This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1247
State of Minnesota,
Respondent,
vs.
Kyle Jon Wilczek,
Appellant.
Filed February 13, 2017
Affirmed
Bjorkman, Judge
Aitkin County District Court
File No. 01-CR-09-1140
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James P. Ratz, Aitkin County Attorney, Nathan T. Benusa, Assistant County Attorney,
Aitkin, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Johnson, Judge; and
Bjorkman, Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges the imposition of a five-year conditional-release term and the
revocation of his probation for felony driving while impaired (DWI). Because we conclude
that the district court properly imposed the mandatory conditional-release term and did not
abuse its discretion by revoking appellant’s probation, we affirm.
FACTS
In 2009, appellant Kyle Jon Wilczek pleaded guilty to first-degree DWI, which
carries a mandatory five-year period of conditional release upon the expiration of a
defendant’s prison term. Minn. Stat. § 169A.276 (2008). Pursuant to the plea agreement,
the state dismissed the remaining charges and recommended a guidelines sentence. At the
plea hearing, Wilczek acknowledged that he would be subject to a conditional-release
period if the district court executed his sentence. And his signed plea petition stated, in
bold type: “I understand I am subject to a five year conditional release period.” 1 The
district court accepted Wilczek’s plea, imposed a stayed 48-month sentence, and placed
Wilczek on probation in accord with the plea agreement. Wilczek’s probation conditions
required him to, among other things, remain law-abiding, keep his probation officer
apprised of his address, abstain from using alcohol and other controlled substances, inform
his probation officer of any law-enforcement contact, and cooperate with random searches
of his residence.
On July 7, 2014, Wilczek admitted he violated his probation by committing two
driving after cancellation—inimical to public safety (DAC-IPS) offenses. The district
court imposed an intermediate sanction and continued Wilczek’s probation. In February
2016, Wilczek’s probation officer filed another violation report, alleging that Wilczek had
1
The presentencing worksheet also stated that “Conditional Release Statutes Apply if
Prison Sentence is Executed: 5 years.”
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violated probation by (1) failing to tell his probation officer of a changed address within
72 hours; (2) using unauthorized chemical substances; (3) failing to remain law-abiding;
(4) failing to tell his probation officer of law-enforcement contact within 72 hours;
(5) failing to cooperate with a search of his residence; and (6) failing to follow the
instructions of probation.
Following a probation-violation hearing, the district court found clear and
convincing evidence that Wilczek violated his probation by using chemical substances,
failing to inform his probation officer within 72 hours of a law-enforcement contact, and
failing to cooperate with a search of his residence. The district court held a dispositional
hearing two weeks later, during which it found that Wilczek’s violations were intentional
and inexcusable and that any consequence other than executing his sentence “would
unduly depreciate the probation process.” Accordingly, the district court revoked
Wilczek’s probation and sentenced him to 48 months’ imprisonment to be followed by
five years of conditional release. Wilczek appeals.
DECISION
I. The district court did not err by imposing the mandatory conditional-release
term when executing Wilczek’s stayed sentence.
For the first time on appeal, Wilczek challenges the validity of his sentence. Our
supreme court has held that a defendant may challenge his underlying sentence on appeal
from an order revoking probation. State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987).
We review the legality of a sentence de novo. State v. Modtland, 695 N.W.2d 602, 605
(Minn. 2005).
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Wilczek argues that the district court erred by imposing the five-year conditional-
release term for the first time when it revoked his probation and executed his sentence.
Wilczek contends that the district court was only authorized to impose the term at the time
of sentencing. This argument is unavailing. The statutory language defeats Wilczek’s
argument: “[W]hen the court commits a person to the custody of the commissioner of
corrections under this subdivision, it shall provide that after the person has been released
from prison the commissioner shall place the person on conditional release for five years.”
Minn. Stat. § 169A.276, subd. 1(d) (emphasis added).
Moreover, caselaw recognizes a district court’s authority—and obligation—to
impose the conditional-release period under Minn. Stat. § 169A.276. See State v. Calmes,
620 N.W.2d 61, 63 (Minn. App. 2000) (“Because the conditional release term is
mandatory, a district court has jurisdiction to amend a defendant’s sentence to include a
conditional release term.”), aff’d, 632 N.W.2d 641 (Minn. 2001). In Calmes, our supreme
court affirmed the amendment of a sentence to include a conditional-release term three
years after the sentence was executed. 632 N.W.2d at 647. In rejecting Calmes’s due-
process argument, the supreme court reasoned that “citizens are presumed to know the
law,” and because the court had issued opinions that a conditional-release term is
mandatory and nonwaivable, Calmes “could not have developed a reasonable crystallized
expectation of finality in a sentence that did not include a mandatory and nonwaivable
condition.” Id. at 648.
Wilczek’s reliance on Kubrom v. State, 863 N.W.2d 88 (Minn. App. 2015), is
misplaced. Kubrom’s plea agreement included an executed, definite-term sentence but was
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silent with respect to conditional release. 863 N.W.2d at 90. As his release date
approached, the department of corrections asked the district court to amend Kubrom’s
sentence to add the five-year conditional-release term. Id. at 90-91. The district court did
so. Because modification of the sentence to include the conditional-release term
impermissibly altered Kubrom’s plea agreement, we reversed and remanded for plea
withdrawal. Id. at 94-95.
Unlike Kubrom, Wilczek did not agree to a definite-term sentence. And he knew
about the conditional-release term when he entered his guilty plea. His plea petition
expressed his understanding that he was “subject to a five year conditional release period.”
At the plea hearing, Wilczek’s attorney stated that the conditional-release period would be
imposed if Wilczek violated probation and his sentence was executed. Wilzcek
acknowledged his understanding of this fact. On this record, imposition of the conditional-
release period does not violate Wilczek’s plea agreement. See Oldenburg v. State, 763
N.W.2d 655, 659 (Minn. App. 2009) (“Because the plea agreement did not prescribe a
definite sentence, we conclude that the later addition of the conditional-release term did
not violate the plea agreement.”).
In sum, Wilczek was not committed to the commissioner of corrections until the
district court revoked his probation and executed his sentence. At that time, the district
court was authorized—and required—to impose the five-year conditional-release period as
contemplated by the plea agreement.
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II. The district court did not abuse its discretion by revoking Wilczek’s probation.
Before revoking probation, a district court “must (1) designate the specific condition
or conditions that were violated; (2) find that the violation was intentional or inexcusable;
and (3) find that need for confinement outweighs the policies favoring probation.” State v.
Austin, 295 N.W.2d 246, 250 (Minn. 1980). 2 A district court “has broad discretion in
determining if there is sufficient evidence to revoke probation and should be reversed only
if there is a clear abuse of that discretion.” Id. at 249-50. We also review a district court’s
evidentiary rulings for abuse of discretion. State v. Flores, 595 N.W.2d 860, 865 (Minn.
1999).
Wilczek argues that the district court violated his due-process right to present
mitigating evidence at the probation-violation hearing by excluding his proffered testimony
that “he did not follow his [probation officer’s] instruction to call after submitting a
[urinalysis] because another probation employee told him not to call.” Wilczek contends
the district court erroneously excluded this testimony as hearsay. We need not decide this
question because it has no bearing on the district court’s revocation decision. The district
court did not find clear and convincing evidence that Wilczek violated probation by failing
to contact his probation officer after a chemical test. Because the excluded evidence relates
to an alleged violation that the state did not prove, any evidentiary error is harmless. Minn.
R. Crim. P. 31.01 (“Any error that does not affect substantial rights must be disregarded.”).
2
Wilczek does not challenge the adequacy of the district court’s Austin findings.
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Finally, Wilczek asserts the district court denied him due process by basing its
revocation decision on conduct that was not alleged in the violation report. He contends
that the court’s reference to his prior driving-after-cancellation convictions as evidence that
“Wilczek [was] ‘prepared . . . to disregard’ his conditions of probation” violated his right
to notice and the opportunity to be heard. But Wilczek did not make a due-process
argument in the district court. As the supreme court held in Austin, a defendant who does
not raise a due-process violation at the revocation hearing forfeits the issue. 295 N.W.2d.
at 252.
Affirmed.
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