless.

       Because Hargreaves’s postconviction petition does not meet the interests-of-

justice exception to the statutory time limit, the district court properly exercised its

discretion by denying the petition as untimely.

       Affirmed.




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