State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0095

State of Minnesota,
Respondent,

vs.

Thomas Kendricks, III,
Appellant.

Filed December 11, 2017
Affirmed in part, reversed in part, and remanded
Bjorkman, Judge

Blue Earth County District Court
File Nos. 07-CR-14-168, 07-CR-14-169, 07-CR-14-900

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

Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County
Attorney, Mankato, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, A ssistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Bjorkman, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges the denial of his postconviction petition, arguing that the
district court erred by refusing to modify his sentence or to permit him to withdraw his

2
guilty plea. We affirm the denial of his plea-withdrawal motion because appellant was
adequately informed of the conditional-release requirement. But we reverse and remand
appellant’s aggravated-robbery sentences because they were based on an improper
criminal-history score.
FACTS
Appellant Thomas Kendricks , III was charged with three counts of third -degree
criminal sexual conduct for sexually penetrating 14-year old “M” between December 2013
and January 2014 . He was also charged with first -degree aggravated robbery, second -
degree assault, and two firearms violations for a January 13, 2014 incident. And he was
charged with first -degree aggravated robbery, second -degree assault, two firearms
violations, and motor -vehicle theft for a January 14, 2014 incident. At the time of the
charged offenses, Kendricks was on supervised release for two aggravated -robbery
convictions.
Pursuant to a negotiated agreement, Kendricks pleaded guilty to th e most serious
charge in each case—one count of criminal sexual conduct and two counts of aggravated
robbery. In return, the state agreed to dismiss the other charges and recommend a total
sentence of 240 months . The sentencing transcript reflect s the parties’ confusion about
whether the offenses were subject to presumptive or permissive consecutive sentencing ,
and whether the presentenc e investigation report (PSI) and sentencing -guidelines
worksheet reflect the correct criminal-history score for consecutive sentencing.
The district court sentenced Kendricks to 124 months for third -degree criminal
sexual conduct, within the presumpt ive range based on his criminal -history score of six,

3
and imposed consecutive 58-month sentences for each of the aggravated-robbery
convictions, using a criminal -history score of one . The court also imposed a ten -year
conditional-release term for the criminal-sexual-conduct conviction.
Kendricks filed a timely postconviction petition seeking to redu ce his sentence or,
alternatively, to withdraw his guilty plea. Kendricks a rgued that he should have been
sentenced concurrently on the aggravated-robbery convictions, and that he was not advised
that he would be subject to conditional release with respect to the criminal-sexual-conduct
offense. The district court denied the petition. Kendricks appeals.
D E C I S I O N
The decision whether to grant postconviction relief is within the district court’s
discretion. State v. Nicks , 831 N.W.2d 493, 503 (Minn. 2013). But we review a court’s
postconviction findings of fact for clear error and its legal determinations de novo. Id.
This appeal requires interpretation of the Minnesota Sentencing Guidelines (2014), a legal
question that we review de novo. State v. Holmes, 719 N.W.2d 904, 907 (Minn. 2006).
I. Kendricks’s aggravated-robbery sentences are unlawful.

“Generally, when an offender is convicted of multiple current offenses, or when
there is a prior felony sentence that has not expired or been discharged, concurrent
sentencing is presumptive.” Minn. Sent. Guidelines 2.F. But consecutive sentencing is
presumptive if the offender was on supervised release when he committed the current
offense and the current offense would be a presumptive commitment to prison. Minn. Sent.
Guidelines 2.F.1.a. Even if an offender meets the criteria for presumptive consecutive

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sentencing, if “the total time to serve in prison would be longer if a concurrent sentence
were imposed, a concurrent sentence is presumptive.” Minn. Sent. Guidelines 2.F.1.c.
Kendricks was serving the supervised release portion of a 58-month sentence when
he committed the criminal -sexual-conduct offense. With a criminal-history score of six,
Kendricks’s presumptive sentence for this offense was 140 months executed. Minn. Sent.
Guidelines 4.B (Sex Offender Grid). Because the concurrent sentence based on
Kendricks’s criminal-history score is longer than the presumptive consecutive sentence,
the district court was required to sentence concurrently with his previous sentence.
Kendricks acknowledges that his 124-month sentence for criminal sexual conduct is in the
lower end of the guidelines range, and he does not challenge it.
Kendricks does contest his two aggravated -robbery sentences. The district court
interpreted the guidelines to require presumptive consecutive sentences. We disagree.
Where, as here, an offender is convicted of multiple current offenses, concurrent sentencing
is presumptive. Minn. Sent. Guidelines 2.F. The guidelines allow permissive consecutive
sentencing only when t he disposition for the current offense is commitment and one of
three other conditions exists: (1) the prior felony sentence is for a crime listed among the
offenses eligible for permissive consecutive sentencing in Minn. Sent. Guidelines 6; (2) the
offender is being sentenced for “multiple current felony convictions” included on the above
list; or (3) the offender is convicted of a new felony after escape. Minn. Sent. Guidelines
2.F.2.a.1. These requirements are met here; both third-degree criminal sexual conduct and
aggravated robbery are offenses eligible for permissive consecutive sentencing , and the
disposition for the aggravated-robbery offenses is commitment. See State v. Coleman, 731

5
N.W.2d 531, 538 (Minn. App. 2007) (affirming imposition of two consecutive sentences
when the offender’s multiple current offenses met the criteria for permissive consecutive
sentencing), review denied (Minn. Aug. 7, 2007). Accordingly, consecutive sentencing of
the aggravated-robbery convictions is permissive.
When a district court imposes permissive consecutive sentences under Minn. Sent.
Guidelines 2.F.2.a.1, it must use a criminal-history score of zero. Minn. Sent. Guidelines
cmt. 2.F.202. The district court based Kendricks’s 58-month aggravated-robbery sentences
on a criminal-history score of one. This was error. Using the proper criminal-history score,
the guidelines sentence is 48 months, within a range of 41 to 57 months. Minn. Sent.
Guidelines 4.A.
The state argues Kendricks’s robbery sentences are nonetheless lawful because, in
the aggregate, the 240 months imposed are within the 282 -month presumptive range. 1
While t he gui delines direct the Commissioner of Corrections to aggregate “separate
durations into a single fixed sentence ,” Minn. Sent. Guidelines cmt. 2.F.02, this assumes
that a defendant has been sentenced to i ndividually lawful sentences. A sentence is
unauthorized when it does not meet the requirements of the applicable sentencing statute.
State v. Amundson , 828 N.W.2d 747, 752 (Minn. App. 2013). Because Kendricks’s

1 With a criminal-history score of six, Kendricks’s presumptive sentence for third -degree
criminal sexual conduct is 119-168 months. Minn. Sent. Guidelines 4.B. The presumptive
sentence for aggravated robbery, using a zero criminal -history score as r equired for
permissive consecutive sentencing, is 41 -57 months. Minn. Sent. Guidelines 4.A. Using
the highest presumptive sentence for each conviction —168 months, 57 months, and 57
months—results in a 282-month sentence, which is still within the presumptive range.

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aggravated-robbery sentences do not comply with the sentencing guidelines , we reverse
and remand them to the district court for resentencing.
II. The postconviction court did not err by denying Kendricks’s request to
withdraw his guilty plea.

A defendant does not have an absolute right to withdraw a guilty plea. State v.
Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). After sentencing, a defendant must be allowed
to withdraw a guilty plea if “withdrawal is necessary to correct a manifest injustice.” Id.
at 94 (quotation omitted). A manifest injustice occurs if a plea is not valid; a plea is invalid
if it is not accurate, intelligent, or voluntary. Id.
Kendricks argues that his plea was not accurate 2 or intelligent because the court
imposed unlawful sentences and he was not informed of the conditional-release term. We
have already afforded Kendricks the appropriate remedy for an unlawful sentence —
remand to the district court for resentencing on the aggravated -robbery convictions. See
Amundson, 828 N.W.2d at 754 (remanding for resentencing when sentence imposed was
unauthorized by the sentencing guidelines). Thus, we turn to his contention that his plea
was not intelligent because he was unaware of the conditional-release term.
A guilty plea is intelligent if a defendant “unde rstands the charges against him, the
rights he is waiving, and the consequences of his plea.” Uselman v. State , 831 N.W.2d
690, 693 (Minn. App. 2013) (quoting Raleigh, 778 N.W.2d at 96) . In Uselman, we

2 “The accuracy requirement protects a defendant from pleading guilty to a more serious
offense than that for which he could be convicted if he insisted on his right to trial. To be
accurate, a plea must be established on a proper factual basis.” Raleigh, 778 N.W.2d at 94
(citation omitted). Kendricks has not set forth facts or argument that support an accuracy
challenge. Accordingly, we do not address this issue.

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concluded that the defendant’s plea was not intellig ent because he was not aware of and
did not agree to conditional release as part of his sentence. Although his sentencing
worksheet noted the conditional -release term, the portion of his plea petition that
referenced the conditional-release term was marked “N/A.” Id. at 692. At sentencing, the
district court imposed the conditional -release term but did not “highlight that this term of
sentence differed from Uselman’s plea petition.” Id. We concluded that Uselman’s plea
was not intelligent “[b]ecause the plea agreement rested on the state’s unfulfillable promise
that a postimprisonment conditional release period would not apply.” Id. at 693-94.
This court again addressed the issue of guilty -plea withdrawal premised on
imposition of a conditional-release term in Kubrom v. State, 863 N.W.2d 88 (Minn. App.
2015). Kubrom pleaded guilty to an impaired -driving offense that required five years of
conditional release. 863 N.W.2d at 91. Although the complaint referenced conditional
release as part of the sta tutory penalty, Kubrom was not otherwise informed of the
conditional-release term before or during sentencing. Id. at 90. Indeed, the first notice
occurred when the district court added the term just before Kubrom’s agreed -to 46-month
sentence was expiri ng. Id. at 94. We noted that a defendant’s plea is intelligent if he is
informed before sentencing in some manner (such as a plea petition, a PSI, or a hearing)
that imposition of a conditional-release term is possible. Id. at 93 (citing State v. Rhodes,
675 N.W.2d 323, 327 (Minn. 2004)). And we observed, “[W]hen a defendant’s negotiated
plea is induced by 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

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conditional release before sentencing.” Id. Because the record demonstrated that Kubrom
was not informed of the conditional -release term before sentencing and it conflicted with
his specific agreed-to sentence, we reversed. Id. at 94-95.
Unlike in Kubrom, the record amply supports the district court’s determination that
Kendricks was informed of the conditional -release term before sentence was imposed.
Kendricks’s plea petition included a statement that “for . . . most sex offenses, a mandatory
period of conditional release will follow any executed prison sentence that is imposed,”
although the number of years was not included. The PSI references the ten-year
conditional-release period. Kendricks advised the district court at sentencing that he had
reviewed the PSI with counsel. During the sentencing hearing, the district court told
Kendricks that “as noted, the 10 year conditional release applies to [the criminal sexual
conduct offense].” Kendricks did not object to this aspect of his sentence.
Kendricks’s reliance on James v. State , 699 N.W.2d 723, 726, 730 (Minn. 2005),
State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn. 2000), and State v. Garcia, 582 N.W.2d
879, 882 (Minn. 1998), is misplaced. Those cases involved defendants who learned about
the conditional-release term years after sentencing. Kendricks’s conditional-release term
was noted in the PSI, which he reviewed with his attorney ; the plea petition included a
reference to conditional release; and the district court imposed the conditional-release term
as part of the sentence. On this record, we discern no abuse of discretion by the district
court in denying Kendricks’s motion to withdraw his guilty plea.
Affirmed in part, reversed in part, and remanded.