Jeremy Shane Zimmermann v. State of Minnesota

This opinion will be unpublished and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
A14-1114

Jeremy Shane Zimmermann, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 13, 2015
Affirmed
Reilly, Judge

Ramsey County District Court
File No. 62-CR-11-5420

Cathryn Middlebrook, Chief Appellate Public Defender, Shannon Callahan (certified
student attorney), St. Paul, Minnesota (for appellant)

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

John J. Choi, Ramsey County Attorney, Laura Rosenthal, Assistant County Attorney,
Robert C. Whipps (certified student attorney), St. Paul, Minnesota (for respondent)

Considered and decided by Kirk, Presiding Judge; Ross, Judge; and Reilly, Judge.

UNPUBLISHED OPINION

REILLY, Judge

Appellant argues that the district court abused its discretion by denying

postconviction relief of plea withdrawal or modification of his sentence. He contends

that his Alford plea to failure to register as a predatory offender was not intelligent or
voluntary because he was not informed of and did not agree to the imposition of a

mandatory ten-year conditional-release term. We affirm.

FACTS

Appellant Jeremy Shane Zimmermann was charged with failure to register as a

predatory offender under Minn. Stat. § 243.166, subd. 5(a) (2010). The complaint stated

that the maximum sentence for the offense was “5 years or $10,000 fine, or both.” On

October 26, 2011, he signed a petition agreeing to enter an Alford plea to the charge in

exchange for a sentence in accordance with the Minnesota Sentencing Guidelines at the

“low end of [the] box,” concurrent with time that he was serving for another offense. The

plea petition stated that Zimmermann had been told by his attorney and understood that

“the maximum penalty that the court could impose for this crime . . . is imprisonment for

5 years.” The petition further stated that Zimmermann had been told by his attorney and

understood: “If a conditional release is required by statute, a mandatory period of

conditional release will be imposed to follow any executed sentence. Violating the terms

of the conditional release may increase the time the defendant serves in prison.” At the

plea hearing that day, the parties informed the district court that the plea agreement called

for an Alford plea to the charge and a “[g]uideline low end of the box” sentence.

Zimmermann confirmed that he understood and wished to accept the plea agreement, had

discussed the plea petition with his attorney and read it in its entirety, and had been given

enough time to speak with his attorney. He pleaded guilty to failure to register as a

predatory offender.

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 A presentence investigation (PSI) was completed, and the PSI report identified

Zimmermann as being a “level 3 sex offender.” Minn. Stat. § 244.052 (2010) provides a

process by which a committee, established by the commissioner of corrections, considers

various factors to assign a risk level to a predatory offender who is about to be released

from confinement.

[W]hen a court commits a person to the custody of the
commissioner of corrections for [failure to register as a
predatory offender] and, at the time of the violation, the
person was assigned to risk level III under section 244.052,
the court shall provide that after the person has completed the
sentence imposed, the commissioner shall place the person on
conditional release for ten years.

Minn. Stat. § 243.166, subd. 5a (2010).

The PSI report recommended a guideline sentence of 39 months, stated that the

low end of the guidelines range was 34 months, and did not mention a conditional-release

term. At the sentencing hearing on December 15, 2011, the district court confirmed with

the parties that the plea agreement called for a guideline “low end of the box, concurrent”

sentence. The parties requested that Zimmermann be sentenced in accordance with the

plea agreement, and Zimmermann was sentenced to serve a 34-month commitment.

A week after the sentencing hearing, the department of corrections wrote to inform

the district court that Zimmermann was a risk-level-III offender and was required by

statute to be placed on conditional release for ten years following the completion of his

prison sentence. On February 3, 2012, the district court ordered Zimmermann to be

placed on conditional release for ten years after completing his sentence.

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 Zimmermann filed a postconviction petition on January 22, 2014, seeking either

plea withdrawal or modification of his sentence to exclude the ten-year conditional-

release term. He argued that his guilty plea was not intelligent or voluntary because he

was not informed or aware of the mandatory ten-year conditional-release term when he

entered the plea and because the plea agreement was not fulfilled. The district court

denied postconviction relief without a hearing, determining that the postconviction

petition was frivolous and without merit. This appeal followed.

DECISION

A denial of postconviction relief is reviewed to determine whether the district

court abused its discretion by making a decision that “is based on an erroneous view of

the law or is against logic and the facts in the record.” Riley v. State, 819 N.W.2d 162,

167 (Minn. 2012) (quotation omitted). Factual determinations are reviewed under a

clearly erroneous standard and will not be reversed unless they are not factually

supported by the record, but legal conclusions are reviewed de novo. Id. Assessment of

the validity of a guilty plea presents a question of law. State v. Raleigh, 778 N.W.2d 90,

94 (Minn. 2010).

A valid guilty plea must be accurate, voluntary, and intelligent. Id. Zimmermann

asserts that his plea was neither intelligent nor voluntary. First, Zimmermann argues that

his plea was not intelligent because he did not understand that a ten-year conditional-

release term was a consequence of the plea and would be part of his sentence. The

requirement that a plea be intelligent “ensures that a defendant understands the charges

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

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816 N.W.2d 480, 507 (Minn. 2012) (quotation omitted). The term “consequences” as

used in this context “refers to a plea’s direct consequences, namely the maximum

sentence and fine.” Raleigh, 778 N.W.2d at 96. The imposition of a conditional-release

term is a direct consequence of a plea because it affects the maximum amount of prison

time that a defendant may have to serve. State v. Henthorne, 637 N.W.2d 852, 856

(Minn. App. 2002), review denied (Minn. Mar. 27, 2002).

Second, Zimmermann argues that his plea was not voluntary because he was

induced to plead guilty by a plea agreement that called for only a 34-month prison

sentence, and he would not have pleaded had he known that his sentence would include

the conditional-release term. The requirement that a plea be voluntary “ensures a

defendant is not pleading guilty due to improper pressure or coercion.” Raleigh, 778

N.W.2d at 96. “To determine whether a plea is voluntary, the court examines what the

parties reasonably understood to be the terms of the plea agreement.” Id. “When a plea

rests in any significant degree on a promise or agreement of the prosecutor, so that it can

be said to be part of the inducement or consideration, such promise must be fulfilled.”

James v. State, 699 N.W.2d 723, 728 (Minn. 2005) (alteration and quotation omitted).

Before a guilty plea is accepted in a felony case, the judge must ensure that

defense counsel has told the defendant, and the defendant understands, that for “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 the defendant serves in prison.” Minn. R. Crim. P. 15.01, subd. 1(6)(k); see also

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Minn. R. Crim. P. 15 cmt. (stating that “a failure to include all of the interrogation set

forth in Rule 15.01 will not in and of itself invalidate a plea of guilty”).

A defendant who is subject to a mandatory conditional-release term is entitled to

plea withdrawal or modification of his sentence if his plea agreement called for a

sentence of a definite term and the conditional-release term was not mentioned in the plea

petition, during plea negotiations, or during the plea or sentencing hearing. See, e.g.,

James, 699 N.W.2d at 725-26, 730; State v. Wukawitz, 662 N.W.2d 517, 520, 526-29

(Minn. 2003); State v. Jumping Eagle, 620 N.W.2d 42, 43-45 (Minn. 2000); State v.

Garcia, 582 N.W.2d 879, 880-82 (Minn. 1998). But, a defendant is not entitled to plea

withdrawal or sentence modification if the plea agreement did not call for a sentence of a

definite term, and a conditional-release term is imposed. See, e.g., Oldenburg v. State,

763 N.W.2d 655, 659 (Minn. App. 2009); State v. Christopherson, 644 N.W.2d 507, 511-

12 (Minn. App. 2002), review denied (Minn. July 16, 2002). And a defendant also is not

entitled to plea withdrawal or sentence modification if a conditional-release term is

imposed at sentencing without objection from the defendant, even if conditional release

was not mentioned before sentencing. See State v. Rhodes, 675 N.W.2d 323, 325-27

(Minn. 2004).

In this case, Zimmermann signed a plea petition that notified him of conditional

release. By signing the petition, he affirmed that he had been told by his attorney and

understood: “If a conditional release is required by statute, a mandatory period of

conditional release will be imposed to follow any executed sentence. Violating the terms

of the conditional release may increase the time the defendant serves in prison.”

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Zimmermann confirmed during the plea hearing that he had discussed the plea petition

with his attorney and read it in its entirety and that he had been given enough time to

speak with his attorney.

The plea agreement called for a sentence in accordance with the sentencing

guidelines at the low end of the guidelines range but did not specify a definite duration.

The PSI report notified the parties and the district court that the low end of the guidelines

range was 34 months and further stated that Zimmermann was a risk-level-III offender.

The sentencing guidelines specifically refer to a mandatory ten-year conditional-release

term for a risk-level-III offender convicted of failure to register as a predatory offender.

See Minn. Sent. Guidelines II.E (2010) (“Several Minnesota statutes provide for

mandatory conditional release terms that must be served by certain offenders once they

are released from prison. . . . If a person is sentenced for failure to register as a predatory

offender and the person was assigned a risk level III under M.S. § 244.052, the person

shall be placed on conditional release for ten years.”).

Additionally, although the district court did not impose conditional release at

sentencing, we consider it significant that Zimmermann’s sentence was corrected to

include the mandatory conditional-release term less than two months after the sentencing

hearing. We note that the plea hearing in this case did not conform to the best practice

and that conditional release should be discussed with a defendant during a plea hearing in

accordance with Minn. R. Crim. P. 15.01, subd. 1(6)(k). But because the plea petition

notified Zimmermann of mandatory conditional release and he confirmed that he had

discussed the plea petition with his attorney and read it in its entirety, we conclude that

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Zimmermann understood the direct consequences of his plea and that his plea was

intelligent. Moreover, because mandatory conditional release was addressed in the plea

petition, and because the plea agreement called for a sentence in accordance with the

sentencing guidelines when the guidelines refer to a mandatory ten-year conditional-

release term, we conclude that the terms of the plea agreement were fulfilled and that

Zimmermann’s plea was voluntary. The district court did not abuse its discretion by

denying postconviction relief.1

Affirmed.

1
Zimmermann raises a Blakely issue for the first time in his reply brief, arguing that the
district court impermissibly imposed a sentence based on his status as a risk-level-III
offender without an admission or jury finding that he qualified as such an offender.
Because this argument was not presented to the district court and was not raised in
Zimmermann’s principal brief, it has been waived. See Schleicher v. State, 718 N.W.2d
440, 445 (Minn. 2006) (stating that an argument raised for the first time on appeal from a
denial of postconviction relief is waived); State v. Petersen, 799 N.W.2d 653, 660 (Minn.
App. 2011) (stating that an argument that is not raised in a principal brief on appeal is
waived and may not be revived in a reply brief), review denied (Minn. Sept. 28, 2011).

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