State of Minnesota, Respondent, vs. Cleave Gordon Erickson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-130

 

 

State of Minnesota,

Respondent,

 

vs.

 

Cleave Gordon Erickson,

Appellant.

 

 

Filed September 2, 2003

Affirmed

Anderson, Judge

 

Ramsey County District Court

File No. KX-97-155

 

John Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414-3230 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Harten  , Presiding Judge, Anderson, Judge, and Wright, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant challenges the denial of his petition to reduce his sentence or withdraw his guilty plea for his 1997 conviction of third-degree criminal sexual conduct.  Appellant argues that the district court abused its discretion in refusing to grant relief in accord with State v. Wukawitz, 644 N.W.2d 852 (Minn. App. 2002), aff'd in part, rev'd in part, 662 N.W.2d 517 (Minn. 2003).  We affirm.

FACTS

 

            On March 26, 1997, appellant Cleave Gordon Erickson, pursuant to an agreement, pleaded guilty to one count of criminal-sexual conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(b) (1996).  This charge stemmed from his sexual relationship with a 15-year-old, who was more than 24 months younger than appellant.  In exchange for appellant's plea, the state promised to seek a stayed presumptive sentence of 23 months in prison. 

            The district court imposed the agreed-upon sentence and placed appellant on probation for a period not to exceed 15 years.  As part of his probation, appellant was also sentenced to serve 91 days in jail, remain law-abiding, have no contact with the victim, have no unsupervised contact with any females under the age of 16, successfully complete sex-offender treatment, pay fees, and make restitution.  Neither the plea petition nor the transcript from the sentencing or plea hearing contain any mention of the mandatory conditional-release term. 

            In October 1998, based on the discovery that appellant was the father of a child born to a 17-year-old and on appellant's lack of amenability to probation, the district court vacated the stay of execution and imposed the 23-month sentence.  The district court told appellant that after he served 15 and 1/3 months in prison he would be eligible to serve the last 7 and 2/3 months of his sentence on supervised release.  The district court also advised appellant that

you will be on a conditional release after the first 15 1/3 months of your sentence, and while you're on the conditional release programthat will last for five yearsif you violate either the terms of the conditional release program or of your supervised release program, you may be returned to the institution for the remaining period under either conditional release or supervised release, depending upon what terms you violate. 

 

(Emphasis added.)  This was the first time appellant learned of the conditional release term.

            In February 7, 2002, appellant sought, by motion, a modification of his sentence.  The motion was denied by the district court and appellant did not appeal this decision.  Instead, appellant again asked the district court to modify the sentence pursuant to State v. Wukawitz, 644 N.W.2d 852 (Minn. App. 2002), which has subsequently been reviewed by the supreme court and affirmed in part and reversed in part.  State v. Wukawitz, 662 N.W.2d 517, 529 (Minn. 2003).  The district court denied appellant's request and this postconviction appeal followed.

D E C I S I O N

 

It is well established that before we can determine whether appellant's plea agreement was violated, we must first determine whether his challenge to the conditional-release requirement was made in a timely manner.  State v. Scott, 529 N.W.2d 11, 12 (Minn. App. 1995), review denied (Minn. Mar. 14, 1995). 

Appellant first learned of the conditional-release requirement in October 1998.  Yet appellant waited until February 2002 to seek a withdrawal of his plea or to challenge the imposition of the conditional-release requirement.  Appellant then chose not to appeal the district court's denial of his petition to withdraw his plea and instead elected to seek a sentence modification on January 21, 2003.  It is the denial of the request for a sentence modification that appellant challenges in this appeal. 

Appellant waited over three years after first becoming aware of the conditional-release requirement to raise his objection to that requirement.  This nearly 40-month delay far exceeds the 8 and 22-month delays in State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1986), and Doughman v. State, 351 N.W.2d 671, 675 (Minn. App. 1984) which this court found untimely.  Thus we conclude that appellant's petition for relief was untimely and accordingly, we affirm the district court's denial of appellant's request for sentence modification.  In addition, we note that appellant's second postconviction request did not seek withdrawal of the guilty plea, which the supreme court in Wukawitz held must be the first option considered in remedying a later addition of the conditional-release term. 

            Affirmed.