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This opinion will be unpublished and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
A18-0701

State of Minnesota,
Respondent,

vs.

Leon Travis Franklin,
Appellant.

Filed April 15, 2019
Reversed and remanded
Slieter, Judge

Dakota County District Court
File No. 19HA-CR-17-4831

Keith Ellison, Attorney General, St. Paul, Minnesota; and

James C. Backstrom, Dakota County Attorney, Jackie Warner, Assistant County Attorney,
Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Gina D. Schulz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, Kelly S. Kemp, Assistant Attorney Genera l, St. Paul,
Minnesota (for amicus curiae Commissioner of Minnesota Department of Corrections)

Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and
Slieter, Judge.

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U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant challenges the 43-month sentence imposed following his guilty plea that
denied him a supervised -release term. Appellant argues that this court should remand to
the district court requiring specific performance of the negotiated plea agreement to include
a supervised-release term. Because a supervised-release term is a mandatory condition of
appellant’s sentence, the sentence imposed is illegal. We reverse and remand for further
proceedings.
FACTS
On December 11, 2017, the state charged appellant Leon Travis Franklin with one
count of stalking (pattern of stalking conduct) in violation of Minn. Stat. § 609.749, subd.
5(a) (2016), one count of stalking (repeatedly making phone calls/texts with two or more
prior domestic-violence related convictions within ten years) in violation of Minn. Stat.
§ 609.749, subd. 4(b) (2016), two counts of threats of violence ( intent to terrorize) in
violation of Minn. Stat. § 609.713, subd. 1 (2016), and three counts of violation of an order
for protection (two or more prior convictions) in violation of Minn. Stat. § 518B.01, subd.
14(a) (2016).
On January 8, 2018, the state filed a notice of intent to seek an aggravated sentence
pursuant to Minn. Stat. § 609.1095, subds. 2, 3 (2016). Relevant for this decision, the
notice identified the state’s intent to seek “a mandatory sentence under the Minnesota
Sentencing Guidelines pursuant to Minn. Stat. § 609.1095, subd. 3.” The state’s notice
specifically identified the portion of section 609.1095, subd ivision 3, which purports to

3
deny appellant’s eligibility for “probation, parole, work release, or discharge until he has
served the full term of imprisonment.”
A plea petition, completed prior to the February 2, 2018 plea hearing, explained that
appellant understood the charges in the complaint. Appellant’s plea petition stated, in part:
20. I have been told by my attorney and understand:
a. That my attorney discussed this case with one of the
prosecuting attorneys and that my attorney and the
prosecuting attorney agreed that if I entered a plea of
guilty, the prosecutor will do the following: . . .

43 months executed ct 1 cr 125
29 ct 4 cr 119
29 ct 5 cr 981
The plea petition did not reference Minn. Stat. § 609.1095, subd. 3, or a supervised-release
waiver.
Counsel summarized the negotiated plea-agreement terms to the district court prior
to offering of the plea. Appellant’s trial counsel explained the terms as follows.
Your Honor, we have a negotiated plea agreement. My client
is agreeing to plead guilty to Counts 1, 4 and 5. Count 1 is
Felony Stalking, Count 4 is Threats of Violence Felony, and
Count 5 is Felony Violation of Order for Protection. The
agreement calls for executed sentences pursuant to the
Minnesota Sentencing Guidelines. Count 1 is 43 months.2 He
has credit for 125 days, and I would—with respect to Count 1,
we’re pleading guilty to an amendment with respect to the
offense dates. That’s a time period ranging I think from

1 Based upon the representations in the record, we construe the references to “ct” to mean
“count” and “cr” to mean “jail credit.”

2 The record includes a sentencing worksheet that appears to show appellant’s lower-range
sentence for count 1 to be 44 months rather than 43 months as the presumptive commit to
the commissioner of corrections.

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October 1 of 2017 to November 10 of 2017. The [s]tate has
prepared a Notice of Motion, Motion to Amend Complaint.
With respect to Count 4, the agreement is for 29 months
executed, credit 119 days.
With respect to Count 5, the agreement is 29 months
executed with credit for 98 days. Those three counts will run
concurrent with each other and with the sentence he’s currently
serving. The agreement is that this will be s entenced under
Minnesota Statute 609.1095, subdivision 3, as a third crime of
violence, which essentially forfeits the early release parole or
supervised release, so he will not get the benefit of a one-third
if he has good behavior in the correctional facility.
The district court inquired: “So the 43 months is 43 months?” Appellant’s trial counsel
responded: “Correct.”
Appellant entered his guilty pleas to the relevant offenses identified in the
negotiated plea agreement. Appellant’s trial counsel reviewed the plea petition with
appellant on the record. Appellant acknowledged, taking into account 125 days credit, that
he would be serving 39 actual months under the terms of the plea agreement. Appellant
agreed, upon examination by state’s counsel, that he had the requisite qualifying
convictions for Minn. Stat. § 609.1095, subd. 3, to be applicable.
The district court accepted appellant’s guilty pleas and adjudicated appellant guilty
of the three charges. The district court imposed the sentence in accordance with the plea
agreement. The district court remanded appellant to the commissioner of corrections on
count 1 for 43 months with 125 days credit, count 4 for 29 months with credit for 129 days,
and count 5 for 29 months with 98 days credit. The dis trict court sentenced appellant
concurrently on the three counts. The district court recognized appellant’s criminal record
supported application of Minn. Stat. § 609.1095, subd. 3(a) , to counts 1 and 4 due to

5
appellant’s admissions to two prior violent crimes3 and that counts 1 and 4 qualify as crimes
of violence.4
The district court filed its sentencing order on February 2, 2018. The sentencing
order included the following language for counts 1 and 4: “This sentence consists of a
minimum term of imprisonment equal to two -thirds of the total executed sentence, and a
maximum supervised release term equal to one-third of the total executed sentence, unless
the sentence is life or life without the possibility of release. ”5 The district court issued a
second sentencing order on February 7, 2018. 6 The second sentencing order removed the

3 Appellant acknowledged two prior convictions at the plea hearing. Specifically, appellant
admitted convictions for: (1) felony stalking in violation of Minn. Stat. § 609.749 (2010),
and (2) burglary in the first degree in violation of Minn. Stat. § 609.582, subd. 1 (2012).
These convictions constitute a sufficient criminal history to implicate Minn. Stat.
§ 609.1095, subd. 3.

4 The district court used the term “crime of violence” in its pronouncement. “Crime of
violence” is a term utilized in section 609.713, subdivision 1, borrowing the same meaning
as section 609.1095, subdivision 1(d), for “violent crime.”

Count 4 of the complaint charged appellant with a violatio n of Minn. Stat. § 609.713
(2016), which requires a threat to commit a crime of violence. However, count 4 is not an
enumerated offense to qualify as a “violent crime” for sentencing under section 609.1095,
subdivision 3. The parties did not address coun t 4 on appeal but, because this matter is
being reversed and remanded, the district court will have the opportunity to correct the
sentence related to count 4.

5 We presume this language to be pre-loaded language in the MNCIS generated sentencing
order form. See Minn. R. Crim. P. 27.03, subd. 7 (“W hen the court pronounces sentence
for any counts for which the offense level before sentencing was a felony or gross
misdemeanor, the court must record the sentence using an order generated from the court’s
case management system.”).

6 Though the record does not specifically so identify, we presume the district court issued
this amended sentencing order sua sponte.

6
language identified above for counts 1 and 4, and it added: “PER AGREEMENT NO
GOOD TIME ON THIS COUNT” for count 1 and “PER AGREEMENT NO GOOD TIME
[ON] THIS COUNT” for count 4.
On March 8, 2018, the state filed a motion with the district court seeking to correct
the sentence or, in the alternative, vacate the plea and sentence. The motion provided:
The [d]epartment of [c]orrections has indicated it will not
enforce this [c]ourt’s [o]rder that states in relevant part “PER
AGREEMENT NO GOOD TIME ON THIS COUNT ”. They
cite to State v. Leathers , 799 N.W.2d 606 (Minn. 2011), in
support of their position. Given the [d]epartment of
[c]orrection’s refusal to enforce this [c]ourt’s [o]rder, the
[s]tate is requesting a hearing to address how best to proceed.
The district court held a hearing on April 20, 2018. The state requested to submit a
proposed order for the district court’s consideration explaining the procedural history of
the case to clarify that “this was an agreement entered into by the parties, what was
contemplated as part of the agreement, and hopefully that would clarify for the
[d]epartment of [c]orrections what [the parties’] intent was.” Appellant’s trial counsel did
not object to this procedure.
Appellant, through counsel, informed the district court that he agreed with the
department of corrections that, despite the plea agreement, he is eligible for supervised
release following service of two-thirds of the term. The district court noted the procedural
posture of the proceedings and that the request for this hearing was not to “change or
modify anything” but, instead, was to clarify the record for the department of corrections.

7
The district court inquired if appellant intended to withdraw his plea. Appellant
explained that he understood he would serve two -thirds of the 43 -month sentence and he
did not wish to withdraw the guilty plea. The district court clarified:
And I’ll just be clear, [ appellant], the record is the record. So
you remember when we were here, you were sworn under oath,
[your attorney] asked you questions and everything was taken
down. So I’m not going to argue with you as to what you said
or not said, but for the record; that is the record we’re dealing
with. They’re going to issue an order that is going to be
consistent with that record. [Your attorney] is going to review
that order and then it’s going to be submitted for the [c]ourt’s
review, and then that order will be issued. You’ll get a copy of
that and deal with any issues. And certainly then you can
contact [your attorney] in regard to that.
On April 27, 2018, the district court issued its order finding the plea agreement
reached betw een the parties contemplated appellant would serve the entire 43 -month
imprisonment term without parole or supervised release. The district court, however,
recognized the Minnesota Supreme Court in Leathers defined “full term of imprisonment”
as two-thirds of an inmate’s executed sentence, but relied upon the parties’ agreement and
in ordering appellant to serve the entire 43 months in the custody of the commissioner of
corrections.
D E C I S I O N
Appellant argues that, despite the provisions of section 609.1095, subdivision 3(a),
he is entitled to a term of supervised release following the completion of two -thirds of his
executed prison sentence. Minn. Stat. § 244.101, subd. 1 (2016) (recognizing an executed
felony sentence consists of (1) a two-thirds minimum term of imprisonment, and (2) a one-
third supervised -release term). Appellant relies on Leathers in which the Minnesota

8
Supreme Court examined almost identical language in Minn. Stat. § 609. 221, subd. 2(b)
(2010).7 Leathers, 799 N.W.2d at 605. The state acknowledges Leathers as “binding
precedent upon this [c]ourt” but argues this court “need not reach the statutory
interpretation as this case rests on a plea agreement reached between the p arties.” We
disagree with the state’s assertion that this matter can be resolved based on the negotiated
plea-agreement language because, as explained below, the plea agreement results in an
illegal sentence which this court cannot enforce.8
I.
Whether Minn. Stat. § 609.1095, subd. 3, forecloses an offender from a supervised-
release term provided under Minn. Stat. § 244.05, subd. 1 (2016), is a question of statutory
interpretation, which we review de novo. State v. Riggs , 865 N.W.2d 679, 682 (Minn.
2015). “The object of all interpretation and construction of laws is to ascertain and
effectuate the intention of the legislature. ” Minn. Stat. § 645.16 (2018). If the statute is
plain and unambiguous, we look at the plain meaning of the statutory language. State v.
Wukawitz, 662 N.W.2d 517, 525 (Minn. 2003). If the statute’s language is ambiguous, the
courts “may consider the canons of statutory construction to ascertain its meaning.” State
v. Struzyk, 869 N.W.2d 280, 285 (Minn. 2015).

7 The one difference in the language reviewed in Leathers and section 609.1095,
subdivision 3(a), is that section 609.1095, subdivision 3(a), does not include the term
“supervised release.” This difference is, we believe, insignificant to our analysis.

8 The Minnesota Department of Corrections filed an amicus curiae seeking clarification
regarding administration of appellant’s sentence. This court’s opinion is intended to clarify
administration of the sentence.

9
The statute at issue here imposes a mandatory sentence for dangerous offenders who
commit a third violent felony. The statute provides a specific definition of a “violent
crime” listing applicable statutes. Minn. Stat. § 609.1095, subd. 1(d) (2016). Section
609.1095, subdivision 3(a) provides: “Any person convicted and sentenced as required by
this subdivision is not eligible for probation, parole, discharge, or work release, until that
person has served the full term of imprisonment imposed by the court, notwithstanding
sections 241.26, 242.19, 243.05, 244.04, 609.12, and 609.135.” Id. (emphasis added).
In Leathers, the Minnesota Supreme Court interpreted the statutory phrase “full
term of imprisonment” in Minn. Stat. § 609.221, subd. 2(b). Leathers, 799 N.W.2d at 608
(quotation omitted). The provision of section 609.221, subdivision 2(b), provides:
A defendant convicted and sentenced as required by this
paragraph is not eligible for probation, parole, discharge, work
release, or supervised release, until that person h as served the
full term of imprisonment as provided by law, notwithstanding
the provisions of sections 241.26, 242.19, 243.05, 244.04,
609.12, and 609.135. Notwithstanding section 609.135, the
court may not stay the imposition or execution of this sentence.
Id. (emphasis added) (quotation omitted).
The supreme court noted that the phrase “full term of imprisonment” was not
defined in Minn. Stat. § 609.221 nor under chapter 609. Id. at 609. The supreme court
held the term “full term of imprisonment” was susceptible to different reasonable
interpretations. Id. at 609 -10. Therefore, after applying two canons of statutory

10
construction—the doctrine of in pari materia9 and the rule of lenity 10—the supreme court
concluded:
[T]he phrase “full term of imprisonment ” in Minn. Stat.
§ 609.221, subd. 2(b), means two -thirds of a defendant’s
executed prison sentence. Thus, Leathers is ineligible for work
release or supervised release until he has served a full two -
thirds of his sentence, after which point he may be eligible for
supervised release subject to the completion of any disciplinary
confinement period and other requirements for supervised
release.
Id. at 611.
Although Leathers involved section 609.221, subdivision 2(b), the supreme court’s
analysis controls this court’s interpretation of the same phrase in section 609.1095
subdivision 3(a).11 “Full term of imprisonment ,” as described in Minn. Stat. § 609.1095,
subd. 3(a) , means an offender sentenced under this pro vision is eligible for probation,

9 “‘The doctrine of in pari materia is a tool of statutory interpretation that allows two
statutes with common purposes and subject matter to be construed together to determine
the meaning of ambiguous statutory language.’” Leathers, 799 N.W.2d at 611 (quoting
State v. Lucas, 589 N.W.2d 91, 94 (Minn. 1999)).

10 “‘[W]hen the language of a criminal law is ambiguous, we construe it narrowly according
to the rule of lenity.’” Leathers, 799 N.W.2d at 611 (quoting State v. Maurstad , 733
N.W.2d 141, 148 (Minn. 2007)). “In keeping with that principle, we also ‘strictly construe
minimum term statutes against the [s]tate.’” Id. (quoting State v. Lubitz, 472 N.W.2d 131,
133 (Minn. 1991)).

11 The Minnesota Supreme Court provided a distinction to applying Leathers in the context
of mandatory life sentences under Minn. Stat. § 609.3455 (2016). Rushton v. State , 889
N.W.2d 561 (Minn. 2017). In Rushton, the supreme court identified an exception for cases
related to the “minimum term of imprisonment” for application of Minn. Stat. § 609.3455,
subd. 5. Id. at 563, 567. But, the supreme court indicated in most cases the minimum term
of imprisonment would be a period equal to two -thirds of the inmate’s executed sentence.
Id. at 567.

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parole, discharge, or work release when that person has served a full two -thirds of their
sentence imposed by the district court. Therefore, appellant’s sentence, which precludes a
supervised-release term, is an illegal sentence.
II.
Having resolved the statutory ambiguity of Minn. Stat. § 609.1095, subd. 3(a), we
turn next to the effect this resolution has upon the parties’ plea agreement and the resulting
sentencing order. Determining what the parties agreed to in a ple a bargain is a factual
inquiry, but the interpretation and enforcement of negotiated plea agreements presents
issues of law subject to de novo review. State v. Rhodes , 675 N.W.2d 323, 326 (Minn.
2004). “In Minnesota[,] plea agreements have been analogized to contracts and principles
of contract law are applied to determine their terms.” In re Ashman, 608 N.W.2d 853, 858
(Minn. 2000). When courts address whether the terms of a plea agreement were violated,
“courts look to ‘what the parties to [the] plea bargain reasonably understood to be the terms
of the agreement. ’” State v. Brown , 606 N.W.2d 670 , 674 (Minn. 2000) (alternation in
original) (quoting United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985)).
The di strict court found the negotiated plea agreement “contemplated that
[appellant] would not be paroled or placed on supervised release after serving two-thirds
of his sentence. Rather [appellant] agreed to serve the entire 43 months.” These findings
are supported by the record of appellant’s plea hearing. Appellant acknowledged he would
remain in custody for 39 months, after considering his jail credit.
Although the factual record supports appellant knowingly entering into the
negotiated plea agreement wit h the understanding he would not receive a supervised -

12
release term, th at term cannot be enforced . As discussed previous ly and pursuant to
Leathers and section 609.1095, subdivision 3, appellant is entitled to a supervised-release
term upon completion of two -thirds of his sentence. Therefore, this court cannot order
specific performance of the plea agreement.
“‘The essence of plea agreements . . . is that they represent a bargained -for
understanding between the government and crimina l defen dants in which each side
foregoes certain rights and assumes certain risks in exchange for a degree of certainty as to
the outcome of criminal matters. ’” State v. Meredyk, 754 N.W.2d 596, 603 (Minn. App.
2008) (quoting United States v. Porter , 405 F.3d 11 36, 1145 (10th Cir. 2005)). An
unqualified promise contained in a plea agreement must be honored. Id.
“Plea agreements involving multiple crimes are often ‘intricate’ and require a
delicate balancing of competing considerations.” State v. Montermini , 819 N.W.2d 447,
455 (Minn. App. 2012) (citing State v. Misquadace , 629 N.W.2d 487, 491 (Minn. App.
2001), aff’d, 644 N.W.2d 65 (Minn. 2002)). When non-ancillary conditions of a negotiated
plea agreement are modified, the effect of those changes may impact the entire plea
agreement. Id.; see also Meredyk , 754 N.W.2d at 603 -04 (recognizing the district court
erred by modifying a restitution obligation that “drastically altered” the parties’ agreement
by materially changing the expectations of the bargain).
The parties’ plea agreement in this case included the dismiss al of charges and
enhanced sentencing options in exchange for appellant to receive a defined in -custody
period. The state dismissed four charges and withdrew its motion for an aggravated
sentence pursuant to Minn. Stat. § 609.1095, subd. 2. Appellant agreed to a 43 -month

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sentence without a supervised -release term. Functionally, the guilty plea relied on a
promise that could not be fulfilled—by removing the mandatory supervised-release term—
resulting in an illegal sentence. See Dikken v. State, 896 N.W.2d 873, 877 (Minn. 2017)
(“But the [s]tate also cannot induce a guilty plea based on a promise by the prosecutor that
goes unfulfilled or was unfulfillable from the start, such as a plea agreement involving the
promise of an illegal sentence.”).
The typical remedies in this context are plea withdrawal, specific performance, or
altering of the sentence, if appropriate. James v. State , 699 N.W.2d 723, 728 -29 (Minn.
2005). Specific performance is no longer an available remedy in this case because it would
mean imposition of an illegal sentence . Id. at 729. Accordingly, the district court, as the
appropriate forum to resolve these issues, shall address the affect this decision has on the
parties’ overall plea agreement. That is, the district court will have to consider whether to
allow a plea withdrawal or to alter and re-impose the 43-month sentence to include the
usual supervised release language. See id., 699 N.W.2d at 728-29 (holding a defendant is
entitled to plea withdrawal or modification of the plea) ; State v. Lewis, 656 N.W.2d 525,
538 (Minn. 2003) (permitting the district court to consider plea agreement on remand to
allow for a motion to withdraw) ; Montermini, 819 N.W.2d at 455 (allowing the district
court to vacate pleas and convictions to permit the state to proceed anew).12

12 Appellant also argues, pro se, that the state: (1) improperly discussed the career-offender
statute at the time of his plea; (2) did not allow him to be present at proceedings after
February 1, 2018; (3) violated Minn. R. Crim. P. 5.01 by appointing counsel after the public
defender’s office negotiated matters; and (4) failed to impanel a jury to permit an upward
departure. Appellant failed to provide appropriate legal support or analysis for these
arguments, and, therefore, we do not address them. Campbell v. State, 916 N.W.2d 502,

14
Appellant’s guilty plea resulted in an illegal sentence by purporting to exclude a
supervised-release term. We therefore reverse and the district court on remand shall have
the opportunity to address the impact this decision has on the parties’ previous plea
agreement and rule accordingly.
Reversed and remanded.

510 n.5 (Minn. 2018) (recognizing a claim of error resting on mere assertions without an
argument or authority is forfeited and not considered unless prejudicial error is obvious on
mere inspection).