State of Minnesota, Appellant,

This opinion will be unpublished and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
A18-0582

State of Minnesota,
Appellant,

vs.

Anne De Perry,
Respondent.

Filed December 3, 2018
Affirmed
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CR-16-29561

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

Michael O. Freeman, Hennepin Coun ty Attorney, Jonathan P. Schmi dt, Assistant
County Attorney, Minneapolis, Minnesota (for appellant)

Peter B. Wold, Aaron J. Morrison, Wold Morrison Law, Minneapoli s, Minnesota (for
respondent)

Considered and decided by Schellhas, Presiding Judge; Cleary, Chief Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant State of Minnesota challenges the district court’s d ecision to modify
respondent Anne De Perry’s stay of imposition of sentence by di scharging her from

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probation. On appeal, the state argues that the district court abused its discretion by
relying on a clearly erroneous finding, by entering a sentence that amounted to a stay of
adjudication, and by failing to allow De Perry the opportunity to withdraw her guilty
plea. We affirm.
FACTS
In November 2017, respondent Anne De Perry entered straight gui lty pleas to
three counts of theft-by-swindle in violation of Minn. Stat. § 609.52, subd. 2(a)(4)
(2014). The complaint alleged that, from December 2013 to September 2015, De Perry,
as the principal of the Whittier International Baccalaureate Sc hool in the Minneapolis
School District, made improper purchases with her school purcha se card totaling over
$11,000. The district court fo und that De Perry gave a knowing , intelligent, and
voluntary waiver of her rights and accepted her pleas.
On February 21, 2018, the district court entered a stay of imposition of sentence
and placed De Perry on probation for three years. As conditions of probation, the district
court ordered De Perry to serve four days in jail (with a one-day credit for time served),
perform 240 hours of community s ervice, pay restitution in the amount of $10,000,
provide a DNA sample to the Bure au of Criminal Apprehension, si gn waivers of
extradition, remain law-abiding, r efrain from the use or posses sion of firearms, and
refrain from employment with fiduciary responsibilities or capacities. On the day of her
sentencing, De Perry paid restitu tion in full and began to serv e her jail sentence. The

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district court also approved a travel permit for De Perry to apply to transfer her probation
in order for her to continue living out-of-state.
L e s s t h a n o n e m o n t h l a t e r , D e P e r r y m o v e d t o m o d i f y h e r s e n t e n ce because
Arizona had denied her applicati on to transfer her probation. At the hearing on
De Perry’s motion, the district court stated, “[W]e found out that we were provided with
a lot of misinformation that I b elieve [De Perry] relied on whe n she entered into her
pleas.” The district court further explained that it had revie wed the file, and
communicated with the Interstate Commission for Adult Offender Supervision and the
head of the Hennepin County Criminal Division. From this, the district court determined
that the sentence it had imposed had not allowed De Perry to qu alify for a probation
transfer to another state.
The district court also considered other conditions of responde nt’s probation in
its decision to discharge respondent from probation. The distr ict court considered that
respondent had been under supervision for 16 months without violation, paid restitution
in full, and served the imposed jail time. Additionally, the district court acknowledged
that respondent’s convi ctions would be reduced to misdemeanors a s a r e s u l t o f a
successful discharge from probati on. The district court furthe r explained that
respondent would continue to have licensing restraints formally through the Department
of Human Services, for 7 years instead of 15 years, and informa lly by virtue of theft
convictions on her criminal record. Consequently, the district court found De Perry’s
probation to be satisfactorily completed, discharged her from f urther obligations, and

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deemed her felony convictions to be misdemeanor convictions pursuant to Minn. Stat.
§ 609.13, subd. 1(2) (2014). The state appealed.
D E C I S I O N
The state argues that the district court abused its discretion in modifying
De Perry’s sentence to discharge her from probation earlier tha n the expiration of the
three-year term. First, the stat e asserts that the district co urt abused its discretion
because its finding that De Perry relied on “misinformation” in her guilty plea was
clearly erroneous. Next, the state argues that the district court’s discharge of De Perry’s
probation constituted an inappropr iate downward departure and a mounted to an
improper stay of adjudication. F inally, the stat e claims that the appropriate remedy
would have been for the district court to allow De Perry to wit hdraw her plea, rather
than discharge her from probation.
“We ‘afford the [district] cour t great discretion in the impos ition of sentences’
and reverse sentencing decisions only for an abuse of that discretion.” State v. Soto, 855
N.W.2d 303, 307-08 (Minn. 2014) (quoting State v. Spain, 590 N.W.2d 85, 88 (Minn.
1999)). “A district court abuses its discretion when its decision is based on an erroneous
view of the law or is against logic and the facts in the record .” State v. Guzman, 892
N.W.2d 801, 810 (Minn. 2017). O n appeal, we will not reevaluat e the district court’s
sentencing decision if the district court soundly exercised its discretion and imposed a
sentence that is authorized by law. State v. Stutelberg, 435 N.W.2d 632, 633-34 (Minn.
App. 1989).

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The Minnesota Sentencing Guidelin es provide presumptive sentenc es for
criminal offenders. Minn. Sent. Guidelines 1A (2016). Here, D e Perry pleaded guilty
to three counts of felony theft-by-swindle, and she had a crimi nal-history score of zero
for counts one and two and a score of one for count three. The guidelines provide that
the presumptive commitment durations for counts one and two, wi th severity levels of
two, are each one year and one day. Minn. Sent. Guidelines 4.A (2014). The
presumptive commitment duration fo r count three, with a severit y level of three, is
thirteen months. Id. The sentences for all counts are presumptively stayed. Id. In the
case of a presumptively stayed sentence, the district court, in its discretion, may order
up to one year of confinement and impose other non-jail sanctio ns as conditions of
probation. Id.
A district court may also stay the imposition of a sentence. Minn. Stat. § 609.135,
subd. 1 (2014). In the case of a stay of imposition of sentenc e, the person stands
convicted, but the district court does not actually pronounce a sentence. State v. Martin,
849 N.W.2d 99, 102 (Minn. App. 2014) (citing Minn. Sent. Guidel ines cmt. 2.C.05
(2016)). Pursuant to Minn. Stat. § 609.135, subd. 1(a)(1) and (2) (2014), a district court,
in staying imposition of sentence, “may order intermediate sanc tions without placing
the defendant on probation,” or “may place the defendant on probation with or without
supervision and on the terms the [district] court prescribes.” This language allows, but
does not mandate, a district court to impose a term of probatio n along with staying
imposition of sentence. See United States v. Johnson , 43 F.3d 1211, 1215 (8th Cir.

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1995) (citing State v. Dyer, 438 N.W.2d 716, 720 (Minn. App. 1989) (sentencing court
“may” order term of probation as condition for staying impositi on of sentence),
abrogated on other grounds by Richards v. Wisconsin, 520 U.S. 385, 393-94, 117 S. Ct.
1416, 1421-22 (1997)). Within its statutory authority to estab lish the conditions of
probation, the district court ma y order conditions as detailed in Minn. Stat. § 609.135,
subd. 1(b). Upon successful completion of probation, a felony conviction may be
deemed a misdemeanor. Minn. Stat. § 609.13, subd. 1(2).
In the instant case, the district court complied with the guid elines in sentencing
De Perry. According to the guidelines, De Perry’s sentence was presumptively stayed.
Given the language of Minn. Stat. § 609.135, subd. 1(a)(1) and (2), the district court was
allowed, but not required, to place De Perry on probation while ordering conditions of
probation along with respondent ’s stayed sentence. The distric t court imposed a
probationary period of three y ears. Further, the district cour t ordered conditions of
probation, requiring De Perry to serve four days in jail, perform 240 hours of community
service, pay restitution in the amount of $10,000, provide a DNA sample to the Bureau
of Criminal Apprehension, sign waivers of extradition, remain law-abiding, refrain from
the use or possession of firearms, and refrain from employment that includes fiduciary
responsibilities or capacities. Consequently, the district cou rt’s sentence was within
guidelines, and there was no downward departure.
The district court may “modify a sentence during a stay of exe cution or
imposition of sentence if the [di strict] court does not increas e the period of

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confinement.” Minn. R. Crim. P. 27.03, subd. 9. “A district c ourt has discretion to
discharge a defendant from probation at an earlier time” than the expiration of a stayed
sentence. State v. Sagataw, 892 N.W.2d 47, 51 (Minn. App. 2017) (citing Minn. Stat.
§ 609.135, subd. 2(f) (2016) (“Th e defendant shall be discharge d six months after the
term of the stay expires, unless the stay has been revoked or e xtended . . . or the
defendant has already been discharged.”)).
Here, the district court grante d De Perry’s motion to modify her sentence, found
her probation performance to be satisfactory, and discharged De Perry from probation
22 days after sentencing. In her motion, De Perry asked for the district court to eliminate
all uncompleted conditions of pr obation so that she would be ab le to live in Arizona
without having to transfer her probation. At the time of the m otion, respondent had
completed some of the conditions of her probation—she paid the entire amount of
restitution due, served the imposed jail time, submitted her DN A sample, and had
remained law-abiding. The district court’s discharge of respon dent’s probation
eliminated De Perry’s conditions t o refrain from employment inv olving fiduciary
responsibilities or capacities, pe rform community service, and refrain from the use or
possession of firearms. Although the state argues that the district court based its decision
on a finding that De Perry relied on misinformation in entering her guilty pleas, it
appears from our reading of the transcript that the district court was also referring to its
own reliance on information provided by a probation officer in initially crafting De
Perry’s sentence. Indeed, the district court at the modificati on hearing stated that it

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meant to allow De Perry “to plead guilty, be sentenced, and put herself in a position that
anyone else would have applying for Interstate Compact” in order to qualify to transfer
her probation.
The state further contends that the district court’s modificati on of De Perry’s
sentence amounted to an improper stay of adjudication. “A stay of adjudication . . . is a
procedure whereby the district court, upon a defendant’s guilty plea or a fact-finder’s
determination of guilt, does not adjudicate the defendant guilty but imposes conditions
of probation.” State v. C.P.H., 707 N.W.2d 699, 702 (Minn. App. 2006). If a district
court orders a stay of adjudication, and if the defendant succe ssfully completes
probation, “the defendant avoids a criminal conviction.” Id. at 703. In the instant case,
the district court’s modification of De Perry’s sentence operat ed to reduce her felony
convictions to misdemeanors, but De Perry did not avoid crimina l convictions. See
Minn. Stat. § 609.13, subd. 1(2). The district court’s modific ation did not amount to a
stay of adjudication.
Finally, the state argues that the appropriate remedy in this case would have been
for the district court to allow De Perry to withdraw her guilty plea. The state alleges
that De Perry’s reliance on the “misinformation” referenced by the district court renders
her guilty plea invalid. Withdrawal of a guilty plea is allowed when the request is timely
made and “withdrawal is necessary to correct a manifest injusti ce.” State v. Rhodes ,
675 N.W.2d 323, 326 (Minn. 2004) (citing Minn. R. Crim. P. 15.0 5 , s u b d . 1 ) . A
manifest injustice occurs when a court accepts an invalid guilt y plea. State v. Raleigh,

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778 N.W.2d 90, 94 (Minn. 2010 ). To be constitutionally valid, guilty pleas must be
accurate, voluntary, and intelligent. Id. De Perry has not asked to withdraw her plea,
and maintains that she was informed of the possibility that her application to transfer
her probation to another state could be denied. The state has not provided any authority
for its assertion that plea withdrawal is an appropriate remedy when De Perry has not
made a motion to withdraw her plea and where her plea was not b ased on a negotiated
plea agreement with the state. De Perry’s guilty plea is valid. Accordingly, the district
court did not abuse its discretion in modifying De Perry’s stay of imposition of sentence.
Affirmed.