Johnny Hernandez Perez, petitioner, Appellant,

This opinion will be unpublished and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
A19-0235

Johnny Hernandez Perez, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed October 7, 2019
Affirmed
Slieter, Judge

Kandiyohi County District Court
File No. 34-CR-16-84

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

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

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Ross, Judge; and Slieter, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
In this appeal from a denial of postconviction relief, appellant Johnny Hernandez
Perez argues that the postconviction court abused its discretion in refusing to modify his
sentence by finding that the plea agreement did not call for a 144-month sentence. Because

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the record supports the postconviction court’s conclusion that there was no agreement as
to the length of the sentence, we affirm.
FACTS
As a result of an incident reported to Willmar Police in June 2015, the state charged
appellant with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342,
subd. 1(h)(iii) (2014), and second -degree criminal sexual conduct, in violation of Minn.
Stat. § 609.343, subd. 1(h)(iii) (2014). Appellant enter ed an Alford plea1 with respect to
count 1, the first -degree criminal sexual conduct. In return, count 2 was dismissed. The
state also agreed to withdraw its motion seeking an aggravated sentence. The district court
accepted the plea.
On September 13, 2016, the district court held a sentencing hearing. The state
recommended the presum ptive 144 months’ imprisonment. Defense counsel agreed,
stating that “we reviewed the recommendations of probation. They appear consistent with
the plea agreement.” The presentence investigation report recommended 144 months.
However, the signed plea a greement did not state that the parties agreed to 144 months,
only that the state waived its motion for an aggravated sentence.
The district court did not accept the state’s recommendation. It addressed appellant:
“You have failed to take responsibility. You have continued to blame [the victim] and for

1 “A defendant enters an Alford/Goulette plea if he maintains his innocence but ‘reasonably
believes, and the record establishes, the state has sufficie nt evidence to obtain a
conviction.’” State v. Johnson, 867 N.W.2d 210, 215 (Minn. App. 2015) (quoting State v.
Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (citing North Carolina v. Alford, 400 U.S. 25,
37, 91 S. Ct. 160, 167 (1970)), review denied (Minn. Sept. 29, 2015); see also State v.
Goulette, 258 N.W.2d 758, 760 (Minn. 1977).

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that reason I think you need additional time than a typical 144 month sentence because you
cannot begin to heal yourself for your own wrongs until you start admitting what you did.”
The district court noted that the presumptive sentence was 144 months’ imprisonment, with
a discretionary range of up to 172 months. It sentenced appellant to 172 months. Appellant
objected, stating that the sentence is inconsistent with the plea agreement , and that there
was a joint agreement for a 144-month sentence. The district court disagreed, stating, “That
is not my recollection of the plea agreement . . . I took extensive notes with regard to the
plea agreement and it’s not in the plea petition. ” The state noted that it did not have
anything indicating an agreement to a 144 -month sentence. The district court agreed to
review the plea hearing recording and, after doing so, issued an order reiterating that the
plea agreement did not limit the sentence to 144 months and that no change would occur
to the imposed 172-month sentence.
On September 10, 2018, appellant petitioned the district court for postconviction
relief requesting that his sentence be reduced to 144 months pursuant to the terms of the
plea agreement. Appellant argued that, pursuant to the terms of the plea agreement as he
understood them, h e was supposed to receive a 144 -month sentence. Appellant did not
request an evidentiary hearing on the petition. The postconviction court denied the motion,
finding that “[t]he transcript of the plea hearing and the plea petition are silent as to an
agreement on sentencing. There is no evidence in the record that a sentence of 144 months
was an agreed-upon term of the plea agreement.” This appeal follows.

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D E C I S I O N
Appellant argues that the postconviction court erred in denying his petition and not
imposing a 144 -month prison sentence because the parties understood that he would
receive a 144-month sentence in exchange for his guilty plea. The plea agreement—as the
district court found—did not include a term establishing the length of appellant’s sentence.
Accordingly, appellant’s argument lacks merit.
This court reviews a denial of postconviction relief for an abuse of discretion. Reed
v. State , 925 N.W.2d 1 1, 18 (Minn. 2019). In doing so, this court reviews the
“postconviction court’s legal determinations de novo , and its factual findings for clear
error.” See Brown v. State, 895 N.W.2d 612, 617 (Minn. 2017) . “A postconviction court
abuses its discretion when its decision is based on an erroneous view of the law or is against
logic and the facts in the record, or exercises its discretion in an arbitrary or capricious
manner.” Crow v. State, 923 N.W.2d 2, 9 (Minn. 2019) (quotation omitted).
“Determining what the parties agreed to in a plea bargain is a factual inquiry for the
postconviction court to resolve.” State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004). The
petitioner bears the burden of proving facts alleged in the plea agreement by a
preponderance of the evidence. Minn. Stat. § 590.04, subd. 3 (2018).
The postconviction court found that “[t] he petition to plead guilty reflects the fact
that Defendant would offer an Alford plea in exchange for waiver of the State’s Blakely
motion. The petition does not include a stated term for the length of the sentence.” It also
found that, “[b]efore reaching the factual basis of the plea, [the district court] informed
defendant of a ten year conditional release period after he finished [his] 144 m onths,” but

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noted the district court said this to demonstrate how a conditional-release term could be
implemented. Consequently, the postconviction court found that “[t]here is no evidence in
the record that a sentence of 144 months was an agreed-upon term of the plea agreement.”
The record supports the postconviction court’s factual findings.
There are two pieces of evidence in the record which describe the plea agreement
terms.2 First, in the written plea agreement, appellant agreed to the following terms:
In exchange for my plea to Count 1 the State will dismiss Count
2. I will be presenting my plea on an Alford basis. I believe if
the State’s evidence is presented at trial I will be found guilty.
I wish to take advantage of the plea agreement, incl uding
waiver by the State of its Blakely motion.

There is no mention of an agreed-upon 144-month sentence.
Second, in the transcript of the plea hearing, the state summarized the agreement as
follows: “it’s my understanding that [appellant] would plead guilty to count one . . . in
exchange, count two would be dismissed. In light of the plea agreement, the Stat e would
withdraw its Blakely motion seeking an aggravated upward departure.” Appellant made
no objection to this summary. Appellant also agreed that no one made promises other than
those contained in the plea agreement for him to enter the guilty plea.
Appellant, however, points to the following exchange at the hearing:
[Defense counsel]: Your Honor . . . can we just approach for
just one moment?
The Court: Yes
(Judge instructed bench conference does not need to be on
record.)

2 Appellant also draws on the presentence investigation report and state’s recommendations
for a 144-month sentence in support of his argument, but those recommendations do not
establish a term of the plea agreement.

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The Court: [Appellant], do you understand that whether it’s an
Alford plea or not the entry of a guilty plea to count one will
result in a commit to prison?
[Appellant]: Yes.
The Court: Do you also understand that there is a ten year
conditional release period after –
[Appellant]: Yes.
The Court: – after you’re finished with your 144 months that
there’s a ten year conditional release period.
[Appellant]: Yeah – yes.

Appellant argues that this demonstrates that the parties agreed to a 144 -month prison
sentence and that the district court knew that. This is the only mention of a sentence length
during the entire plea hearing —and it was not brought up again until the sentencing
hearing.
With respect to that portion of the transcript, the postconviction court found:
The only mention of 144 months occurred at the plea hearing
in which [the district court] referenced the presumptive
sentence in explaining the conditional release period. At this
point in the hearing, the terms and factual basis of the plea
petition had not been disc ussed. This mention had nothing to
do with Defendant’s proposed or actual sentence length, nor a
promise to sentence at that level, nor was it a term negotiated
by the parties and accepted by the court. Rather, the mention
of a 144 month sentence was in the context of the results of a
guilty plea to First Degree Criminal Sexual Conduct and its
relation to a period of conditional release.

This finding is not clearly erroneous. It is reasonable that the district court made reference
to a prison term within the discretionary range for the first-degree criminal sexual conduct
to explain the conditional-release period.
As the postconviction court found, the plea agreement reflects that appellant would
enter an Alford plea and that the state would dismiss a ch arged offense and waive its

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aggravated sentence motion. But the agreement failed to specify a length of the sentence
in exchange for the guilty plea. We determine that the postconviction court’s factual
findings are not clearly erroneous regarding the parties’ understanding of the plea
agreement terms. Accordingly, appellant failed to meet his burden and the district court
did not abuse its discretion in denying relief.
Affirmed.