Markhel D. Franklin, 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This opinion will be unpublished and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
A19-0281

Markhel D. Franklin, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 9, 2019
Affirmed
Florey, Judge

Ramsey County District Court
File No. 62-CR-16-8055

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

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

John J . Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Reyes, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this appeal from the summary denial of his postconviction petition, appellant
argues (1) that the postconviction court erred by amending the offense listed in the warrant

2
of commitment and removing a conditional -release term to reflect a different conviction -
statute subdivision and (2) that plea withdrawal is required because the plea d id not
establish the elements of the originally listed offense. Because the postconviction court
properly remedied the sentencing errors, which co nsisted of clerical mistakes and an
unauthorized conditional -release term, and did not abuse its discretion by deeming
appellant’s plea accurate and denying the postconviction petition, we affirm.
FACTS
In November 2016, the state charged appellant Markhel D. Franklin1 with one count
of fourth -degree assault. The c omplaint listed the charge as “Assault 4th Deg –Secure
Treatment Facility –Throw/Transfer Bodily Fluid or Feces,” and listed the applicable
statute as Minn. Stat. § 609.2231, subd. 3a(c)(2) (2016), “with reference to” Minn. Stat.
§ 609.2231, subd. 3 (2016).
Section 609.2231, subdivision 3a(c)(2), applies to certain committed persons and
criminalizes intentionally transferring “urine, blood, semen, or feces” onto “ an employee
or other individual who supervises and works directly with patients at a secure treatment
facility.”2 Section 609.2231, subdivision 3, the statute under which appellant was charged
by “reference,” criminalizes intentionally transferring bodily fluids or feces onto “an
employee of a correctional facility.”

1 In his brief, and in the record, appellant is referred to as Markel Harris-Franklin.
2 A secure treatment facility is defined to include “the Minnesota Security Hospital ” and
“the Minnesota sex offender program facility in Moose Lake .” See Minn. Stat.
§§ 609.2231, subd. 3a, 253B.02, subd. 18a, 253D.02, subd. 13 (2018).

3
The charge description in the complaint indicated that “[o]n or about November 9,
2016,” appellant “did intentionally throw or otherwise transfer bodily fluids or feces at or
onto an employee of a correctional facility.” The probable-cause portion of the complaint
stated that appellant was in custody “ at the Ramsey County Law Enforcement Center ”
when a sergeant “and other correctional officers were sent to [appellant’s] cell on a suicide
attempt,” and found him with “his jumpsuit tied in a knot around his neck.” According to
the complaint, appellant “spat on [the sergeant’s] jacket and sleeve,” and afterward stated
that he was “‘talking sh*t’ and his spit came out and got on the correctional officer.”
On January 27, 2017, appellant pleaded guilty to “assault in the fo urth degree.” In
establishing a factual basis, he acknowledged that “[o]n November 19, 2016,” 3 he was
being held “in custody at the Ramse y County Law Enforcement Center, ” “multiple
correctional officers had reason to enter [his] cell . . . on a medical emergency,” and during
that intervention he intentionally “spit on a correctional officer.” Appellant also tendered
to the court a plea petition. It indicated that he understood he was charged with fourth -
degree assault, but did not present further specifics on the charge.
Prior to sentencing, a presentence investigation (PSI) report was prepared. It stated
that appellant pleaded guilty to fourth -degree assault of a correctional officer, but also
noted that he was convicted under section 609.2231, subdivis ion 3a(c)(2), concerning
secure treatment facilities, as well as section 609.2231, subdivision 3, concerning

3 The reference to N ovember 19 appears to be an error, as the offense date listed in the
compliant was November 9. Appellant makes no argument concerning this discrepancy.
See Scruggs v. State , 484 N.W.2d 21, 24 n.1 (Minn. 1992) (concluding that issues not
briefed were “waived”).

4
correctional employees . It noted that, pursuant to section 609.2231, su bdivision 3a(e),
appellant was subject to a five -year conditional -release term should his sentence be
executed. It stated that appellant would be appearing for sentencing for fourth -degree
assault “of a [c]orrectional [o]fficer.” A sentencing worksheet listed the conviction statute
as Minn. Stat. § 609.2231, subd. 3a(c)(2).
In March 2017, a sentencing hearing was held. The district court stated that
appellant was there for sentencing for “ assault in the fourth degree.” Appellant’s counsel
indicated no corrections to the PSI report. In imposing the sentence, the district court stated
that appellant had entered a guilty plea “to the crime of assault in the fourth degree” in
violation of section 609.2231, subdivision 3, “defining the penalty of not more than two
years in prison and a $4,000 [fine] or both.” On the charge of “assault in the fourth degree,”
the district court sentenced appellant to a stay of execution on a 17 -month sentence, and
placed him on probation for two years. The court also stated that “with respect to the
assault charge,” pursuant to section 609.2231 su bdivision 3(a)(e), appellant was “subject
to a five-year [period of] conditional release should his sentence be executed.”
The warrant of commitment indicated that appellant was convicted of violating
section 609.2231, subdivision 3a(c)(2), involving a “ [s]ecure [t]reatment [f]acility,” and
sentenced under the penalty statute, section 609.2231, subdivision 3 , which concerns
correctional employees . The warrant of commitment indicated a 17 -month sentence,
stayed for two years, with a five-year conditional-release term.
In the fall of 2018, appellant petitioned for postconviction relief. He asserted that
his plea was inaccurate because it did not establish any of the elements of the offense; he

5
was convicted of transferring bodily fluids onto an employee of a secure treatment facility,
but his crime involved a correctional facility and employee. Appellant asked to withdraw
his guilty plea.
In December 2018, the postconviction court summarily denied appellant’s petition.
The court found that appellant ne ver admitted to transferring bodily fluids onto an
individual who worked at a secure treatment facility, rather, he admitted that he transferred
bodily fluids onto a correctional officer. The court found that the state intended to charge
appellant under the correctional-employee subdivision, and although the complaint listed
the wrong subdivision, the charge description and probable -cause recitation concerned a
correctional employee. The court found that it was “apparent from the record that all
parties involved understood that [appellant] was being charged with, [pleaded] guilty to,
and was being sentenced for the crime of assault in the fourth degree based on the
intentional transfer of bodily fluids onto a correctional officer.” The court found that “[t]he
error on the criminal judgment and warrant of commitment can be ascertained and
corrected based solely on the record, and cannot be attributed to the exercise of judicial
discretion.” Therefore, the court concluded that the errors were clerical mistakes.
Pursuant to Minn. R. Crim. P. 27.03, subd. 10, permitting the correction of clerical
mistakes “in a judgment, order, or in the record arising from oversight or omission ,” the
postconviction court amended the warrant of commitment to reflect a conviction of fourth-
degree assault of a correctional employee, a violation of section 609.2231, subdivision
3(2). Pursuant to Minn. R. Crim. P. 27.03, subd. 9, permitting the correction of
unauthorized sentences, the court removed the five-year conditional-release term, which it

6
concluded was inapplicable. The court also concluded that appellant’s plea was accurate
because he was “clearly aware of the charge” of assaulting a correctional employee based
on the language in the complaint. This appeal followed.
D E C I S I O N
Appellant challenges the denial of his postconviction petition, arguing that his plea
was invalid because it did not establish the elements of the offense, and that the sentencing
errors could not be remedied under Minn. R. Crim. P. 27.03. We first address whether the
postconviction court was permitted, pursuant to rule 27.03, to correct the sentencing errors.
I. The postconviction court was permitted, pursuant to Minn. R. Crim. P. 27.03,
subd. 10, to correct the errors in the warrant of commitment as clerical
mistakes, and, pursuant to Minn. R. Crim. P. 27.03, subd. 9, to remove the
unauthorized conditional-release term.

Rule 27.03, subdivision 10, states that “[c]lerical mistakes in a judgment, order, or
in the record arising from oversight or omission may be corrected by the court at any time,
or after notice if ordered by the court. ” Caselaw on the application of subdivision 10 is
limited. In Pearson v. State, the supreme court indicated that a postconviction court may
remove, as a clerical error, a conviction in the record that is inconsistent with the sentencing
transcript. 891 N.W.2d 590, 595 n.5. (Minn. 2017).
Subdivision 10 did not become effective until 2010, and similar language was
formerly contained in subdivision 8. See Minn. R. Crim P. 27.03, subd. 8 (2008) (“Clerical
mistakes in judgments, orders, or other parts of the record or errors in the record arising
from oversight or omission may be corrected by the court at any time and after such notice,
if any, as the court o rders.”). Additional caselaw exists on the application of the clerical -

7
mistake rule under subdivision 8. In State v. Pflepsen , the supreme court stated that a
clerical error “cannot reasonably be attributed to the exercise of judic ial consideration or
discretion,” and concluded that a district court ’s decision not to order restitution was
discretionary, and therefore not a clerical error. 590 N.W.2d 759, 768 n.4 (Minn. 1999)
(quotation omitted).
In State v. Walsh, this court indicated that subdivision 8 could be used to modify or
correct a sentence. 456 N.W.2d 442, 443 (Minn. App. 1990); see also Tauer v. State, 451
N.W.2d 649, 651 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990). The Walsh
court utilized caselaw from the civil context to help define a clerical mistake:
Such a mistake ordinarily is apparent upon the face of the
record and capable of being corrected by reference to the
record only. It is usually a mistake in the clerical work of
transcribing the particular record and cannot reas onably be
attributed to the exercise of judicial consideration or discretion.

456 N.W.2d at 443 (quotation omitted). The Walsh court noted that “[a] motion to correct
a clerical error can only be used to make the judgment or record speak the truth and cannot
be used to make it say something other than what originally was pronounced. ” Id.
(quotation omitted).
In an earlier case, State v. Rock, following a motion from the state several months
after sentencing, the district court modified the defendant’s sentence to reflect an increased
criminal-history score discovered after sentencing. 380 N.W.2d 211, 213 (Minn. App.
1986), review denied (Minn. Mar. 27, 1986). This court stated, “ we are unaware of any
general authority which permits the trial court to r esentence a defendant, except under
limited circumstances of Minn. R. Crim. P. 27.03, subd. 8 and subd. 9, and “[b]ecause the

8
sentence here was authorized by law, the trial court lacked authority under the rules to
correct the sentence. ” Id. at 213 -14; see also State v. Isaacson , 409 N.W.2d 291, 293
(Minn. App. 1987) (“We conclude that appellant’s original sentence was authorized by law
and that the trial court lacked authority to ‘correct’ the sentence to a consecutive term when
it did not originally specify that the sentence was to be served consecutively.”).
Whether a district court acted within the confines of rule 27.03, subdivision 10, by
correcting a clerical mistake presents a questi on of law, subject to de novo review. See
Pflepsen, 590 N.W.2d at 768 n.4 (“The district court ’s de cision not to order
restitution . . . was a discretionary conclusion . . . [and] as such, it does not constitute a
clerical error. ”); Walsh, 456 N.W.2d at 4 43-44 (concluding that sentence imposed in
accordance with incorrect criminal-history score listed in inaccurate sentencing worksheet
could not be corrected as a clerical mistake).
Here, the postconviction court properly remedied the errors in the warran t of
commitment as clerical mistakes. T he district court, at sentencing, stated that appellant
was convicted of violating section 609.2231, subdivision 3, which concerns correctional
employees. The warrant of commitment did not reflect the orally pronoun ced sentence,
and remedying that error was not discretionary. See Pflepsen, 590 N.W.2d at 768 n.4.
“‘[A]n orally pronounced sentence controls over a [written] judgment and commitmen t
order when the two conflict.’” State v. Staloch, 643 N.W.2d 329, 331 (Minn. App. 2002)
(quoting United States v. Villano , 816 F.2d 1448, 1450 (10th Cir. 1987)). The error was
apparent from the record. See Walsh, 456 N.W.2d at 443. T he secure-treatment-facility
subdivision conflicted with the referen ces to correctional officers contained in the

9
complaint and made during appellant’s plea. Additionally, a conviction under the secure-
treatment-facility subdivision was not permissible. See Rock, 380 N.W.2d at 213-14.
Appellant’s offense did not involve a secure-treatment facility. The postconviction court
was permitted, pursuant to Minn. R. Crim. P. 27.03, subd. 10, to correct the errors in the
warrant of commitment.
The district court also imposed, pursuant to subdivision 3a(e), a five -year
conditional-release term, which is inapplicable to a violation of the correctional-employee
subdivision, but also inapplicable to the secure -treatment-facility subdivision listed in the
complaint and warrant of commitment, subdivision 3a(c). 4 See Minn. Stat. § 609.2231,
subd. 3a(d), (e). The district court’s imposition of a conditional-release term constituted
an unauthorized sentence, properly remedied under Minn. R. Crim. P. 27.03, subd. 9. See
Reynolds v. State , 888 N.W.2d 125, 130 (Minn. 2016) (concluding tha t unauthorized
conditional-release term was properly challenged under rule 27.03, subdivision 9).
II. The postconviction court did not abuse its discretion by denying appellant’s
postconviction petition, which challenged the accuracy of his plea.

Having determined that the postconviction court was permitted to correct the
sentencing mistakes, we next address whether it properly denied appellant’s postconviction
petition. Appellant argues that his plea was inaccurate because it did not establish th e

4 Section 609.2231, subdivision 3a, contains two sentencing requirements, which apply to
subdivision 3a(b), a subparagraph not listed in the complaint. First, subdivision 3a(d)
generally requires that a court sentence a person “convicted of violat ing paragraph
(b) . . . for not less than one year and one day. ” Second, subdivision 3a(e) requires the
imposition of a five -year conditional -release term when a person is sentenced “to the
custody of the commissioner of corrections” for violating “paragraph (b).”

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elements of the offense. The postconviction court concluded that appellant’s plea was
accurate.
We review a postconviction court’s denial of a request to withdraw a guilty plea for
an abuse of discretion . Sanchez v. State , 890 N.W.2d 716, 719 -20 (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. ” Riley v. State, 819 N.W.2d 162,
167 (Minn. 2012) (quotation omitted). “ We review findings of fact for clear error and
issues of law de novo .” Sanchez, 890 N.W.2d at 720. We review the validity of a guilty
plea de novo. State v. Mikulak , 903 N.W.2d 600, 603 (Minn. 2017). A postconviction
petition may be summarily denied when the petition an d the files and records of the
proceeding conclusively show that the petit ioner is entitled to no relief. Minn. Stat.
§ 590.04, subd. 1 (2018).
A district court must allow a defendant to withdraw a guilty plea “upon a timely
motion and proof . . . that withdrawal is necessary to correct a manifest injustice.” Minn.
R. Crim. P. 15.05, subd. 1. A manifest injustice occurs when a guilty plea is not accurate,
voluntary, or intelligent. State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). A defendant
bears the burden of showing that the plea was invalid. Lussier v. State, 821 N.W.2d 581,
588 (Minn. 2012).
“The accuracy requirement is intended to protect the defendant from pleading guilty
to a charge more serious than he or she could be convicted of were the defendant to go to
trial.” Williams v. State, 760 N.W.2d 8, 12 (Minn. App. 2009) (quotation omitted), review
denied (Minn. Apr. 21, 2009). An accurate plea must be establi shed on a proper factual

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basis. Theis, 742 N.W.2d at 647. “Ordinarily, an adequate factual basis is established by
questioning the defendant and asking the defendant to explain in his or her own words the
circumstances surrounding the crime.” Williams, 760 N.W.2d at 12 (quotation omitted).
The Constitution requires the state to inf orm a defendant of the “nature and cause
of the accusation” against him. U.S. Const. amends. VI; see also Minn. R. Crim. P. 2.01,
subd. 1 (“The complaint must specify the offense charged, the statute allegedly violated,
and the maximum penalty.”). The state meets this requirement “if the charging instrument
contains such descriptions of the offense charged as will enable him to make his defense
and to plead the judgment in bar of any further prosecution for the same crime.” State v.
Chauvin, 723 N.W.2d 2 0, 29-30 (Minn. 2006) (quotation omitted). We review de novo
whether a complaint sufficiently informed the appellant of the nature and cause of the
accusations against him. See State v. Bias, 419 N.W.2d 480, 486 (Minn. 1988).
Here, the complaint sufficiently apprised appellant of the charge of spitting on a
correctional officer, and appellant’s plea was accurate. Both the charge description and
probable-cause portion of the complaint made reference to the crime being committed
against an employee or officer working at a correctional facility, and the complaint
referenced the correctional -employee subdivision, subdivision 3. The only incorrect
portions of the complaint were the reference to subdivision 3a(c)(2), concerning secu re-
treatment facilities, and the words “Secure Treatment Facility” listed in the charge.
At the plea hearing, appellant, represented by counsel, stated that he understood the
charge against him. In establishing a factual basis for the plea, appellant ad mitted that he
was being held “at the Ramsey County Law Enforcement Center,” that “multiple

12
correctional officers” entered his cell, and that he intentionally spat “on a correctional
officer.” This satisfies the requirements of section 609.2231, subdivision 3, which imposes
criminal liability if a person intentionally transfers bodily fluids onto an employee of a
correctional facility. This plea in no way satisfies the requirements of subdivision 3a(c)(2),
which does not even criminalize the transfer of s aliva. See Minn. Stat. § 609.2231, subd.
3a(c)(2) (criminalizing the transfer of “urine, blood, semen, or feces”).
Appellant correctly notes in his brief that it is an unconstitutional violation of due
process to obtain a conviction upon a charge not made. See Jackson v. Virginia, 443 U.S.
307, 314, 99 S. Ct. 2781, 2786 (1979). However, appellant was informed, by the
complaint, of the charge of assault of a correctional employee, both in terms of the charge
description and probable -cause information, as well as the reference to the correctional -
employee subdivision contained in the complaint.
The Minnesota Supreme Court has held that “a conviction after a fair trial will stand
unless there is actual proof that defendant has in fact been misled as to the charge brought
against him, to his prejudice. ” Bias, 419 N.W.2d at 486. Although this case involves a
plea, and not a trial, nothing in the record suggests that appellant was misled by the formal
defects in the complaint. Given appellant’s burden to demonstrate that his plea was invalid,
and the lack of anything in the record or postconviction petition suggesting that appellant
was misled by the references to secure -treatment facilities in the complaint, the district
court did not abuse its discretion by denying appellant’s postconviction petition.
Affirmed.