State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0667

State of Minnesota,
Respondent,

vs.

Zhaokun Tong,
Appellant.

Filed December 17, 2018
Affirmed in part, reversed in part, and remanded
Jesson, Judge

Crow Wing County District Court
File No. 18-CR-16-786

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

Donald F. Ryan, Crow Wing County Attorney, Rockwell J. Wells, A ssistant County
Attorney, Brainerd, Minnesota (for respondent)

Lisa Lodin Peralta, Peralta Appellate Law PLLP, St. Louis Park, Minnesota (for appellant)

Considered and decided by Jess on, Presiding Judge; Reilly, Jud ge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Zhaokun Tong agreed to plead guilty to one count of p rostitution with a
minor. One of the terms listed i n his plea agreement was that he would have no travel
restrictions. When Tong petitioned the district court to remov e a requirement that he

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provide two weeks notice before traveling out-of-state for business, the district court agreed
to remove that requirement but, without consulting the parties, added several other travel
conditions. Tong appeals the imposition of these additional conditions and seeks correction
of a clerical error in the amount of his penalty assessment in the warrant of commitment.
Because the district court did no t increase Tong’s sentence or abuse its discretion by
imposing additional travel conditions, we affirm the travel con ditions that do not conflict
with the plea agreement. But we reverse those conditions that conflict with the plea
agreement and remand with instruction to correct the penalty as sessment amount in the
warrant of commitment.
FACTS
Appellant Zhaokun Tong is originally from China and has family members who still
reside there. Tong lives in the United States and owns his own company, which sells and
maintains restaurant equipment.
This case stems from Tong’s on line subscription to a website c alled “Seeking
Arrangements.” Through this webs ite, Tong met a person who tol d him that she was 18
years old, which he believed. Tong arranged to meet her and offered to pay her money to
engage in sexual contact with him.1 But despite Tong’s belief otherwise, the girl was only
14 years old. In connection with this encounter, the state cha rged Tong with four counts

1 Tong did pay the individual money and met her again about one month later and engaged
in sexual acts with her, but it appears that the charge to whic h he pleaded guilty only
involved the initial meeting.

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of violating the law, including third- and fourth-degree crimin al sexual conduct,
prostitution, and soliciting a child to engage in sexual conduct.
Through plea negotiations, Tong pleaded guilty to one count of prostitution. Tong
agreed to a stay of imposition of 45 days of jail time, provide d that he complete “John
School” within one year, and pay a fine plus a penalty assessment, in addition to probation
and other requirements relevant to his offense. During the ple a negotiations, Tong noted
that he had an upcoming trip to visit his family in China, and one part of the plea agreement
stated that there would be “no travel restrictions.”
When presented with the plea agreement, a district court judge found that Tong
entered the plea freely and voluntarily after consulting with h is attorney. Acceptance of
the plea was withheld until after a presentence investigation w as completed. A second
district court judge then adjudicated Tong guilty at the senten cing hearing and imposed a
sentence according to the terms of the plea agreement. The district court ordered Tong to
pay a $750 penalty assessment and ordered ten years of probation with the ability to petition
for discharge after four years. With respect to Tong’s ability to travel, the district court
stated that “[i]n terms of travel, I am going to honor the [plea] agreement. You are eligible
to go back to your home country for visits . . . but you are to set those up with your probation
officer so they know when you are going to be gone and when you are coming back, okay?”
Tong agreed.
But afterwards, when the probation department set up Tong’s probation agreement,
it included the requirement that he obtain permission two weeks in advance to leave the
state of Minnesota. Tong filed a motion to remove this two-wee k advance notice

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requirement for out-of-state business travel because the new tr avel restriction was
hindering his potential business growth. At a hearing on the m otion, Tong noted that
because he responds to customers when their equipment malfunctions, he was not able to
know two weeks in advance when he would need to leave the state. Further, Tong argued
that his original plea agreement contained the term “no travel restrictions.” The state
responded by noting that the pl ea agreement discussions about t ravel only pertained to
Tong’s ability to travel to China to visit his family, not out-of-state travel within the United
States. The state further cited concerns about Tong’s unlimited travel conflicting with the
Interstate Compact for Adult Offender Supervision’s requirements.
The district court removed the two-week notice requirement for Tong’s business
travel outside of Minnesota. But, after waiving that requireme nt, the district court sua
sponte imposed additional conditions on Tong’s out-of-state business travel. Tong appeals
those conditions.
D E C I S I O N
Tong raises two arguments that the district court erred by imposing additional travel
conditions not imposed by the original sentencing court. First, Tong argues that the district
court erred as a matter of law by imposing additional travel co nditions because the
additional travel conditions effectively increased his sentence. We review this question of
law—whether the travel restricti ons increased his sentence—de n ovo. State v. Dorn ,
887 N.W.2d 826, 830 (Minn. 2016). Second, Tong contends that the district court abused
its discretion by adding travel c onditions that conflicted with the terms of his plea
agreement, which stated that he would have no travel restrictio ns. We afford the district

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court significant discretion to impose sentences and only rever se sentencing decisions for
an abuse of discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). But while
issues of fact surrounding what the parties agreed to in a plea agreement are for the district
court to determine, interpretation and enforcement of a plea agreement are issues of law to
be reviewed de novo. State v. Brown, 606 N.W.2d 670, 674 (Minn. 2000).
I. The district court did not err as a matter of law by modifying Tong’s sentence
because the additional travel conditions did not increase his sentence.

Tong first argues that the district court erred as a matter of law by imposing
additional restrictions on his travel because it effectively in creased his sentence. After
removing the two-week notice re quirement for out-of-state busin ess travel, the district
court imposed the following travel conditions:
(a) Defendant shall inform his probation officer of where
Defendant will be traveling and the business purpose requiring
the travel as soon as Defendant is made aware of the need for
the travel.

(b) Defendant shall inform his probation officer of both the
departure date and return date of the business travel. Once the
business purpose for the travel outside of Minnesota is
complete, Defendant shall immediately return to Minnesota.

(c) Defendant shall inform his probation officer of where
Defendant is staying during th e duration of Defendant’s
business travel, and any changes that take place throughout the
travel.

(d) While out of Minnesota on business related travel,
Defendant shall return to where he is staying once his business
related activities are concluded for the day. Defendant shall
not have any visitors where he is staying unless for a business
related purpose within the scope of the travel.

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(e) Defendant shall keep in cont act with his probation officer
every day while traveling outside of Minnesota, whether it be
actual conversation or a voice message, to inform Defendant’s
probation officer of any change in travel plans or
accommodations and to update Defendant’s probation officer
on the status of the travel.

Tong points out that the district court accepted his plea agree ment including the term “no
travel restrictions” and sentenced him according to the plea agreement. Accordingly, Tong
contends that the two-week-no tice requirement in the probation agreement and the
subsequent conditions imposed by the district court constituted travel restrictions that
directly conflicted with his unambiguous plea agreement. Tong argues that because his
original sentence contained no travel restrictions, the later-imposed conditions constituted
an increase in his sentence that constituted error as a matter of law.
Minnesota Rules of Criminal Procedure 27.03, subdivision 9, all ows the court to
“modify a sentence during a stay of execution or imposition of sentence if the court does
not increase the period of confinement.” (Emphasis added.) Here, the district court’s order
imposing conditions on Tong’s out -of-state travel in no way inc reased Tong’s period of
confinement. The district court did not increase the amount of time Tong was sentenced
to serve or increase the length of his probation. Accordingly, the additional travel
conditions cannot be properly characterized as an increase in Tong’s sentence.
The cases cited by Tong are not to the contrary. Those cases p rimarily involve
sentence modifications that resulted in a longer prison sentenc e. See State v. Braun ,
487 N.W.2d 232 (Minn. 1992) (holding that a sentence could not be increased by switching
from concurrent to consecutive sentencing); State v. Montjoy , 354 N.W.2d 567 (Minn.

7
App. 1984) (holding that when the time frame for an appeal from a p r i s o n s e n t e n c e
authorized by law has expired, the district court cannot increa se the term of sentence).
Because all of these cases involved district court decisions th at resulted in an increased
length of confinement, they are not instructive here.
Because the imposition of conditions for Tong’s out-of-state travel did not increase
his sentence, the district court did not err as a matter of law.
II. Although it was within the di strict court’s discretion to i mpose additional
travel conditions, those conditions must adhere to Tong’s plea agreement.

Alternatively, Tong argues that the district court’s decision t o impose travel
restrictions as a probation condition constitutes an abuse of discretion because they conflict
with his plea agreement which c ontained the term “no travel res trictions.”2 An abuse of
discretion occurs when the district court’s 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).
In many ways, plea agreements are analogous to a contract between a defendant and
the state. State v. Meredyk , 754 N.W.2d 596, 603 (Minn. App. 2008). In essence, plea
agreements represent “a bargaine d-for understanding between the government and

2 The district court has broad di scretion to determine condition s of probation, so long as
the conditions are “reasonably related to the purposes of sente ncing” and not “unduly
restrictive of the probatione r’s liberty or autonomy.” State v. Friberg, 435 N.W.2d 509,
515 (Minn. 1989). Probation co nditions can include restriction s on employment, places
the probationer may go, and with whom he may associate. Id. at 515-16 (citation omitted).
Accordingly, the district court’s decision to impose the additional probation conditions that
are reasonably related to Tong’s sentence and do not unduly burden his liberty was not an
abuse of discretion.

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criminal defendants in which each side foregoes certain rights and assumes certain risks in
exchange for a degree of certainty as to the outcome of crimina l matters.” Id. (quoting
United States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005)). Similar to a contract , an
unqualified promise included in a plea agreement must be honored. Id. To determine if a
plea agreement was violated, courts look at what the parties “reasonably understood to be
the terms of the agreement.” Brown, 606 N.W.2d at 674 (quotation omitted). If a plea
agreement has been breached, courts may allow “withdrawal of th e plea, order specific
performance, or alter the sentence if appropriate.” Id.
The district court found that one of the conditions listed in T ong’s plea agreement
was that he would not be placed on any travel restrictions. Additionally, the district court
determined that the presentence investigation also stated that, a c c o r d i n g t o t h e p l e a
agreement, no travel restrictions were placed on Tong, and that the amended sentencing
order allowed Tong to leave the country to visit China. Although the state argues that the
only travel discussed during plea negotiations was Tong’s trave l to China, the plea
agreement listed “no travel restrictions” as part of the agreem ent. It is the district court’s
role to determine what the parties agreed to in a plea agreemen t, and here, it appears that
the district court determined that the parties agreed to “no travel restrictions.” See Brown,
606 N.W.2d at 674.
Therefore, we examine the additional travel conditions imposed by the district court
to see which, if any, are restrictions on Tong’s ability to travel. Some of the conditions in
the district court order—found in subdivisions a, c, and e, and portions of subdivisions b
and d—do not constitute travel restrictions. Conditions a, c, and e require Tong to inform

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his probation officer where he is traveling, where he is stayin g, and any changes that take
place, and to keep in contact with his probation officer every day while traveling outside
of Minnesota. None of these conditions impairs Tong’s ability to travel where he needs to
go; they simply require him to keep probation updated about his whereabouts and travel
plan and are more properly characterized as notice requirements. Similarly, a requirement
found in subdivision b that Tong must inform probation of the dates of his travel is a notice
requirement and not a travel restriction. Finally, a condition found in subdivision d forbids
Tong from having any visitors w here he is staying unless it is within the scope of his
business travel. This requirement does not constitute a travel restriction because it does
not prevent Tong seeing visitors in a different location and do es not impact his ability to
go where he needs or wishes to. Because these conditions are n ot travel restrictions, they
do not violate the plea agreement.
The district court’s removal of the two-week-notice requirement for Tong’s
business travel—but not all travel—is also consistent with the plea agreement. The district
court determined that the two-we ek-notice requirement hindered Tong’s ability to travel
last-minute for his job and therefore removed the notice requirement for the business travel.
But the court left the notice requirement for personal travel i n place. The notice
requirement for personal matters does not prevent Tong from traveling anywhere. It simply
requires that he give probation sufficient advance notice. Thi s is not a travel restriction
and thus is consistent with Tong’s plea agreement.
But two travel conditions, portions of subdivisions b and d, do constitute travel
restrictions. One condition, found in subdivision b, requires that Tong immediately return

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to Minnesota once the business pu rpose for his travel is comple te. Requiring Tong to
immediately return to Minnesota once he completes his business activities restricts his
ability to travel and accordingly violates the plea agreement. Similarly, another condition,
found in subdivision d, requires Tong to return to where he is staying after concluding his
business activities for the day. Again, this restricts Tong’s ability to travel because it does
not allow him to go where he wishes once he has reached his des tination.3 Because these
travel conditions amount to restri ctions on Tong’s ability to t ravel, they violate his plea
agreement.4
Accordingly, we affirm the travel conditions that do not confli ct with Tong’s plea
agreement, which are subdivisions a, c, and e in their entirety and the identified conditions
from subdivisions b and d. But we reverse the conditions that are travel restrictions that
violate the plea agreement, which are the requirements in subdi visions b and d that Tong
immediately return to Minnesota when the business purpose of hi s travel is complete and
that Tong must immediately return to his hotel room once his bu siness activities are
concluded for the day.

3 The state noted its concern about the term “no travel restrict ions” conflicting with
requirements outlined in the Interstate Compact for Adult Offen der Supervision. But the
Interstate Compact primarily deals with relocation, rather than temporary travel. See Minn.
Stat. § 243.1605 (2018). Even if Tong’s travel raised concerns under the Interstate
Compact, the notice requirements that remain in place allow probation to monitor Tong’s
whereabouts.
4 Tong also argues that the district court’s sua sponte decision to impose the additional
travel conditions deprived him of notice. But it is unclear how Tong was prejudiced by a
lack of notice. Tong brought the motion to modify his sentence and had a hearing at which
he argued that his understanding of the plea agreement was that it contained the term “no
travel restrictions.”

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III. The warrant of commitment contained a clerical error regar ding the amount
of Tong’s penalty assessment.

Both Tong and the state agree that the district court committed a clerical error in the
warrant of commitment regarding the amount of Tong’s penalty assessment. The warrant
of commitment lists the amount o f the assessment for the prosti tution charge as $1,000,
while the district court ordered Tong to pay $750.
Minnesota Rules of Criminal Pro cedure 27.03, subdivision 10, al lows clerical
mistakes to be corrected by the court at any time. Here, it is clear from the record that
Tong was ordered to pay a $750 penalty assessment and that the $1,000 amount listed was
erroneous. Accordingly, we remand with instructions to modify the warrant of
commitment to reflect that Tong was ordered to pay a $750 penal ty assessment for
prostitution.
Affirmed in part, reversed in part, and remanded.