A17-0435

This opinion will be unpublished and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
A17-0434
A17-0435

State of Minnesota,
Respondent,

vs.

Cody Robert Schrock,
Appellant.

Filed January 16, 2018
Affirmed in part, reversed in part, and remanded
Schellhas, Judge

Dakota County District Court
File Nos. 19HA-CR-16-1257, 19HA-CR-16-3205

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

James C. Backstrom, Dakota County Attorney, Chip Granger, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly , Presiding Judge; Schellhas, Judge; and
Stauber, Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant seeks withdrawal of his guilty plea to second-degree controlled-substance
possession and challenges his sentence for fifth-degree controlled-substance possession.
We affirm appellant’s convictions but reverse and remand to the district court for issuance
of a corrected warrant of commitment for the fifth-degree controlled-substance-possession
conviction.
FACTS
In July 2013, appellant Cody Schrock wa s convicted of fift h-degree controlled-
substance possession. In April 2016, police found Schrock incapacitated in a running motor
vehicle, along with a pipe, a baggie of methamphetamine, and a baggie of heroin on or near
Schrock’s person. In August 2016, police found a baggie of methamphetamine in
Schrock’s pocket after arresti ng him for shoplifting. In c onnection with the April and
August incidents, relevant to this appeal, respondent State of Minnesota charged Schrock
with second-degree controlled-substance possession and fifth-degree controlled-substance
possession.
Schrock pleaded guilty to both controlled-substance offenses, and the district court
adjudicated his guilt on both o ffenses. At that time, the cour t informed Schrock that he
could argue for a downward dispositional sentencing departure but cautioned him that the
court might sentence him to prison. Neither the district court, the prosecutor, nor Schrock’s
attorney mentioned on the re cord the 36-month mandatory minimum sentence applicable
to Schrock’s second-degree controlled-s ubstance-possession offense under Minn. Stat.

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§ 152.022, subd. 3(b) (2014), as a result of his July 2013 controlled-substance-possession
conviction.1
At sentencing, the prosecutor noted the applicability of a mandatory minimum 36-
month sentence to the second-degree contro lled-substance-possession offense due to
Schrock’s July 2013 fifth-degree controlled- substance-possession conviction, and sought
a guidelines sentence of 68 months’ impr isonment. Schrock argued for a downward
dispositional departure. The district court se ntenced Schrock on the record to 68 months
executed for his second-degree controlled- substance-possession offense and 15 months
executed concurrently for his fifth-degree controlled-substance-possession offense.

1 “Notwithstanding section 152.18, subdivis ion 1, a ‘subsequent controlled substance
conviction’ means that before commission of the offense for which the person is convicted
under this chapter, the person received a disposition for a felony-level offense under section
152.18, subdivision 1, [or] was convicted in Minnesota of a felony violation of this
chapter . . . .” Minn. Stat. § 152.01, subd. 16a (2014). Under the Drug Sentencing Reform
Act (DSRA), a ‘“subsequent controlled s ubstance conviction’ means that before
commission of the offense for which the person is convicted under this chapter, the person
was convicted of a violation of section 152.021 or 152.022 . . . provided that ten years have
not elapsed since discharge from sentence.” 2016 Minn. Laws ch. 160, § 1, at 576 (codified
at Minn. Stat. § 152.01, subd. 16a (2016) ). This amendment in the DSRA became
“effective August 1, 2016, and applies only to crimes committed on or after that date.” Id.
at 576 −77. The amendment does not apply to Schrock’s conviction of second-degree
controlled-substance possession because he committed the offense in April 2016. See State
v. Otto, 899 N.W.2d 501, 503 (Minn. 2017) (“[T]he plain language of DSRA §§ 3-4 forbids
application of the increased weight threshold to offenses committed prior to August 1,
2016.”). Schrock’s conviction of second- degree controlled-substance possession
constitutes a “subsequent controlled substance conviction,” Minn. Stat. § 152.01, subd. 16a
(2014), even though his July 2013 conviction of fift h-degree controlled-substance
possession is neither a conviction under sectio n 152.021 nor section 152.022, Minn. Stat.
§ 152.01, subd. 16a (2016). The mandatory minimum 36-month sentence therefore applies
under Minn. Stat. § 152.022, subd. 3(b).

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This appeal follows.2
D E C I S I O N
Validity of plea to second-degree controlled-substance possession
Schrock argues that his guilty plea to second-degree controlled-substance
possession is invalid and that he should be allowed to withdr aw it. He did not challenge
the validity of his guilty plea in district cour t, but he may do so in this direct appeal. See
Brown v. State, 449 N.W.2d 180, 182 (Minn. 1989) (“A defendant is free to simply appeal
directly from a judgment of conviction and cont end that the record made at the time the
plea was entered is inadequate” to establish the requirements of a valid guilty plea.).
Appellate courts apply a de novo standard of review to determine the validity of a
guilty plea. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). A defendant does not have
an absolute right to withdraw a valid guilt y plea after sentencing, unless the plea is
manifestly unjust. Id. at 93. “The intelligence requirement [of a valid guilty plea] ensures
that a defendant understands the charges agai nst him, the rights he is waiving, and the
consequences of his plea.” Id. at 96. But a defendant need not know every consequence of
his or her plea for the plea to be intelligent. Taylor v. State, 887 N.W.2d 821, 823 (Minn.
2016). The intelligence requirement refers to direct consequences of a plea, those
consequences that are “definite, immediate, and automatic and are punitive and a part of a

2 At oral argument, in consideration of Otto, Schrock withdrew his challenge to his second-
degree controlled-substance-possession conviction in which he sought a reduced offense
level under the DSRA.

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defendant’s sentence.” State v. Brown, 896 N.W.2d 557, 561 (Minn. App. 2017) (quotation
omitted), review denied (Minn. July 18, 2017).
Schrock argues that his guilty plea to second-degree controlled-substance
possession was not intelligent because, at the plea hearing: (1) although Schrock’s attorney
acknowledged that the district court had made “no promises” regarding Schrock’s
sentence, his attorney told the district court that Schrock would be arguing at sentencing
for a dispositional departure; (2) the district court told Schrock that he could seek a
downward dispositional departure; (3) Schrock’s plea petition did not include a minimum
sentence; and (4) contrary to Minn. R. Crim. P. 15.01, subd. 1(6)(j), 3 no one informed
Schrock, and he did not know, of the applicable mandatory minimum 36-month sentence.
The state argues that Schrock’s plea was intelligent because he was informed of the
maximum applicable sentence. We agree. Schrock’s plea petition included the maximum
penalties for the offense of second-degree controlled-substance possession. And before
Schrock entered his guilty plea, the district court informed him that the maximum penalties
for the offense were “25 years in prison” and a “maximum fine of one[-]half million
dollars.” Later in the hearing, the court repeated the maximum-penalty information, asked
Schrock whether he understood, and Schrock stated that he understood.
In State v. Trott , under circumstances similar to t hose in the case before us, the
defendant argued that his plea was not intelligent because, at the time of his plea, neither

3 Minn. R. Crim. P. 15.01, subd. 1(6)(j) gove rns guilty-plea procedures and requires that
the “judge . . . ensure defense counsel has told the defendant and the defendant understands
[that] [i]f a minimum sentence is required by statute, the judge may impose a sentence of
imprisonment of not less than [the minimum number of] months for the crime charged.”

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defense counsel nor the state was aware that a mandatory minimum sentence applied, no
mention of the mandatory mi nimum was placed on the reco rd, and Trott’s plea petition
contained no information about the mandatory minimum. 338 N.W.2d 248, 250−52 (Minn.
1983). And as in Schrock’s case, Trott’ s plea petition contained maximum-penalty
information, the district court informed Trott about the maximum penalties on the record,
and the court made no promises to Trott about his sentence. Id. at 250.
Before the sentencing hear ing, the prosecutor urged the court by memorandum to
sentence Trott to a downward dispositional departure. Id. But at the sentencing hearing, the
prosecutor explained that he had been mistaken both that the guidelines called for a stayed
sentence of 21 months and about the fact th at Trott’s offense required imposition of a
mandatory minimum one-year and one-day sentence. Id. Trott nevertheless asked for a
stayed sentence and treatment, i.e., a downward dispositional departure, and the prosecutor
then argued that if the court granted any depa rture, it should be an upward departure. Id.
The court imposed an executed 21-month sentence. Id. at 251.
Within two weeks of his sentencing, Tro tt moved to withdraw his plea, and the
district court conducted an evidentiary hear ing at which Trott and his defense counsel
testified. Id. Trott claimed that his counsel had pr omised him that he would receive a
probationary sentence. Id. His counsel admitted that he told Trott that probation was likely
but denied giving Trott any promises. Id. The supreme court rejected Trott’s argument that
his guilty plea was unintelligent, noting that Trott was aware of the mandatory minimum
sentence at his sentencing hearing and neither moved to continue the sentencing hearing or
to withdraw his plea for a mistake. Id. at 252.

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Here, as in Trott, Schrock learned of the mandatory minimum 36-month sentence at
his sentencing hearing and neither moved to continue his sentencing hearing nor to
withdraw his plea. Instead, he argued for a downward dispositional departure based on
various facts. The district court considered Schrock’s arguments but noted that it did not
find identifiable substantial and compelling re asons to support a downward dispositional
departure and therefore sent enced Schrock to an executed sentence of 68 months’
imprisonment. Schrock does not argue that his defense counsel promised him a
probationary sentence, and the re cord clearly reflects that the district court made no such
promises to him.
Because Schrock was aware at his plea hearing of the applicable maximum
penalties, we conclude that he was aware of the consequences of his plea and that his plea
therefore was intelligent and is valid. Nothing in the record persuades us that we must allow
Schrock to withdraw his plea in order to “c orrect a manifest injustice” under Minn. R.
Crim. P. 15.05, subd. 1. See Spann v. State , 368 N.W.2d 377, 379 (Minn. App. 1985)
(“Where a defendant is not promised a probationary sentence, he will not later be allowed
to withdraw a plea because he was sentenced according to the guidelines.”); see also Minn.
R. Crim. P. 15.01 cmt. (“[A] failure to incl ude all of the interrogation set forth in Rule
15.01 will not in and of itself invalidate a plea of guilty.”). We affirm Schrock’s conviction
of second-degree controlled-substance-possession conviction.
Warrant of commitment for fifth-degree controlled-substance possession
Schrock argues that the warrant of commitment for his fifth-degree controlled-
substance-possession conviction is erroneous because it states that his commitment is for

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68 months, instead of the 15-month sentence imposed by the district court at the sentencing
hearing. The state agrees, a nd the record of the sentenci ng hearing supports Schrock’s
argument. Schrock is entitled to a corrected warrant of commitment that accurately reflects
the district court’s orally pronounced sentence of 15 months’ concurrent imprisonment for
his fifth-degree controlled-su bstance-possession conviction. See State v. Staloch , 643
N.W.2d 329, 329 (Minn. App. 2002) (“When an orally pronounced sentence varies from a
written sentencing order, the orally pronounced sentence controls.”). We therefore reverse
the district court’s sentence for Schrock’s fifth-degree controlled-substance-possession
conviction and remand for correction of the wa rrant of commitment consistent with the
district court’s sentence pronounced at the sentencing hearing.
Affirmed in part, reversed in part, and remanded.