Kaiser v. State

PAGE, Justice

(dissenting).

I respectfully dissent.

I.

Because Kaiser’s sentence was induced by the promise of a sentence unauthorized by law, I believe the voluntariness of his *908plea of guilty was compromised. See State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn.2000) (stating that “ ‘[t]he voluntariness requirement insures that the guilty plea is not in response to improper pressures or inducements’ ”) (citation omitted); State v. Brown, 606 N.W.2d 670, 674 (Minn.2000) (“Where a sentence is illegal and therefore invalidly imposed, the volun-tariness of the plea is drawn into question.”). Minnesota Statutes § 243.166, subd. 2 (1998), provides:

When a person who is required to register under subdivision 1, paragraph (a), is sentenced ⅜ * *, the court shall tell the person of the duty to register under this section. The court shall require the person to read and sign a form stating that the duty of the person to register under this section has been explained. If a person required to register under subdivision 1, paragraph (a), was not notified by the court of the registration requirement at the time of sentencing or disposition, the assigned corrections agent shall notify the person of the requirements of this section. When a person who is required to register under subdivision 1, paragraph (c), is released from commitment, the treatment facility shall notify the person of the requirements of this section.

Id. Based on the statute’s repeated use of the directive “shall,” the plain language of the statute indicates clearly that sex offender registration must be included in the sentence of every sex offender covered by Minn.Stat. § 243.166, subd. 2. Therefore, like the statutory provisions requiring a conditional release term for certain sex offenders, see generally State v. Humes, 581 N.W.2d 317 (Minn.1998), the statutory provisions requiring registration of sex offenders are mandatory and nonwaivable. It is this mandatory and nonwaivable character of the requirement to register as a sex offender that calls into question the validity of guilty pleas made without mention of that requirement at the time pleas are entered. See Brown, 606 N.W.2d at 674 (addressing the mandatory character of conditional release terms).

In State v. Garcia, 582 N.W.2d 879 (Minn.1998), we recognized that sentences that fail to contain terms that the legislature has mandated are illegal. Id. at 881. Although we cannot uphold, through the remedy of specific performance, a sentence that a court had no authority to impose in the first place, we may allow withdrawal of the plea if appropriate. See Brown, 606 N.W.2d at 674. The withdrawal of a guilty plea is permissible when part of the inducement or consideration for the defendant’s guilty plea was the very absence of the mandatory and nonwaivable term. See id.; Jumping Eagle, 620 N.W.2d at 44-45.

In this case, Kaiser was promised a particular sentence, including certain conditions, in exchange for a plea of guilty to possession of pictorial representations of minors in violation of Minn.Stat. § 617.247, subd. 4 (1996). Missing from those conditions was the sex offender registration requirement of Minn.Stat. § 243.166, subd. 2. Moreover, at Kaiser’s sentencing hearing, the district court in violation of that section failed to include the sex offender registration requirement. This modification of his sentence was illegal.

Kaiser asserts that he was not informed of the registration requirement before he entered the guilty plea and that, had he known of the requirement, he would not have entered the plea. Thus, this court should not presume that Kaiser would have considered the requirement insignificant in the negotiation of his plea. See *909Jumping Eagle, 620 N.W.2d at 44 (concluding that, because the defendant in that case appeared to have considered the maximum executed sentence significant in the negotiation of his plea, the addition of a conditional release term, which would have then exceeded the upper limit of his court-accepted plea petition, violated his plea agreement).

As in Garcia, the unqualified promise that Kaiser received and consequently accepted was unauthorized by law, and Kaiser must be allowed to withdraw from the plea agreement if he so chooses. If he does not so choose, Kaiser should be permitted to continue to be bound by the original plea agreement, as amended to include sex offender registration required by law.

II.

In concluding that sex offender registration is not a direct consequence of a guilty plea, the court relies heavily on language from our decision in Alanis v. State, 583 N.W.2d 573 (Minn.1998). In doing so, the court misapplies what we said in Alanis concerning direct consequences, while at the same time misconstruing the character of the sex offender registration statute. As the court notes, Kaiser’s claim here is that his plea of guilty was not intelligent because, when he entered his plea, neither the court nor defense counsel informed him that he would have to register as a sex offender. For a guilty plea to be intelligent, a criminal defendant must be aware of the direct consequences of pleading guilty. Id. at 578. Direct consequences are those that flow definitely, immediately, and automatically from the criminal defendant’s plea of guilty. Id. Interestingly, the court concedes that the requirement that Kaiser register as a sex offender flows definitely, immediately, and automatically from his guilty plea: “We disagree with the ruling of the court of appeals that the duty to register as a predatory offender is not definite, immediate and automatic because the offender is required to register immediately, definitely and automatically upon entering a guilty plea.”

Having reached that conclusion, the court then curiously goes on to conclude that sex offender registration is not a direct consequence of Kaiser’s guilty plea because the only direct consequences are those that flow from the punishment to be imposed. That is not, however, what Alanis says. Alanis says that “[i]t makes sense that direct consequences are those which flow definitely, immediately, and automatically from the guilty plea — the maximum sentence and any fine to be imposed.” 16 583 N.W.2d at 578. The quoted statement plainly provides that direct consequences flow from the guilty plea, not the punishment. The factual detail of that statement cannot be read to limit direct consequences to the punishment to be imposed. Had it been intended, as the court now suggests, to limit what constitutes a direct consequence, there would have been no need in Alanis to go on to analyze whether deportation — being neither sentence nor fine — was a definite, immediate, and automatic consequence of Alanis’s plea of guilty. We proceeded to go through that analysis, however, because we were *910focused not on the aspects of punishment, but on whether the consequences were indeed definite, immediate, and automatic.

Sex offender registration is a direct consequence of the offender’s guilty plea if for no other reason than Minn.Stat. § 243.166, subd. 2, makes it so. As discussed above, that section makes registration mandatory in all cases without exception. It also makes clear that the requirement may not be modified. As a mandatory and non-waivable requirement of section 243.166, subdivision 2, sex offender registration becomes a direct consequence once a plea is entered, irrespective of its nonpunitive nature.

Further, the fact that the legislature has made sex offender registration mandatory and non-waivable and tied that requirement directly to the offender’s sentence makes it different in character from non-punitive consequences such as deportation, revocation of driving privileges, and loss of the right to possess a firearm, which have been held to be collateral. Those consequences are not necessarily definite, immediate, or automatic. See Alanis, 583 N.W.2d at 578-79 (concluding that deportation is not a direct consequence because, before deportation can occur, the INS must exercise discretion to commence deportation proceedings and must follow various administrative procedures); State v. Rodriguez, 590 N.W.2d 823, 825 (Minn.App.), rev. denied (Minn. May, 26 1999) (concluding that loss of the right to possess a firearm is collateral because the federal government’s decision to prosecute for felon in possession is independent of anything a state court does); State v. Washburn, 602 N.W.2d 244, 246 (Minn.App.1999) (concluding that revocation of driving privileges is collateral because such revocation depends on an action by the Minnesota Department of Public Safety). Nor do nonpunitive consequences such as deportation, revocation of driving privileges, and the loss of the right to possess a firearm require affirmative acts as sex offender registration does.

Sex offender registration is also different in character because it can have a direct impact on daily life in ways that even incarceration does not. Sex offender registration obligates the offender to inform state authorities of address changes for at least ten years and may include mandatory community notification. The court ignores the fact that community notification is mandatory for Level III offenders, Minn.Stat. § 244.052, subd. 4, subd. 4b (2000), and may be required for Level I offenders, Minn.Stat. § 243.166, subd. 7a (2000) (allowing community notification for Level I offenders who fail to register or maintain their registration as required by law). It goes without saying that community notification can take the sex offender registrant “out of the ordinary relations with humanity” by adversely affecting his or her personal and professional life, em-ployability, associations with neighbors, and choice of housing. Nathaniel Hawthorne, The Scarlet Letter 44 (Courage Books 1991) (1850); see Artway v. Attorney General of N.J., 876 F.Supp. 666, 686-87 (D.N.J.1995), aff'd in part and vacated in part, 81 F.3d 1235 (3d Cir.), reh’g denied, 83 F.3d 594 (1996) (employability and associations with neighbors); Rowe v. Burton, 884 F.Supp. 1372, 1378 (D.Alaska 1994), appeal dismissed, 85 F.3d 635 (9th Cir.1996) (personal and professional lives); State v. Myers, 260 Kan. 669, 923 P.2d 1024, 1041 (1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997); Noble v. Bd. of Parole & Post-Prison Supervision, 327 Or. 485, 964 P.2d 990, 995-96 (1998). As a result of commu*911nity notification, a sex offender registrant also may be the target of vigilantism and possible physical violence. See Noble, 964 P.2d at 995-96; see, e.g., Doe v. Pataki, 940 F.Supp. 603, 608-11 (S.D.N.Y.1996), aff'd in part, rev’d in part, 120 F.3d 1263 (2d Cir.1997), cert. denied, 522 U.S. 1122, 118 S.Ct. 1066, 140 L.Ed.2d 126 (1998); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 430-31 (1995) (Stein, J., dissenting). Therefore, although a direct consequence need not be punitive, the implications and magnitude of sex offender registration are on par with the court’s unduly narrow view of the term punishment.

Sex offender registration is a direct consequence of a plea of guilty and, as such, Kaiser should have been informed of the duty to register. As the court itself states, “If a defendant is advised of the price he must pay for his criminal conduct, his plea cannot be said to be unintelligent and cannot be withdrawn.” Because Kaiser was not advised of the price he must pay for his criminal conduct as required by Minn. Stat. § 243.166, his plea of guilty was not intelligent. Therefore, I would reverse the court of appeals and remand to the district court for further proceedings.

. Although there was no fine in Alanis, the opinion refers to a fine as a type of direct consequence because a fine was involved in Barragan v. State, 583 N.W.2d 571 (1998) (relying on Alanis), a case decided on the same day as Alanis. Barragan, 583 N.W.2d at 571, 573 n. 4. Therefore, this reference to fines cannot be interpreted as limiting the scope of what constitutes a direct consequence.