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This opinion will be unpublished and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
A18-2126

State of Minnesota,
Respondent,

vs.

Nikki Jo Hauser,
Appellant.

Filed December 23, 2019
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Stearns County District Court
File No. 73-CR-18-624

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

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

Considered and decided by Hooten, Pr esiding Judge; Smith, Tracy M., Judge; and
Kirk, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this direct appeal from her convictions of three counts of aiding and abetting first-
degree criminal sexual conduct, appellant Nikk i Jo Hauser argues that (1) her guilty plea
was unintelligent and involuntar y because it was induced by an unfulfilled promise, and
(2) the district court erred by imposing a lif etime conditional-release term at sentencing
because all three offenses were adjudicated si multaneously. We affirm in part, reverse in
part, and remand for resentencing.
FACTS
In July 2017, Hauser’s daughter, referred to by the parties as Child A, reported to
law enforcement that she had experienced frequent, consistent sexual abuse at the hands of
her mother and her stepfather, S.H. As a result, the state charged Hauser with eleven counts
of aiding and abetting first-degree criminal sexual conduct. On Ju ly 10, 2018, Hauser
pleaded guilty to three counts of aiding and abetting first-degree criminal sexual conduct,
and the state dismissed the remaining counts.
Hauser admitted the following facts at her plea hearing. Hauser is the mother of
Child A. When Child A was about 11 years old, Hauser and her then-husband S.H. spoke
with Child A about beginning a sexual relationship with the two of them. For the next five
years, Hauser and S.H. enga ged in regular sexual relations with Child A. The sexual
activity occurred at least once a week and typically included Hauser and S.H. having Child
A perform oral sex on S.H. Hauser repeatedly encouraged Child A to engage in this sexual
activity.

3

Plea Agreement and Plea Hearing
Hauser agreed to plea d guilty to counts 2, 4, and 7 as charged in the complaint in
exchange for the state’s agreement to dismiss the remaining eight counts. 1 Hauser’s
attorney articulated the agreemen t to the district court at th e July 10, 2018 plea hearing,
stating that there would be a $50 fine and “a 220-month cap of an executed sentence.” The
state confirmed that this was a correct statement of the agreement and added that it would
not object to defense counsel “arguing for 180 months.” The district court questioned
Hauser to ensure that she understood the agreement and asked: “You understand your
worst-case scenario is 220 m onths, but then your attorney will argue for 180 months?”
Hauser confirmed that she understood and that she did not have any questions. Her attorney
tendered a plea petition, which summarized, in handwriting, the agreement as: “plea to ct
2, 4, 7[;] Dismiss remaining cts[;] $50 fi ne, 220 month cap ex.” After Hauser made
admissions to establish a factual basis, the di strict court found that there was a knowing,
intelligent, and voluntary waiver of rights and a sufficient factual basis to support the pleas.
The district court ordered a psychosexual ev aluation and presentence investigation (PSI)
and set the matter on for sentencing.

1 Counts 1, 2, 4, an d 7 were based on multiple acts committed over exte nded periods of
time, whereas the remaining counts were based on personal injury to Child A.

4
Presentence Investigation
The PSI agent found that Hauser had no prior criminal convictions and determined
her presumptive sentencing exposure under the guidelines as follows:
Count 2: 144 months’ imprisonment (144 to 172 range)
Count 4: 180 months’ imprisonment (153 to 216 range)
Count 7: 360 months’ impr isonment (306 to 360 range)
Given these presumptive sentences, the partie s’ agreed-upon sentenci ng range of 180 to
220 months would be a downward durational departure if Hauser was sentenced on all
three counts. The PSI agent concluded that a departure would be inappropriate because
Hauser’s conduct was not less serious than th e typical offense and, if anything, it was
“especially egregious.” The agent also noted that Hauser showed minimal remorse and that
Hauser had told the agent that she did not deserve to go to prison.
Sentencing Hearing
At the sentencing hearing on September 27, 2018, the state explained to the district
court that it was asking it to sentence Hauser on counts 2 and 4, a nd to leave count 7
adjudicated but unsentenced, in order to “put[] the guideline range at what was bargained
for.” The state argued for a prison term of 216 months, the high end of the guidelines range
for count 4 after sentencing on count 2, emphasizing the seriousness of the offense and
Hauser’s lack of genuine remorse. Hauser’s attorney argued for a 180-month term, the
presumptive sentence for count 4 after sentencing on coun t 2, emphasizing mitigating
factors such as Hauser’s cognitive difficulties and history of abuse and manipulation at the

5
hands of S.H. The district court also heard from Child A, who gave a detailed, emotional
account of how the abuse has impacted her.
After hearing the arguments and victim -impact statement, the district court
explained its reasoning for its sentencing decision and why it was unpersuaded by the
defense’s argument for a lesser sentence. Th e district court expressed concern about
Hauser’s lack of remorse, her suggestion in her sentencing letter that Child A was partially
to blame for the sexual activity, and that, even when S.H. was away and in prison, Hauser
made choices that facilitated the abuse and it continued after he was released from prison.
The district court believed that the arguments about Hauser’s cogn itive deficits and own
victimization were valid but had already been accounted for in the plea agreement Hauser
received.
The district court then adjudicated Hauser on all three counts, stating:
Ms. Hauser, you previously pled guilty to Coun ts Two, Four,
and Seven, all three counts be ing criminal sexual conduct in
the first degree in violation of Minnesota Statute 609.342,
subdivision l(h)(3). These offenses each carry a maximum
penalty of 30 years imprisonmen t and/or $40,000 fine. The
Court will adjudicate you guilty of all three counts by virtue of
your pleas. I’m going to sentence only on Count Two and
Count Four, however.

The district court sentenced Hauser to 144 months’ imprisonment for count 2 and 216
months’ imprisonment on count 4, to run concurrently. The district court informed Hauser
that she would be subject to lifetime conditional release for count 4. The district court asked
Hauser and her attorney if they had any obje ctions or questions about the sentencing, and
both responded that they did not.

6
This appeal follows.
D E C I S I O N
Hauser argues that (1) the district c ourt’s imposition and ex ecution of multiple
sentences rendered her plea uni ntelligent and involuntary b ecause she was sentenced on
two counts instead of one, and (2) the district court erred as matter of law by imposing a
lifetime conditional-release term for count 4. We address each argument in turn.
I. The district court’s imposition of mu ltiple sentences did not render Hauser’s
plea unintelligent and involuntary as induced by an unfulfilled promise.

Hauser argues that her guilty plea was rendered unintellig ent and involuntary
because she and the state agreed to a $50 fine and a “220-month cap of an executed
sentence,” but the district court imposed two executed sentences (144 months’
imprisonment on count 2 and 216 months’ imprisonment on count 4, to run concurrently).
Her argument relies on a literal interpretation of the precise language used in the plea
petition; specifically, it places great weight on the absence of an “s” at the end of
“sentence.”
Hauser does not argue that she will spend more time in prison than she anticipated
prior to pleading guilty; it was made clear to her, and she acknowle dged multiple times,
that she was facing up to 220 months’ impr isonment. Nor does Hauser argue that she
thought she would be convic ted of only one count of cr iminal sexual conduct. Her
argument instead appears to be that, even though she knew she would stand convicted of
three counts of first-degree criminal sexua l conduct, and knew th at the state would
recommend up to 220 months’ imprisonment, she thought she would be sentenced on only

7
one count, and because she was sent enced on two counts, her plea was not knowing and
voluntary.
A. Standard of revie w and legal standard
As an initial matter, Hauser did not move to withdraw her guilty plea pursuant to
Minn. R. Crim. P. 15.05 at the district court. And she does not ask to withdraw the plea
here, either, but instead requests that this court “remand the matter to the district court with
instructions to re-sentence Hauser to a singl e executed sentence of no more than 220
months and a single $50 fine to comply with the terms of her plea agreement.” Although
her requested remedy from this court would not be proper,2 a defendant may challenge the
validity of a plea on direct appeal from a j udgment of conviction or in a postconviction
hearing. Brown v. State, 449 N.W.2d 180, 182-83 (Minn. 1989).
As to the standard of review, “what the parties agreed to involves an issue of fact to
be resolved by the district court,” but “[i]ssues involving the interpretation and enforcement
of plea agreements . . . are issues of la w that [appellate courts] review de novo.” State v.

2 If a plea agreement is breached, a court “may allow withdrawal of the plea, order specific
performance, or alter the sentence if appropriate.” State v. Brown, 606 N.W.2d 670, 674
(Minn. 2000). This decision, though, rests within the sound discretion of the district court.
See State v. Montermini, 819 N.W.2d 447, 455 (Minn. App. 2012) (noting that the district
court generally has “flexibility to consider the effect of the court of appeals decision on the
remainder of the plea agreement”), review denied (Minn. Nov. 20, 2012); see also State v.
Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (holding that “there is no constitutional right
to specific performance of a plea agreemen t”). This is because “a plea agreement
represent[s] a bargained-for understanding between the government and 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 criminal matters.” Montermini, 819 N.W.2d
at 455 (quotation omitted).

8
Brown, 606 N.W.2d 670, 674 (Minn. 2000) (cita tions omitted). Here, the parties dispute
the meaning of the plea agreement, which, as summarized by Hauser’s attorney at the plea
hearing, says that Hauser w ould plead guilty to counts 2, 4 and 7 and face a “220-month
cap of an executed sentence.” Hauser contends that she thought this meant that she would
be sentenced on only one count and face up to 220 months on that count, whereas the state
contends that the only reasonable interpretation of this agreement is that Hauser would be
sentenced on two counts and face a 180 to 220 month senten cing range. We review this
issue regarding the interpretation of the plea agreement de novo.
“[T]here are three basic prerequisites to a valid guilty plea: the plea must be
(a) accurate, (b) voluntary, and (c) intelligen t (that is, knowing and understanding).”
Brown v. State, 449 N.W.2d at 182. Our focus here is on the latter two requirements. The
voluntariness requirement is aimed at “insur[ing] that the defendant does not plead guilty
because of any improper pr essures or inducements.” Id. In examining the voluntariness
requirement, the Minnesota Supreme Court noted in State v. Brown that, “[w]hen a plea
rests in any significant degree on a promise or agreement of the prosecutor, so that it can
be said to be part of the inducement or consideration, such promise must be fulfilled.” 606
N.W.2d at 674 (quotation omitted). If such a promise is not fulfilled, due process is
violated. State v. Wukawitz , 662 N.W.2d 517, 522 (M inn. 2003). The intelligent
requirement is meant to ensure “that the defendant understands the charges, his or her rights
under the law, and the consequences of pleading guilty.” Id. (quotation omitted).
We begin with whether Hauser’s plea was involuntary as induced by an unfulfilled
promise.

9
B. Hauser’s plea was voluntary.
“In determining whether a plea agreement [i s] 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 at 674 (quotation omitted). Courts resolve interpretive disputes over
plea agreements using general principles of contract interpretation. See State v. Spaeth, 552
N.W.2d 187, 194 (Minn. 1996 ). These principles are temper ed, though, with “safeguards
to insure the defendant [receives] what is reasonably due in the circumstances.” Id.
(quotation omitted). For instance, in close cases, courts should resolve ambiguities in favor
of the defendant. See In re Ashman, 608 N.W.2d 853, 858 (Minn. 2000). Whether there is
an ambiguity in the plea agreement is a legal question. Id.
Hauser argues that the plea agreement ca lled for sentencing on only one count of
first-degree criminal sexual conduct. The stat e argues that Hauser’s interpretation is
unreasonable and that the plea agreement cl early contemplates se ntencing on multiple
counts. The state contends that when Haus er’s attorney summari zed the agreement by
saying “there would be a 220-month cap on an executed sentence,” he was merely
emphasizing the maximum length of Hauser’s total prison term. As the state points out, the
prison-term length was the sole issue disputed at sentencing and is, practically speaking,
the issue that typically matters most to the defendant. The state submits that this is not an
unusual short-hand description of the agreement and provides several unpublished opinions
of this court that similarly use “sente nce”—singular—when refe rring to a combined
sentence.

10
The state also makes several arguments based on context that support its reading of
the plea agreement and show that Hauser had the same understanding as the state at the
time of the guilty plea and sentencing hearings. First, at the sentencing hearing, the parties
unequivocally agreed that Hauser should be sentenced on two counts in order to conform
to their plea agreement:
[PROSECUTOR]: [W]e’re asking the court . . . to sentence on
Counts Two and Four, I believe that that’s an agreement of the
parties, to leave Count Seven then adjudicated but unsentenced
at this point. That puts the guideline range at what was
bargained for.

THE COURT: I’m assuming you have no objection to that,
[Hauser’s attorney]?

[HAUSER’S ATTORNEY]: No, I do not have any objection
to that.

The state argues that Hauser’s silence duri ng this exchange, in addition to her later
representation to the district court that she had no questions ab out her sentences,
demonstrates that she expected to be sentenced on more than one count. An appellate court
may infer from a defendant’s failure to object to the state’s request at sentencing, as well
as from the court’s imposition of the sentence, that the defendant knew about the sentencing
conditions expressed on the record. See State v. Rhodes, 675 N.W.2d 323, 326-27 (Minn.
2004).
Further, as the state notes, under Hause r’s purported interpre tation of the plea
agreement, she would have only faced a presumptive range of 144 to 172 months’
imprisonment. It was precisely because the three felony points from count 2 were added to

11
her criminal history score for count 4 (or “ Hernandized”3) that the parties were able to
argue for a presumptive range between 180 and 216 months. If Hauser was only facing one
sentence, she would oddly have been argui ng for an upward durational departure by
arguing for 180 months , which does not align with th e defense’s mitigation-focused
sentencing argument.
Hauser’s proposed interpretation of the plea agreement is unreasonable. For the
above reasons, it is clear that her attorney, th e state, and the court always understood the
plea agreement to mean that she would be sentenced on multip le counts. Nothing in the
record suggests that her attorney ever gave her a different impression. Hauser confirmed at
her guilty plea hearing that she understood that her “worst-case scenario [was] 220 months,
but then [her] attorney [would] argue for 180 months.”
Furthermore, even if Hauser did harbor a personal belief that she would be convicted
on all three counts, sentenced on one, and receive up to 220 months’ imprisonment on that
one count, there is no evidence that this und erstanding induced her guilty plea. To show
that an unfulfilled promise rendered her guilty plea involuntary, Hauser needs to show that
her plea rested, “in any significant degree,” on that promise. See James v. State , 699
N.W.2d 723, 728 (Minn. 2005) (quotation omitted); State v. Brown, 606 N.W.2d at 674.

3 See State v. Hernandez , 311 N.W.2d 478, 481 (Minn. 1981). “ Hernandize” is “the
unofficial term for the process described in section 2.B.1.e [of the sentencing guidelines]
of counting criminal history when multiple offenses are sentenced on the same day before
the same court.” Minn. Sent. Guidelines 1. B.9 (2012). The guidelines provide that
“[m]ultiple offenses sentenced at the same time before the same court must be sentenced
in the order in which they occurred. As each offense is sentenced, include it in the criminal
history on the next offense to be sentenced . . . .” Minn. Sent. Guidelines 2.B.1.e (2012).

12
Hauser does not explain in he r briefing how her understanding of the plea agreement as
calling for a single sentence influenced her decision to plead guilty. Nothing in the record
suggests that her plea was in any wa y influenced by this understanding. See, e.g., State v.
Brown, 606 N.W.2d at 672 (noting that the de fendant specifically articulated his
understanding of the plea agreement at the plea hearing). Instead, it seems far more likely
that Hauser’s guilty plea was induced by the state’s promise to dismiss the other eight
counts of first-degree criminal sexual conduct and recommend that Hauser serve no more
than a total of 220 months in prison. The record does not specify how much time Hauser
could have faced if convicted on all eleven counts, but it seems significant that, even if she
had been sentenced concurrently on all three of the counts to which she pleaded guilty, she
would have faced up to twelve more years in prison. Haus er has failed to show that her
plea was involuntary as induced by an unfulfilled promise.
C. Hauser’s plea was intelligent.
Hauser’s argument that her plea was unintel ligent is, in essence, the same as her
argument that it was involuntary as induced by an unfulfilled promise. She argues that she
was never told, prior to plead ing guilty, that she would be sentenced on more than one
count, so she therefore did not understand the consequences of the plea. See Brown v. State,
449 N.W.2d at 182. As the supreme court explained in Rhodes, though, a court may infer
from a defendant’s “failure to object to th e presentence investigation’s recommendation,
the state’s request at the sentencing hearing and the court’s imposition of the sentence” that
the defendant “understood from the beginning” a particular aspect of the plea agreement.
675 N.W.2d at 327. Here, it was made clear on the record at the sent encing hearing that

13
the state was arguing for, and Ha user’s attorney supported, sentencing on two counts and
leaving the third unsentenced. Hauser’s co rresponding silence demonstrates that she
understood the consequences of her plea. Her plea was intelligent.
II. The district court improperly sent enced Hauser to a lifetime conditional-
release term.

Hauser argues that because she did not have a “previous or prior” sex offense
conviction when she was senten ced on count 4, the district court erroneously imposed a
lifetime conditional-release term in violation of Mi nn. Stat. § 609.3455 (2012). The state
agrees that the lifetime conditional-release te rm was unauthorized by law. Both parties
agree that the case should be remanded with instructions to reduce the conditional release
term to ten years. The issue of whether simu ltaneously adjudicated convictions can result
in a prior conviction and a pres ent offense is a matter of stat utory interpretation, which is
a question of law that appellate courts review de novo. See State v. Campbell, 814 N.W.2d
1, 4 (Minn. 2012).
Minn. Stat. § 609.3455, subd. 6, mandates a ten-year conditional-release term for
offenders convicted of crimin al sexual conduct in violati on of Minn. Stat. §§ 609.342,
609.343, 609.344, 609.345, or 609.3453. However, an o ffender convicted under these
sections may instead be sentenced to a life time conditional-release term if they have a
“previous or prior sex offense conviction.” Mi nn. Stat. § 609.3455, subd. 7. An offender
has a “prior 4 sex offense conviction” “if the offender was convicted of committing a sex

4 The “previous sex conviction” provision does not apply here. “A conviction is considered
a ‘previous sex offense conviction’ if the o ffender was convicted and sentenced for a sex

14
offense before the offender has been convicted of the present offense, regardless of whether
the offender was convicted fo r the first offense before th e commission of the present
offense, and the convictions involved separate behavioral incidents.” Id., subd. 1(g)
(emphasis added).
In State v. Nodes , the supreme court determined th at the meaning of “prior sex
offense conviction” in Minn. Stat. § 609.3455, subd. 1(g), is unambiguous and accordingly
held that, when two convictions are entered in the same hearing, the first conviction entered
constitutes a “prior sex offense conviction” with respect to any subsequently entered
conviction. 863 N.W.2d 77, 80, 82 (Minn. 2015 ). To analyze the plain meaning of the
statute, the Nodes court interpreted the terms “convicted,” “before,” and “present offense.”
Id. at 80. A person is “convicted” pursuant to a guilty plea when the plea is accepted and
recorded by the court. Id. (citing Minn. Stat. § 609.02, subd. 5 (2014)). “Before,” as used
in the statute, means “earlier than” and requires only that the first conviction be adjudicated
“at an earlier time than the second.” Id. at 82 (citing Webster’s Third New International
Dictionary of the English Language, Unabridged 197 (2002)). Finally, a “present offense”
is one “now existing or in progress.” Once the district court announces that the defendant
is adjudicated guilty of an offense, “in the next instant it [is] no longer a present offense,
but [is] now a past conviction.” Id.
The supreme court’s decision in Nodes gave rise to the question: If the district court
enters convictions on multiple offenses simultaneously rather than sequentially in a

offense before the commission of the present offense.” Minn. Stat. § 609.3455, subd. 1(f)
(emphasis added).

15
hearing, does it mean that none of the offenses is a qualifying “prior sex offense
conviction”? Following Nodes, this court answered the ques tion affirmatively in a series
of unpublished opinions, reasoning that when the court enters convictions simultaneously,
there was never a moment in time where the defendant had a “prior sex offense
conviction.”5 We then confirmed this interpretation in State v. Brown , ___ N.W.2d ___,
___, 2019 WL 6460852, at *6 (Minn. App. Dec. 2, 2019), holding that, under the plain
meaning of section 609.3455, subdivision 1(g), “when a district court convicts an offender
simultaneously of multiple sex offenses in the same hearing, the offender does not have a
prior sex-offense conviction and is not subject to a lifetime conditional-release term under
Minn. Stat. § 609.3455, subd. 7(b), absent another qualifying conviction.”
Under Brown, Hauser and the state are correct that the district court erroneously
imposed a lifetime conditional-release term here. The parties agree, and the record
supports, that Hauser’s convictions on count s 2 and 4 were entered simultaneously. The
district court stated at the sentencing hearing:
Ms. Hauser, you previously pled guilty to Coun ts Two, Four,
and Seven, all three counts be ing criminal sexual conduct in

5 See, e.g., Studanski v. State, No. A17-0999, 2018 WL 1569955, at *4 (Minn. App. Apr. 2,
2018) (simultaneous entry of two guilty pleas), review denied (Minn. June 19, 2018); State
v. Davidson , No. A17-0149, 2018 WL 1370569, at *7 (Minn. App. Mar. 19, 2018)
(simultaneous entry of th ree jury convictions); State v. Ingalls, No. A16-1803, 2017 WL
5560033, at *7 (Minn. App. Nov. 20, 2017) (simultaneous entry of two jury convictions);
State v. Klanderud, No. A15-1897, 2016 WL 6395252, at *4-5 (Minn. App. Oct. 31, 2016)
(simultaneous entry of two guilty pleas), review denied (Minn. Jan. 17, 2017); State v.
Rekdal, No. A14-1364, 2015 WL 7199866, at *1-3 (Minn. App. Nov. 16, 2015)
(simultaneous entry of two guilty pleas); see also Edwards v. State, No. A18-1263, 2019
WL 2571680, at *1 (Minn. App. June 24, 2 019) (sequential entry of two guilty pleas),
review denied (Minn. Sept. 17, 2019).

16
the first degree in violation of Minnesota Statute 609.342,
subdivision l(h)(3). These offenses each carry a maximum
penalty of 30 years imprisonm ent and/or $40,000 fine. The
Court will adjudicate you guilty of all three counts by virtue of
your pleas. I’m going to sentence only on Count Two and
Count Four, however.”

(Emphasis added.) There was never a moment in time where Hauser was convicted of one
count but not the others. Hauser thus had no other previous or prior sex offense convictions
at the time of her adjudication on count 4. We accordingly remand the case to the district
court for resentencing consistent with this opinion.
Affirmed in part, reversed in part, and remanded.