                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0332

                             Steven Daniel Waldor, petitioner,
                                       Appellant,

                                             vs.

                                    State of Minnesota,
                                       Respondent.

                                Filed December 15, 2014
                                       Affirmed
                                    Schellhas, Judge

                             Hennepin County District Court
                               File No. 27-CR-11-38367

Craig E. Cascarano, Minneapolis, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant asserts that the district court erred by denying his postconviction

petition in which he challenged the validity of his guilty plea to first-degree driving while

impaired based on the imposition of a five-year conditional-release term. We affirm.
                                         FACTS

       Following a traffic stop and appellant Steven Daniel Waldor’s arrest, respondent

State of Minnesota charged Waldor with one count of first-degree driving while impaired

(DWI) in violation of Minn. Stat. §§ 169A.20, subds. 1(5), 3, .24, subds. 1(2), 2 (2010).

The criminal complaint states that the penalty for first-degree DWI is “3–7 YEARS

AND/OR $4,200–$14,000 PLUS A CONDITIONAL RELEASE TERM.”1

       Waldor retained a private attorney and participated in a pre-plea investigation

(PPI). The heading of the PPI report states that the penalty for first-degree DWI is “3–7

years and/or $4,200–$14,000 plus Conditional Release term.” And the last full sentence

of the PPI report states that “[Waldor] faces a 5-year term of Conditional Release,” and

“Conditional Release 5 Years” is repeated in bold text just above the signature line.

       Waldor negotiated a plea agreement with the state, which the prosecutor described

as “40-month commit to prison capped” with an opportunity for Waldor to argue for a

more lenient sentence. On the scheduled trial date, Waldor pleaded guilty to first-degree

DWI. He affirmed that he reads and writes English, had read the plea petition, had had

sufficient time to talk with his attorney, and had signed the plea petition. The plea

petition describes the negotiated agreement to include a “cap of 40 months in prison”

with leave to “request a lesser sentence” and states, “I understand that for felony [DWI]

1
   A person convicted of first-degree DWI and committed to the custody of the
commissioner of corrections is subject to a mandatory five-year conditional-release term
upon release from prison. Minn. Stat. § 169A.276, subd. 1(d) (2010). During this term,
the person must comply with “any conditions of release that the commissioner deems
appropriate,” and “[i]f the person fails to comply with any condition of release, the
commissioner 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.” Id.

                                             2
offenses and most sex offenses, a mandatory period of conditional release will be

imposed to follow any executed prison sentence, and violating the terms of that

conditional release may increase the time I serve in prison.” (Emphasis added.) The

district court accepted Waldor’s plea and found him guilty of first-degree DWI.

       Prior to sentencing, the state filed a “Memorandum of Law in Support of the Court

Sentencing [Waldor] to 40 Months’ Commit Plus a Five-Year Conditional Release

Term.” The state’s memorandum contains six additional references to conditional release

as a consequence of Waldor’s plea. Waldor moved for a downward dispositional

departure and, in the alternative, for a downward durational departure; his memorandum

in support of his motion contains no reference to conditional release. At a contested

sentencing hearing, the prosecutor stated that she “ask[ed] defense counsel just to review

in addition to the 40-month cap, that there is also a five-year conditional release term that

is noticed to [Waldor] in the Complaint, but [she] wanted [Waldor’s attorney] to

specifically address that on the record.” Waldor’s attorney then engaged Waldor in the

following colloquy:

              DEFENSE COUNSEL: Mr. Waldor, you understand that this
              is the type of crime wherein if you’re sent to prison, when
              you’re released, you have a five-year special parole. Do you
              understand that?
              WALDOR: Yes.
              DEFENSE COUNSEL: And if you goof up and break your
              parole, you could be sent back to prison for a long time.
              WALDOR: Yes.
              DEFENSE COUNSEL: You wouldn’t be entitled to a jury
              trial or anything like that. It would be—It would be next to
              automatic. Do you understand that?
              WALDOR: Yes.



                                             3
              DEFENSE COUNSEL: Nothing further, Your Honor,
              regarding that issue.

During the hearing, the prosecutor made two additional references to conditional release

as a consequence of Waldor’s plea. Following testimony from Waldor and arguments

from the prosecutor and Waldor’s attorney, the district court adjudicated Waldor guilty of

first-degree DWI and sentenced him to 40 months in prison, “plus five years of

conditional release time.” The court asked Waldor whether he had any questions

regarding the sentences, and Waldor said no. Moments later, the court reiterated that

“[t]here is a five-year conditional release period.”

       Nearly one year after sentencing, Waldor petitioned for postconviction relief,

asserting that he was not adequately informed of the mandatory conditional release at the

time of his plea of guilty. Waldor asked the postconviction court to allow him to

withdraw his plea of guilty or alternatively modify his sentence so that it does not exceed

the agreed-upon upper limit of the plea agreement—40 months. The court denied the

petition without an evidentiary hearing. This appeal follows.

                                      DECISION

       An appellate court reviews the denial of a petition for postconviction relief for

abuse of discretion. Hughes v. State, 851 N.W.2d 49, 51 (Minn. 2014). The denial of a

postconviction petition “will not be reversed unless the postconviction court exercised its

discretion in an arbitrary or capricious manner, based its ruling on an erroneous view of

the law, or made clearly erroneous factual findings.” Reed v. State, 793 N.W.2d 725, 729

(Minn. 2010).



                                              4
       “A petitioner seeking postconviction relief bears the ‘burden of proof of the facts

alleged in the petition . . . to establish the facts by a fair preponderance of the evidence.’”

Clifton v. State, 830 N.W.2d 434, 437 (Minn. 2013) (quoting Minn. Stat. § 590.04, subd.

3 (2012)). “The postconviction court must hold an evidentiary hearing ‘[u]nless the

petition and the files and records of the proceeding conclusively show that the petitioner

is entitled to no relief.’” Staunton v. State, 842 N.W.2d 3, 6–7 (Minn. 2014) (alteration in

original) (quoting Minn. Stat. § 590.04, subd. 1 (2012)).

       “A defendant does not have an absolute right to withdraw a guilty plea once it is

entered . . . .” State v. Hughes, 758 N.W.2d 577, 582 (Minn. 2008). Nevertheless, “a court

must allow a defendant to withdraw a guilty plea, even after sentencing, if ‘withdrawal is

necessary to correct a manifest injustice.’” State v. Theis, 742 N.W.2d 643, 646 (Minn.

2007) (quoting Minn. R. Crim. P. 15.05, subd. 1). “A manifest injustice exists where a

guilty plea is invalid because it was not accurate, voluntary, and intelligent.” Hughes, 758

N.W.2d at 582. “The intelligence requirement ensures that a defendant understands the

charges against him, the rights he is waiving, and the consequences of his plea.” State v.

Raleigh, 778 N.W.2d 90, 96 (Minn. 2010). “‘Consequences’ refers to a plea’s direct

consequences,” id., which are consequences that are, inter alia, “definite, immediate and

automatic,” Kaiser v. State, 641 N.W.2d 900, 907 (Minn. 2002). Imposition of a

conditional-release term is a direct consequence of a guilty plea “because it affects the

maximum amount of prison time [the defendant] may have to serve.” State v. Henthorne,

637 N.W.2d 852, 856 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002). “The

voluntariness requirement insures that a guilty plea is not entered because of any


                                              5
improper pressures or inducements.” State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000)

(quotation omitted). “Allowing the government to breach a promise that induced a guilty

plea violates due process.” Id. (quotation omitted). “On demonstration that a plea

agreement has been breached, the court may allow withdrawal of the plea . . . or alter the

sentence if appropriate.” Id.

       The Minnesota Supreme Court has addressed the validity of guilty pleas in

criminal-sexual-conduct cases involving the imposition of mandatory conditional-release

terms. See, e.g., James v. State, 699 N.W.2d 723, 730 (Minn. 2005) (reasoning that plea

agreement was induced by unfulfillable promise because defendant was not made aware

of applicable mandatory conditional-release term when he entered his guilty plea or when

he was sentenced and concluding therefore that plea agreement was not knowingly and

understandingly made and that defendant was entitled to withdraw his plea or have the

agreement modified in way that did not violate agreement); State v. Rhodes, 675 N.W.2d

323, 325, 327 (Minn. 2004) (reversing holding of court of appeals that defendant’s plea

was not intelligently entered and sentence must be modified, because postconviction

court could infer that defendant understood that conditional-release term would be

mandatory addition to plea bargain); State v. Wukawitz, 662 N.W.2d 517, 526 (Minn.

2003) (reasoning that defendant’s plea was induced by promise of maximum executed

sentence and concluding that addition of conditional-release term violated such promise

and that due-process considerations mandated that defendant be allowed to withdraw his

plea or have his sentence modified).




                                            6
      The statutorily mandated conditional-release term in a criminal-sexual-conduct

case is analogous to the statutorily mandated conditional-release term in felony DWI

cases, compare Minn. Stat. § 609.3455, subds. 6–8 (2010) (criminal sexual conduct), with

Minn. Stat. § 169A.276, subd. 1(d) (felony DWI), and we therefore apply the supreme

court’s reasoning to this case involving a felony DWI. See Oldenburg v. State, 763

N.W.2d 655, 658 n.1 (Minn. App. 2009) (applying cases involving conditional release for

criminal sexual conduct in case involving conditional release for felony DWI).

      In Rhodes, as in this case, the defendant argued that “his decision to plead guilty

was not intelligent because he was not informed about the mandatory [five-year] period

of conditional release at the time that he entered his guilty plea.” 675 N.W.2d at 327. The

supreme court rejected Rhodes’s argument, agreeing with the state that “the

postconviction court did not abuse its discretion in determining that Rhodes’s plea was

intelligently made.” Id. The supreme court noted that, when Rhodes entered his plea and

was sentenced, he was “on notice that the conditional release term for sex offenders was

mandatory and could not be waived by the district court.” Id. Moreover, the supreme

court stated that “the postconviction court could infer from Rhodes’s failure to object to

the presentence investigation’s recommendation, the state’s request at the sentencing

hearing and the court’s imposition of the sentence, that Rhodes understood from the

beginning that the conditional release term would be a mandatory addition to his plea

bargain.” Id.; cf. James, 699 N.W.2d at 726, 730 (concluding that defendant was entitled

to plea withdrawal or sentence modification where district court failed to inform him

about conditional-release term at either plea hearing or sentencing hearing and failed to


                                            7
impose conditional-release term at time of sentencing); State v. Jumping Eagle, 620

N.W.2d 42, 43, 45 (Minn. 2000) (concluding that defendant was entitled to plea

withdrawal or sentence modification where “mandatory conditional-release term was not

mentioned at [defendant]’s sentencing hearing and no such term was [initially] imposed

by the court”).

       In this case, Waldor pleaded guilty nearly a decade after a five-year conditional-

release term became a mandatory penalty for felony DWI. See 2001 Minn. Laws 1st

Spec. Sess. ch. 8, art. 11, §§ 8, 17, at 2115, 2120 (adding Minnesota Statutes section

169A.276 and providing for effective date of August 1, 2002). “[C]itizens are presumed

to know the law . . . .” State v. Calmes, 632 N.W.2d 641, 648 (Minn. 2001). As in

Rhodes, Waldor was “on notice that the conditional release term . . . was mandatory and

could not be waived by the district court.” See 675 N.W.2d at 327. Waldor nevertheless

argues that his guilty plea was not intelligent and knowing because he was “not entirely

aware of the consequences of his plea of guilty and the penalty therein”—i.e., “the actual

operation of the conditional release” and its “specifics.” He also appears to argue that his

guilty plea was not voluntary because the imposition of a five-year conditional-release

term was not expressly contemplated by the negotiated plea agreement, although required

by statute. Whether framed as an issue of intelligence or voluntariness, Waldor’s attacks

on the validity of his guilty plea fail for several reasons.

       First, Waldor was alerted to the applicability of the conditional-release term before

he pleaded guilty. The criminal complaint states that the penalty for first-degree DWI

includes a conditional-release term and references Minn. Stat. § 169A.276 (2010), which


                                               8
mandates a five-year conditional-release term following any executed prison sentence for

first-degree DWI. Second, the PPI report opens with wording identical to the complaint

that the penalty for first-degree DWI includes a conditional-release term, and it closes

with two distinct statements that the conditional-release term would be five years long.

Third, Waldor admits that the plea petition—which he read and signed—“indicates that

there is a mandatory period of conditional release that will follow any executed prison

sentence.” Waldor is correct that “the plea petition does not indicate the extent or scope

of the conditional release,” but it does indicate that an undefined “period of conditional

release” is “mandatory” and “will be imposed to follow any executed prison sentence.”

And the length of the conditional-release term is included in the PPI report. Fourth,

Waldor never objected to the state’s multiple references in its sentencing memorandum to

conditional release as a consequence of his plea or to the prosecutor’s references to

conditional release at the contested sentencing hearing, and he answered his attorney’s

questions about it at the prosecutor’s request. Fifth, even after the district court imposed a

sentence that included “five years of conditional release time” and reiterated that “[t]here

is a five-year conditional release period,” Waldor neither questioned the conditional-

release period nor objected to it. “[T]he postconviction court could infer . . . that

[Waldor] understood from the beginning that the conditional release term would be a

mandatory addition to his plea bargain.” See Rhodes, 675 N.W.2d at 327.

       Although Waldor accurately points out that, at his plea hearing, “there was no

mention on the record of a five-year conditional release,” we have previously stated “that

mere failure to mention the possibility of a conditional release at the time of the plea does


                                              9
not invalidate the plea.” Oldenburg, 763 N.W.2d at 659 (quotation omitted); see also

State v. Christopherson, 644 N.W.2d 507, 511 (Minn. App. 2002) (concluding that “the

fact that the conditional release was not mentioned to [defendant] at the time the original

plea was entered is not, in itself, enough to demonstrate that his plea was not accurate,

voluntary, and intelligent”), review denied (Minn. July 16, 2002).

      “[T]he allegations raised in a petition for postconviction relief must be more than

argumentative assertions without factual support.” Greer v. State, 836 N.W.2d 520, 522

(Minn. 2013) (quotation omitted). In his postconviction petition, Waldor made only

argumentative assertions that he was not adequately informed that a guilty plea to first-

degree DWI would subject him to a mandatory five-year conditional-release term after

any executed prison sentence. Based on the content of the complaint, PPI report, plea

petition, and on-the-record record statements of the prosecutor, Waldor’s attorney, and

the sentencing court, we conclude that Waldor was adequately informed that his guilty

plea to first-degree DWI would subject him to a mandatory five-year conditional-release

term after any executed prison sentence. The district court therefore did not abuse its

discretion by denying Waldor’s petition for postconviction relief without an evidentiary

hearing.

      Affirmed.




                                            10
