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This opinion will be unpublished and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
A18-1514

State of Minnesota,
Respondent,

vs.

Kenneth Edward Dean,
Appellant.

Filed February 24, 2020
Affirmed
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CR-17-29962

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Rodenberg, Presiding Judge; Cleary, Chief Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this reinstated direct appeal from hi s conviction for failing to register as a
predatory offender, followi ng denial of his postcon viction petition seeking plea

2
withdrawal, appellant argues that his plea was not voluntary or intelligent because he was
not informed that his sentence could include a conditional-release term. We affirm.
FACTS
Ten years after being convicted of first-de gree criminal-sexual conduct, appellant
Kenneth Edward Dean was charged with viol ating his predatory-offender registration
requirements. The complaint alleged that appellant was a risk-level-III predatory offender.
The complaint stated that the maximum sentence was five years plus a conditional-release
term if appellant was a risk-level-III offender on the date of his registration offense.
Appellant appeared with counsel and plead ed guilty to the charge. He tendered a
plea petition to the court indicating that he was entering a “straight plea.” The petition
stated that the maximum penalty was five y ears in prison. Though the petition indicated
that “most sex offenses” require a “mandato ry period of conditional release,” the petition
stated that conditional release was not applicab le. The district court accepted appellant’s
plea and, that day, sentenced him to 24 m onths’ imprisonment, with execution of his
sentence stayed for th ree years. The sentence was a dispositional departure. The
sentencing order did not reference a conditional-release term, and conditional release was
not discussed at the combined plea and sentencing hearing.
Appellant directly appealed his convicti on, but later moved to stay the appeal
pending postconviction proceedings. We stayed the direct appeal, and appellant then filed
a postconviction petition seeking either plea withdrawal or assurances from the state that
it would not seek a conditional-release term in the future. Appellant argued that if he was
a risk-level-III offender at the time of his regist ration offense, and the state were able to

3
prove that to a jury, he would be subject to a ten-year conditional-release term. He asserted
that he was not informed of this potentiality prior to pleading guilty, and therefore his plea
was involuntary and unintelligent.
The state argued that appellant’s claim was not ripe. The state acknowledged that a
ten-year conditional-release te rm could not be im posed “on the record established,” and
stated that it was “highly unlikely” that it had “a legal basis” to modify appellant’s sentence
to include the term. The state indicated that it was “not seeking to do so at this time.”
The postconviction court summarily denied appellant’s petition. The court
concluded that appellant’s argument, that his plea was unintelligent, was “not ripe” because
it was too “far attenuated.” The court noted th at the state had made no attempt to elicit a
jury determination or waiver to establish appellant’s offender level at the time of his
registration offense. The court also noted th at if appellant completed his probation he
would never face incarceration or the possibility of conditional release. The court stated
that because appellant “did not actually face a consequence of conditional release” his
“guilty plea was intelligent.” Likewise, th e court concluded that appellant’s plea was
voluntary because, although his plea petition indicated that a conditional-release term was
inapplicable and the ma ximum penalty was five years, those statements were “correct.”
The court found that, therefore, appellant’s pl ea was not the result of “improper pressure
or coercion.”
On appellant’s motion, we dissolved the stay and reinstated this appeal.

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D E C I S I O N
“When a defendant initially files a direct appeal and then moves for a stay to pursue
postconviction relief, we review the postconvi ction court’s decisions using the same
standard that we apply on direct appeal.” State v. Beecroft, 813 N.W.2d 814, 836 (Minn.
2012). We review findings of fact for clear error and legal issues de novo. State v.
Maurstad, 733 N.W.2d 141, 146 (Minn. 2007); State v. Danh, 516 N.W.2d 539, 544 (Minn.
1994).
We review de novo 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 guilty
plea.” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007 ). After sentencing, a defendant
may withdraw a guilty plea only by establishing that “withdrawal is necessary to correct a
manifest injustice.” Id. (quoting Minn. R. Crim. P. 15.05, subd. 1). A manifest injustice
exists when a guilty plea is not valid. Id. A valid guilty plea “must be accurate, voluntary
and intelligent (i.e., knowingly and understandingly made).” State v. Ecker, 524 N.W.2d
712, 716 (Minn. 1994). “A defendant bears th e burden of showing his plea was invalid.”
Raleigh, 778 N.W.2d at 94.
We begin our analysis with an overview of the ten-ye ar conditional-release term
relevant to this appeal. In Minnesota, pred atory offenders are assigned a risk level upon
release from prison. See Minn. Stat. § 244.052 (2018). A district court must impose a ten-
year conditional-release term for any risk-level-III offender who commits a registration
offense. Minn. Stat. § 243.166, subd. 5a (2018); see also State v. Franson , 921 N.W.2d
783, 786 (Minn. App. 2018) (indicating th at if a risk-level-III offender commits a

5
registration offense, a ten-year cond itional-release term is mandatory), review denied
(Minn. Feb. 27, 2019). The conditional-rele ase term must be imposed when the court
commits the offender “to the custody of the commissioner of corrections.” Minn. Stat.
§ 243.166, subd. 5a. A district court may not impose the conditional-release term unless
the defendant admits that he was a risk-level-III offender at the time of the offense or a jury
makes that finding. State v. Her, 862 N.W.2d 692, 695-96 (Minn. 2015).
Appellant argues that he was not sufficiently informed of his sentencing exposure.
He contends that he is entitled to plea withdrawal because of “the real risk that the [s]tate
could ask to convene a senten cing jury to prove his risk level and add ten years of
conditional release if [his] probationary sentence was ever executed.” The state argues that
the district court properly denied the postc onviction petition because appellant’s claim is
not ripe for review.
To the degree appellant argues his plea will be invalidated by the imposition of a
conditional-release term, we agre e that appellant’s claim is not ripe. Justiciability is a
question of law, which we review de novo. Dean v. City of Winona , 868 N.W.2d 1, 4
(Minn. 2015). It is well settled that “there must be a substantial and real controversy
between the parties before a case will be considered” by an appellate court. State v. Brown,
12 N.W.2d 180, 181 (Minn. 1943).
In State v. Murphy , a defendant was sentenced to 96 months in prison and 450
months of probation, and as a condition of probation he was ordered to serve his probation
outside of Minnesota and Wiscon sin, or in the alternative, outside of a specified area
surrounding Minneapolis and St. Paul. 545 N.W.2d 909, 912 (Minn. 1996). He appealed

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the probationary condition, which the suprem e court refused to consider, deeming it
“speculative and not ripe for review.” Id. at 918. The supreme court stated that, in order
to establish a justiciable controversy, the defendant was required to show a “direct and
imminent injury which results from the alleged unconstitutiona l probationary provision.”
Id. at 917. The supreme court concluded that the defendant’s claim was too speculative
because, by statute, the defendant could be placed on out-of-state probation in only two
instances, and the existence of those instances would not be apparent until the defendant
was released from prison, which would not occur “for several years.” Id. at 918.
Like Murphy, appellant’s claim, as it relates to a hypothetical future harm, is not
ripe. We do not know whether appellant was a risk-level-III offender when he committed
his registration offense; whether appellant will violate probation and be committed to the
custody of the commissioner of corrections , necessitating imposition of a conditional-
release term; or whether the state will seek to prove that appellant was a risk-level-III
offender. Appellant does not face a direct and imminent injury, and his claim is not
justiciable.1 This is not a case of when, it is a case of “if.” Cf. State ex. rel. Ford v. Schnell,
933 N.W.2d 393, 403 (Minn. 2019) (concludi ng that issue was justiciable because

1 Appellant argues that if he is forced to wait until a ten-y ear conditional-release term is
imposed, he may be unable to seek a reme dy because postconviction relief may be time
barred. We disagree. When a direct appeal is filed, as is the case here, a petition for
postconviction relief must be filed within two years of “an appellate court’s disposition of
petitioner’s direct appeal.” Minn. Stat. § 590.01, subd. 4(a) (2018). Appellant was given
a stayed three-year sentence on June 18, 2018. We will know if appellant has successfully
completed his probationary sentence by June 18, 2021, which is within two years of our
disposition of this appeal.

7
defendant’s return to prison was “imminent and almost inevitable,” even though it had not
yet occurred).
To the degree that appellant argues that his plea was invalid when entered because
he was not told of the potential for a conditiona l-release term, appellant’s claim is ripe.
Such a claim presents a tangible controversy and injury. See Murphy, 545 N.W.2d at 917
(discussing ripeness). But any failure to inform appellant of the potential for a conditional-
release term does not render his plea involuntary or unintelligent.
“The intelligence requiremen t ensures that a defendant understands the charges
against him, the rights he is waiving, and the consequences of his plea.” Raleigh, 778
N.W.2d at 96. Consequences are “a plea’s direct consequences, namely the maximum
sentence and fine.” Id. “The voluntariness requirement ensures a defendant is not pleading
guilty due to improper pr essure or coercion.” Id. “To determine whether a plea is
voluntary, the court examines what the parties reasonably understood to be the terms of the
plea agreement.” Id.
Regarding the intelligence of the plea, a defendant need not be advised of every
consequence of a plea, and need only be advised of “direct consequences.” Kaiser v. State,
641 N.W.2d 900, 903-04 (Minn. 2002). Direct consequences are those that have “a
definite, immediate and automatic effect on the range of a defendant’s punishment.” Id. at
904 n.6. A conditional-release term is generally a direct consequence of a plea “because it
affects the maximum amount of prison time a defendant may serve.” Kobrom v. State, 863
N.W.2d 88, 92 (Minn. App. 2015). Here, a conditional-release term is not a direct
consequence because there is no certainty that a term is a pplicable. Appellant does not

8
claim, and the state has not proved, that he was a risk-level-III offender at the time of his
registration offense. See Her, 862 N.W.2d at 695-96.
Regarding voluntariness, we agree with th e district court that appellant was not
improperly pressured or coerced to enter his plea. Appellant’s plea petition indicated that
a term of conditional release was not applicable, and indeed no term is applicable because
appellant does not admit that he was a risk -level-III predatory offender at the time of his
registration offense, and the state has not proven that fact. See id.
Appellant’s claim that his plea will be rendered invalid by the imposition of a
conditional-release term is not ripe for review , and the district court therefore did not err
by summarily denying such a claim. See State v. Lindsey , 632 N.W.2d 652, 665 (Minn.
2001) (affirming summary denial of postco nviction ineffective-a ssistance-of-counsel
claim because the claim was not ripe). Appe llant’s claim that his plea was invalid when
entered is ripe. But any failure to inform appellant of the potential for a conditional-release
term did not invalidate his plea.
Affirmed.