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This opinion will be unpublished and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
A18-1773

State of Minnesota,
Respondent,

vs.

Adam John Berge,
Appellant.

Filed July 15, 2019
Affirmed
Schellhas, Judge

Meeker County District Court
File No. 47-CR-12-173

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

Brandi Schiefelbein, Meeker County Attorney, Litchfield, Minnesota (for respondent)

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

Considered and decided by Jesson, Presiding Judge; Schellhas, Judge; and Tracy M.
Smith, Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges the validity of a global plea agreement and subsequent
probation revocation and argues that the district court unlawfully imposed a lifetime
conditional-release term in connection with his conviction of second -degree criminal

2
sexual conduct because he did not have a previous or prior sex -offense conviction. We
affirm.
FACTS
In October 2012, Berge entered an Alford plea to two counts of second -degree
criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (2010). Consistent with
the terms of the plea agreement, the district court stayed imposition of sentences, sentenced
Berge to serve an interim sentence in a local correctional facility, and placed him on
probation for 25 years.
On June 15, 2017, a probation officer filed a probation-violation report, alleging
that Berge violated the conditions of his probation by failing to report to his probation
agent, as directed, and failing to attend a sex-offender supervision group. Subsequently, a
probation officer filed another probation-violation report, alleging that Berge violated the
terms of his probation by failing to meet with his probation agent , as directed, and failing
to remain law -abiding. The second violation report alleged that Berge faced charges for
felony domestic assault and felony terroristi c threats, now known as threats of violence
(files 47-CR-17-7421 and 47-CR-17-782).
On August 7, 2018, Berge appeared with counsel before the district court to address
the alleged probation violations. At that time, he also faced additional charges for damage
to energy transmission equipment and theft of energy (file 47-CR-18-1226). Berge agreed
that he would plead guilty to felony damage to energy transmission equipment, and in

1 The record is unclear about any disposition of file 47-CR-17-742.

3
exchange for his guilty plea, the state would dismiss theft of energy in file 47-CR-18-1226,
along with felony threats of violence in file 47-CR-17-782, and would recommend a
19-month prison sentence. Berge also agreed that he would admit to violating his probation
on his conviction of second -degree criminal sexual conduct, and he and the state agreed
that they would jointly recommend to the court a presumptive, executed prison sentence of
70 months for a conviction of second -degree criminal sexual conduct and a concurrent,
executed prison sentence of 60 months for a separate conviction of second-degree criminal
sexual conduct. In accordance with the terms of the plea agreement, Berge then pleaded
guilty to felony damage to energy transmission equipment and admitted that he violated
the terms of his probation by absconding from supe rvision when he left the State of
Minnesota and went to the State of Washington.
As jointly recommended, the district court imposed concurrent prison sentence s of
70 months and 60 months on each of Berge’s convictions of second-degree criminal sexual
conduct, ten years of conditional release on Berge’s first second-degree criminal sexual
conduct conviction, and lifetime conditional release on Berge’s subsequent second-degree
criminal sexual conduct conviction. The court also imposed a 19-month prison sentence on
Berge’s conviction of damage to energy transmission equipment, to be served concurrently
with his sentences for second-degree criminal sexual conduct.
This appeal follows.2

2 Because the state did not file a responsive brief, this court ordered that this appeal would
proceed under Minn. R. Civ. App. P. 142.03.

4
D E C I S I O N
I.
The state has the burden of proving an alleged probation violation by clear and
convincing evidence. See Minn. R. Crim. P. 27.04, subd. 2(1)(c)b . When revoking
probation, the district court must: “ (1) designate the specific condition or conditions that
were violated; (2) find that the violation was intentional or inexcusable; and (3) find that
need for confinement outweighs the policies favoring probation.” State v. Austin , 295
N.W.2d 246, 250 (Minn. 1980) . District courts have broad discretion in determini ng
whether sufficient evidence supports revocation of probation, and this court will reverse
only if the district court abuses its discretion. State v. Modtland, 695 N.W.2d 602, 605
(Minn. 2005).
“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) . Plea agreements “represent a bargained -for understanding between the
government and criminal defendants in which each side foreg oes 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) (quotation omitted).
Where, as here, plea agreements involve multiple crimes, this court has recognized that
such agreements “are often intricate and require a delicate balancing of competing
considerations.” State v. Montermini, 819 N.W.2d 447, 455 (Minn. App. 2012) (quotation
omitted).

5
Berge argues that the record of the August 2018 hearing is unclear about whether
he and respondent State of Minnesota “ had a meeting of the minds and whether [he] fully
understood all of the rights that he was waiving or the likely outcome of his probation
violation hearing.” Specific ally, he contends that the record is unclear about whether he
intended to “giv[e] up his right to contest” one or both of his sentences for second-degree
criminal sexual conduct, whether he was “aware that conditional release would be included
in the executed sentence or sentences ,” and whether his awareness “would have changed
[his] decision to enter into the agreement.” Berge argues therefore that the probation-
revocation order regarding his second-degree criminal-sexual-conduct convictions should
be vaca ted and the matter remanded to the district court “for clarification.” Assuming,
without deciding, that Berge can challenge the validity of his August 2018 global plea
agreement in an appeal from a probation -revocation order, Berge’s argument on appeal
lacks merit.
After sentencing, withdrawal of a guilty plea is permitted if a defendant proves that
withdrawal is necessary to correct a manifest injustice. Minn. R. Crim. P. 15.05, subd. 1.
A manifest injustice occurs if a guilty plea is not valid. Dikken v. State, 896 N.W.2d 873,
876 (Minn. 2017 ). A valid guilty plea must be accurate, voluntary, and intelligent. Id.
Determining the validity of a guilty plea presents a question of law that is subject to de
novo review. State v. Raleigh , 778 N.W.2d 90, 94 (Mi nn. 2010). “The intelligence
requirement ensures that a defendant understands the charges against him, the rights he is
waiving, and the consequences of his plea.” Id. at 96. “Consequences” refers to a plea’s

6
direct consequences, such as the maximum sentence and fine. Alanis v. State, 583 N.W.2d
573, 578 (Minn. 1998).
Here, the transcript of the August 2018 probation-revocation hearing clearly reflects
Berge’s understanding that he was giving up his right to ch allenge imposition of both
sentences for second-degree criminal sexual conduct. The prosecutor stated on the record
that, as part of the agreement, Berge would agree to “a joint recommendation for a
presumptive commitment of seventy months.” The following colloquy then occurred:
THE COURT: As well as the . . . there’s a second count in that,
but that has a sixty month commitment. So, all right. Is that
your understanding, [defense counsel]?
DEFENSE COUNSEL: It is, Your Honor.
THE COURT: Mr. Berge, is this what you want to do today?
THE DEFENDANT: Yes, Your honor.

And the district court later asked Berge if he was “on probation for two . . . convictions of
criminal sexual conduct,” to which Berge answered, “That’s correct.” The record clearly
reflects Berge ’s understanding of the rights he was waiving under the global plea
agreement.
Berge also argues that his plea was unintelligent because “it is not clear whether, at
the time that [he] entered into the agreement, he understood that if any of the sentences
were imposed or executed that he would be subject to conditional relea se for his
convictions.” But a defendant who pleads guilty with assistance of counsel is presumed to
have been advised of his rights and the consequences of his plea. State ex rel . Rankin v.
Tahash, 149 N.W.2d 12, 15 (Minn. 1967).

7
Here, th e record reflects that Berge appeared with counsel at the probation
revocation hearing. Moreover, when the district court imposed a ten-year conditional-
release period to count one of second -degree cri minal sexual conduct and lifetime
conditional release to count two of second-degree criminal sexual conduct, neither Berge
nor his counsel objected or asked any questions about it. W e therefore can presume that
Berge was aware of the consequences of his global plea agreement in August 2018 . See
Stone v. State, 675 N.W.2d 631, 634 (Minn. App. 2004) (presuming that defendant “was
aware of the consequences of his plea and, therefore, his plea was intelligent” where
defendant was represented by counsel, imposed supervised-release period was discussed
multiple times at sentencing, defendant did not object when supervised-release period was
imposed, and defendant did not question court about it). Berge has not established that his
global plea was unintelligent, even if it is appropriately raised in an appeal from a probation
revocation. See State v. Fields , 416 N.W.2d 734, 73 6 (Minn. 1987) (concluding that
defendant properly raised sentencing issue at probation revocation hearing).
II.
Berge challenges the district court’s imposition of a lifetime conditional -release
period under Minn. Stat. § 609.3455 (2010). “Interpreting a sentencing statute is a question
of law, which we review de novo.” State v. Noggle, 881 N.W.2d 545, 547 (Minn. 2016).
Minnesota law p rovides that when a district court commits an offender to the
custody of the commissioner of corrections for a violation of second-degree criminal sexual
conduct, the “court shall provide that, after the offender has completed the sentence
imposed, the com missioner shall place the offender on conditional release for ten years,

8
minus the time the offender served on supervised release.” Minn. Stat. § 609.3455, subd.
6. Conversely, an offender who has a “previous or prior sex offense conviction” is
generally s ubject to a mandatory lifetime conditional -release term. Id., subd. 7(b) . An
offender has a “prior sex offense conviction” if the “offender was convicted of committing
a sex offense before the offender has been convicted of the present offense, regardless of
whether the offender was convicted for the first offense before the commission of the
present offense, and the convictions involved separate behavioral incidents.” Id., subd.
1(g). “Conviction” is defined as “any of the following accepted and recorded by the court:
(1) a plea of guilty; or (2) a verdict of guilty by a jury or a finding of guilty by the court.”
Minn. Stat. § 609.02, subd. 5 (2010).
Berge argues that the district court accepted his guilty pleas “simultaneously” rather
than “sequentially.” He contends that under these circumstances, he was not convicted of
a prior or previous sexual offense , and that he therefore only should be sentenced to the
ten-year conditional-release period. We disagree.
The supreme court discussed Minn. Stat. § 609.3455 in State v. Nodes, 863 N.W.2d
77 (Minn. 2015). In that case, the offender, who had never been convicted of a sex offense,
pleaded guilty to two sex offenses at the same hearing. Id. at 78–79. During sentencing,
the district court stated:
I will now fo rmally accept the pleas, and on count one
adjudicate him guilty of criminal sexual conduct in the first
degree, a felony in violation of Minnesota Statute 609.432,
subd. 1(a) and subd. 2(a), on or about February 26, 2013, and
also on count three, criminal sexual conduct in the second
degree, a felony, in violation of Minnesota Statute 609.343,
subd. 1(a) and subd. 2(a) on or about March 19, 2013.

9

Id. at 79. The supreme court concluded that “[a] defendant who, in a single hearing, is
convicted of two sex offenses, one immediately after the other, each arising out of separate
behavioral incidents, has a ‘prior sex offense conviction’ under Minn. Stat. § 609.3455 .”
Id. at 77. In so concluding, the supreme court emphasized that “[a]s long as one conviction
is entered before the second, it is a ‘prior conviction’ under the plain language of [Minn.
Stat. § 609.3455].” Id. at 82. The court held that at the time the judge accepted the guilty
plea on count one, the defendant was “convicted” and thus, even though th e passage of
time between the conviction of count one and count two was slight, the defendant had a
prior conviction under Minn. Stat. § 609.3455 and was s ubject to lifetime conditional
release. Id. at 81–82.
Berge argues that Nodes does not control here because that case did not address the
question of how multiple convictions should be treated when they were entered
simultaneously rather than sequentially. But the flaw in Berge’s argument is that his
convictions were entered sequentially. The record reflects that in accepting Berge’s guilty
pleas, the district court stated: “Th is Court will accept the pleas, adjudicate [Berge] to be
guilty of Count One, Second Degree Criminal Sexual Conduct, in violation of Minnesota
Statute 609.343 , subdivision 1(a) and 2(a), and Count Two, Second Degree Criminal
Sexual Conduct, in violation of Minnesota Statute 609.343, subdivision 1(a) and 2(a).” The
manner in which the court accepted Berge’s pleas was identical to the manner in which the
court accepted the defendant’s pleas in Nodes, which the supreme court concluded was

10
sequential. See 863 N.W.2d at 79, 82. The court therefore did not err by imposing a lifetime
conditional-release period under Minn. Stat § 609.3455.
Affirmed.