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Uselman v. State

Court of Appeals of Minnesota

June 10, 2013

Kevin Michael Uselman, petitioner, Appellant,
State of Minnesota, Respondent.

Carlton County District Court File No. 90-CR-10-114

David W. Merchant, Chief Appellate Public Defender, Michael W. Kunkel, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Thomas H. Pertler, Carlton County Attorney, Jesse D. Berglund, Assistant County Attorney, Carlton, Minnesota (for respondent)

Considered and decided by Chutich, Presiding Judge; Peterson, Judge; and Ross, Judge.


A defendant's guilty plea is not knowing and voluntary if it arises from a plea petition that erroneously indicates that a conditional release period will not follow the defendant's imprisonment.


ROSS, Judge

Kevin Uselman, a civilly committed sex offender confined and subject to treatment at Moose Lake, pleaded guilty to and was convicted of assaulting one of the treatment program's staff members in December 2009. Now Uselman appeals from the district court's denial of his petition for postconviction relief for that offense. He argues that his guilty plea was invalid because he entered it on the state's erroneous promise that his sentence would not include a mandatory five-year conditional release term. Because Uselman's plea agreement as memorialized in the plea petition erroneously stated that a period of conditional release did not apply, he did not plead guilty knowingly. We therefore reverse and remand.


The state charged Kevin Uselman in January 2010 with one count of fourth-degree assault after he held a sex-offender security counselor in a headlock and punched him repeatedly in the face and head. Uselman allegedly told facility staff that his motive for the assault was to be sent to prison.

Uselman and the state entered into an agreement under which Uselman would plead guilty to the charge and the state would dismiss a pending complaint in an unrelated matter. Uselman's plea petition, which the state acknowledges embodies the plea agreement here, included the following terms: "[P]lead as charged to 4° assault w/Guidelines sentence of 1 yr 1 day dismiss file CR-10-119 PSI." Most significant to this appeal, the plea petition, which was mostly a preprinted form with several blanks for handwritten designations, included the declaration, "In this case, the period of conditional release is___ years, " and "N/A" was handwritten into the blank. Notwithstanding this notation in Uselman's plea petition, Minnesota Statutes section 609.2231, subdivision 3a(d) (2008), required a conditional release term of five years for Uselman's offense. Uselman signed the plea petition, and the district court accepted it during a plea hearing the next day.

Corrections Agent Mark McCarthy completed a sentencing worksheet that, contrary to the plea petition, indicated accurately that Uselman should receive a five-year period of conditional release after an executed prison sentence. Uselman's counsel addressed the worksheet at Uselman's sentencing hearing, stating, "[T]he worksheet I think is properly filled out. I reviewed it with Mr. Uselman and I don't have any objections. I think it's appropriate." The district court announced the sentence, initially stating that it included no period of conditional release. But Agent McCarthy noted this as error, and the district court corrected itself by stating that a five-year conditional release period applied. The district court did not highlight that this term of the sentence differed from Uselman's plea petition. And neither Uselman nor his attorney objected to the worksheet's, Agent McCarthy's, or the district court's indication that the five-year conditional release period would follow Uselman's incarceration. Uselman did not directly appeal his conviction or sentence.

Uselman filed a petition for postconviction relief seeking permission to withdraw his guilty plea. He argued that his plea was not knowingly or intelligently made because he had not been informed of the five-year period of conditional release before he pleaded guilty, emphasizing that, to the contrary, his plea petition had indicated that a conditional release term was "not applicable" to his case. The postconviction court rejected the argument. It inferred that Uselman knew of the five-year term because he had reviewed and agreed to the sentencing worksheet, which included it, and because ...

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