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Thong v. State

Court of Appeals of Minnesota

March 20, 2017

Peter Reat Thong, petitioner, Appellant,
v.
State of Minnesota, Respondent.

         Mower County District Court File No. 50-CR-12-3037

          Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Lori Swanson, Attorney General, St. Paul, Minnesota; and Kristen Nelsen, Mower County Attorney, Scott K. Springer, Assistant County Attorney, Austin, Minnesota (for respondent)

          Considered and decided by Hooten, Presiding Judge; Reilly, Judge; and Smith, Tracy M., Judge.

         SYLLABUS

         Minnesota Statutes section 609.14, subdivision 3(2) (2012), which provides that upon revocation of a stay of execution a district court may "order execution of the sentence previously imposed, " does not prohibit a district court from imposing a previously unpronounced conditional release period mandated by Minnesota Statutes section 169A.276, subdivision 1(d) (2012), when the district court executes a stayed sentence.

          OPINION

          HOOTEN, Judge

         In this appeal from the denial of his motion for postconviction relief, appellant argues that the postconviction court erred by concluding that the district court, when revoking appellant's probation and executing his sentence, had the authority to impose a conditional-release period not made part of his previously imposed but stayed sentence. We affirm.

         FACTS

         In December 2012, appellant Peter Reat Thong was charged by complaint with one count of first-degree driving while impaired (DWI). On May 23, 2013, Thong first entered a not guilty plea, but later that same day reviewed with his attorney and signed a petition to enter a guilty plea. Thong did not submit the plea petition to the district court at that time.

         On August 16, 2013, Thong submitted the signed plea petition to the district court and pleaded guilty under a plea agreement with the state. Thong was represented by substitute counsel at the plea hearing. The plea petition provided that Thong would serve 180 days in jail, receive credit for time served, pay a fine, cooperate with the completion of a presentence investigation (PSI) report, and return for sentencing. The plea petition stated, "I have been told by my attorney and I understand . . . [t]hat for felony driving while impaired offenses . . . a mandatory period of conditional release will follow any executed prison sentence that is imposed. Violating the terms of this conditional release may increase the time I serve in prison." The plea petition continued, "In this case, the period of conditional release is 5 years." The numeral "5" was handwritten in the plea petition.

         A PSI was completed, and it recommended that the district court stay execution of a 42-month sentence and place Thong on probation for 7 years. The PSI noted that "[s]hould [Thong] be committed to the [c]ommissioner of [c]orrections during his supervision, a five year conditional release applies to this offense, " and Thong's attorney noted at the November 2013 sentencing hearing that he had received and reviewed a copy of the PSI. The district court sentenced Thong to 42 months, but stayed execution of the sentence for 7 years. The conditional-release period was not discussed at the sentencing hearing, and the sentencing order did not address the conditional-release period.

         Approximately 14 months later, in January 2015, the district court revoked Thong's probation. The district court ordered execution of the 42-month sentence, but did not impose the mandatory conditional-release period. On that same day, the district court issued an amended warrant of commitment that included the conditional-release period. About one week later, the district court issued a probation revocation order, executing the 42-month sentence and stating that the sentence included a 5-year conditional-release period.

         Thong filed a petition for postconviction relief, arguing that he was entitled to withdraw his guilty plea or have his sentence amended to remove the conditional-release period. After an evidentiary hearing, the ...


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