author: BLATZ, Chief Justice. PAGE, Justice PAUL H. ANDERSON, Justice

text:
    STATE of Minnesota, Respondent, v. Signe Elissee PEARSON, Petitioner, Appellant.
    No. C9-99-2021.
    Supreme Court of Minnesota.
    Jan. 17, 2002.
    Michael F. Crommett, Assistant State Public Defender, Minneapolis, Mary M. McMahon, McMahon & Associates, Criminal Defense, Ltd., Roseville, for Appellants.
    Michael A. Hatch, State Attorney General, Doug Johnson, Washington County Attorney, Eric C. Thole, Assistant County Attorney, Stillwater, for Respondents.
   OPINION

BLATZ, Chief Justice.

A sentencing circle, addressing the proper sanction for an offender pursuant to a plea agreement, recommended that the district court stay adjudication of a felony theft count for wrongfully obtaining public assistance. The district court stayed adjudication, and the court of appeals reversed, holding that the reasons cited by the district court did not constitute special circumstances warranting a stay of adjudication. We hold that the district court did not abuse its discretion in ordering a stay of adjudication when the state agreed to send this matter to the sentencing circle, which recommended a stay, and reverse the decision of the court of appeals.

Pearson received approximately $2,430 in food stamps and approximately $4,080 in Aid to Families with Dependent Children (“AFDC”) benefits from Washington County Community Services (“County”) during a period including most of 1995 and the first part of 1996. In her application for these benefits, Pearson indicated that she was earning no income. In fact, from May 1995 to February 1996, Pearson worked 40 hours a week at a chiropractic clinic and was therefore ineligible to receive food stamps or AFDC. Pearson did not disclose this employment or income to the County.

The state charged Pearson with two felony theft counts: one count of wrongfully obtaining public assistance in violation of MinmStat. § 256.98, subd. 1 (1994), and one count of wrongfully obtaining food stamps in violation of Minn.Stat. § 393.07, subd. 10(c)(1) (1994). Appellant and the state negotiated a plea agreement, under which the case would be referred to a sentencing circle prior to sentencing by the court. The parties did not condition the agreement on any understanding regarding what the circle would recommend or on the court’s ultimate disposition of the case.

At the plea hearing, Pearson pleaded guilty to the wrongfully obtaining public assistance charge in return for dismissal of the wrongfully obtaining food stamps charge. The district court accepted Pearson’s guilty plea and, pursuant to the terms of the plea agreement and Minn. Stat. § 611A.775 (2000), assigned her case to a sentencing circle to determine what her sentence would involve. The district court noted that Pearson would return to court for the imposition of sentence. Before the plea hearing ended, the prosecutor sought to. clarify his expectation that restitution would be awarded on both charged counts, and the court told the prosecutor that the state’s interests were represented in the circle process. The prosecutor stated, “Right. I understand that.”

The sentencing circle was conducted by the Hastings Restorative Justice Council and met five times. The County, as the victim of the offenses, was notified of the meetings but declined to attend. The Washington County Attorney’s Office did not receive specific notice as to when the meetings were going to take place and did not attend. The district court judge assigned to Pearson’s case attended the final meeting.

After 14 hours of meetings, the sentencing circle recommended that Pearson receive a stay of adjudication, pay restitution, obtain credit counseling, perform community service, participate in support/follow up circles, have no same or similar offenses, remain law abiding, and appear in court for sentencing. The sentencing circle’s rationale supporting the stay of adjudication was that Pearson was not a risk to public safety by not having a felony record, she had no pattern of breaking the law, a felony record would impede her ability to obtain future employment, a traumatic family event was a contributing factor in the offense, and Pearson’s case would likely have been diverted from felony prosecution had she been able to pay down the amount of restitution owed.

At the sentencing hearing, the state objected to the stay of adjudication, arguing that State v. Krotzer, 548 N.W.2d 252 (Minn.1996), prohibited a stay. The state also complained that it was unable to participate in the sentencing circle because it did not receive notice of the circle’s meetings. Over the state’s objection, the district court adopted the sentencing circle’s recommendation in its entirety, vacated Pearson’s plea, and sentenced her according to the circle’s recommendation. The court relied on the same reasons the sentencing circle used to support its recommendation of a stay of adjudication.

On appeal, the court of appeals concluded that section 611A.775 does not authorize a restorative justice program to “assign a sanction that would be an improper sentence if imposed by the district court.” State v. Pearson, 609 N.W.2d 630, 633 (Minn.App.2000). Noting that Krotzer and State v. Foss, 556 N.W.2d 540 (Minn.1996), allow a district court to stay adjudication only if special circumstances exist, the court of appeals concluded that no special circumstances were present in this case and reversed and remanded for adjudication and sentencing. Pearson, 609 N.W.2d at 633-34.

The issue presented by this appeal is whether the district court had the authority under Minn.Stat. § 611A.775 to stay adjudication of Pearson’s guilt based on the sentencing circle’s recommendation after the state agreed to send the case to the circle. A district court’s sentencing decision will not be disturbed absent an abuse of discretion. State v. Schmit, 601 N.W.2d 896, 896 (Minn.1999).

Minnesota Statutes § 611A.775 provides:

A community-based organization, in collaboration with a local governmental unit, may establish a restorative justice program. A restorative justice program is a program that provides forums where certain individuals charged with or petitioned for having committed an offense meet with the victim, if appropriate; the victim’s family members or other supportive persons, if appropriate; the offender’s family members or other supportive persons, if appropriate; a law enforcement official or prosecutor when appropriate; other criminal justice system professionals when appropriate; and members of the community, in order to:
(1) discuss the impact of the offense on the victim and the community;
(2) provide support to the victim and methods for reintegrating the victim into community life;
(3) assign an appropriate sanction to the offender; and
(4) provide methods for reintegrating the offender into community life.

(Emphasis added).

On its face, section 611A.775 reflects a broad healing purpose to restorative justice programs, both for victims and offenders. Bringing victims and offenders together provides an opportunity for offenders to better understand the impact of their conduct, and gives victims a clear voice in the resolution of the offense. On a more concrete level, the statute explicitly gives restorative justice programs the authority to assign appropriate sanctions to an offender. However, the statute fails to address how the restorative justice pro-grain’s assigned sanction operates in light of the judiciary’s role in adjudicating and sentencing. While the statute fails to provide any guidance as to what constitutes an “appropriate sanction” or who makes the determination as to whether the sanction assigned in a given case is “appropriate,” there is also no indication in the statute that the legislature intended that courts abdicate their sentencing authority.

However, we need not attempt in this case to answer the questions left open by the legislature in the restorative justice statute. The parties in this case each agreed, pursuant to the terms of a plea agreement, to refer the case to a sentencing circle prior to sentencing by the court. The state did not qualify its consent to send the matter to the circle. Specifically, the state did not condition its consent on the understanding that the circle would recommend adjudication of the offense, or that the court would ultimately adjudicate the offense. In fact, when the prosecutor sought to clarify, after his consent to refer the matter to a sentencing circle, his expectation that restitution would be awarded on both charged counts, the court told the prosecutor that the state’s interests were represented in the circle process. The prosecutor stated, “Right. I understand that.” Thus, without further objection or discussion, the state agreed that there were no up-front limitations on the authority of the sentencing circle and that to protect its interest in the sentencing result the state needed to work through the sentencing circle.

While we note that there were no up-front limitations imposed on the sentencing circle in this case, we need not decide whether a court would be bound by any conditions imposed on the restorative justice program by the parties. Because the parties apparently did not agree to any limitations on the sentencing circle’s authority in this case, we can leave for another day whether a party can impose limitations on the operation of a restorative justice program. It is enough, for purposes of this case, to recognize that the state agreed to refer the case to a sentencing circle and acknowledged that its after-the-fact attempt to limit the discretion of the circle on restitution was improper in light of the agreement reached.

Specifically with respect to the disposition in this case and notwithstanding Krot-zer and Foss, Minn.Stat. § 609.095(b) (2000) allows a stay of adjudication when the parties agree to it. In a typical case, that agreement might arise as part of the plea negotiations or before the court imposes a sentence. A case referred to a sentencing circle is not a typical case, however. While the restorative justice statute is written broadly to encompass a wide range of processes, it specifically allows a restorative justice program to “assign an appropriate sanction to the offender.” Minn.Stat. § 611A.775. Each sentencing circle involves the participation of community members who voluntarily come together to reach a consensus on how a case can best be resolved with the goal of supporting the victim and reintegrating the victim and offender into community life. The work of a circle is often arduous, emotional and time-consuming. Necessarily, then, any limitation on the agreement to send a case to a restorative justice program, if allowable at all, must be made up front, before the laborious process of reconciliation and resolution takes place. To allow an after-the-fact objection to the authority of the sentencing circle would eviscerate the purposes of the restorative justice program.

On this record, the court did not abuse its discretion in staying adjudication of the offense. Questions remain regarding the scope of the authority of restorative justice programs, and the respective roles of the program and the court in sentencing. However, the legislature has an opportunity, perhaps in light of the ruling in this case, to clarify those roles. We reverse the holding of the court of appeals and reinstate the disposition imposed by the district court.

Reversed.

PAGE and PAUL H. ANDERSON, JJ., concurring Specially.

PAGE, Justice

(concurring specially).

I agree that the district court’s decision to adopt the recommendation of the sentencing circle should be affirmed, but would do so not because the state agreed to be bound by the circle recommendation, but because the restorative justice statute authorizes that result. While the statute admits of some ambiguity, I conclude that, by applying established principles of statutory construction, the legislature intended that the recommendations of restorative justice programs be given effect.

The statute explicitly gives restorative justice programs the authority to assign appropriate sanctions to an offender. However, as the majority recognizes, the statute fails to identify what constitutes an appropriate sanction, who decides appropriateness, and how that determination operates in light of the judiciary’s role in sentencing. To that extent, the statute is ambiguous. However, while section 611A.775 is ambiguous in the logistics of how the program is to operate, the purpose of the legislation is clear and provides a basis to answer the question presented in this case: whether the district court had the authority under Minn.Stat. § 611A.775 to stay adjudication of Pearson’s guilt based on the sentencing circle’s recommendation. We can look to our rules of statutory construction to determine the legislature’s intent in enacting the statute. See generally Minn.Stat. § 645.16 (2000) (providing that legislative intent may be determined by looking to object to be attained by the law’s enactment, consequences of a particular interpretation, and contemporaneous legislative history).

Section 611A.775 expressly states the objectives the legislature sought to achieve. One of these objectives was to have restorative justice programs assign sanctions to offenders. Another objective was to have restorative justice programs “provide methods for reintegrating the offender into community life.” Minn.Stat. § 611A.775(4) (2000). This provision, which is clearly directed at reducing recidivism by promoting rehabilitation and reconciliation between offenders and community members, including victims, could not operate unless the restorative justice programs are given some authority for determining what constitutes an “appropriate sanction .” That is, offenders, victims, and community members would have little incentive to participate in the often time-consuming, difficult, and painful process of reconciliation and integration if the sentence can be only that provided under the Minnesota Sentencing Guidelines. To hold otherwise would render meaningless the hours of effort and discussion aimed at reintegrating offenders and victims into community life, as the statute intends. See Minn.Stat. § 645.16(6) (2000) (providing that courts may consider “[t]he consequences of a particular interpretation” in ascertaining legislative intent).

It appears the legislature’s central purpose in enacting this groundbreaking legislation was to provide communities with an opportunity to actively and meaningfully participate in the criminal justice process. It would be unreasonable to conclude that the legislature intended that the array of sanctions available to communities in this novel alternative process simply mirror those traditionally available to the district courts. Minn.Stat. § 645.17(1) (2000) (in ascertaining legislative intent, courts may presume that “[t]he legislature does not intend a result that is absurd, impossible of execution, or unreasonable”). In other words, why would circle participants invest 14 hours, as in this case, to do what often takes a court less than a half hour to accomplish? To avoid an absurd result, I can only conclude that the legislature intended that community members reach consensus as to the appropriate sanction, within the framework of the restorative justice statute, and that the group’s consensus be then communicated to the court.

This interpretation finds support in section 611A.775’s contemporaneous legislative history, another factor enumerated in Minn.Stat. § 645.16. The restorative justice planner for the Minnesota Department of Corrections stated during a senate committee meeting that the statute was intentionally drafted to give restorative justice programs “lots of possibilities, lots of flexibility.” Hearing on S.F.2090, Sen. Crime Prevention Comm., 80th Minn. Leg., Jan. 26, 1998 (audio tape) (comments of Kay Pranis, Restorative Justice Planner for the Minnesota Department of Corrections). Allowing communities to determine for themselves what constitutes an appropriate sanction is consistent with the goal of flexibility.

The state argues that, to allow a sentencing circle to assign a sentence allows “a group of people off the street * * * more power than our judges,” and that no county attorney will agree to send a case to a sentencing circle after such a ruling. The legislative history suggests, however, that the legislature did not contemplate that the court would completely abdicate its sentencing authority. A community justice program coordinator told legislators that circle sentencing was a process by which people in the community “set a sentence under the guidance of a judge and county attorneys.” Id. (comments of Carolyn McLeod, Community Justice Program Coordinator for Washington County Court Services); see also United States Dep’t of Justice, Restorative Justice Fact Sheet (1997) (“A sentencing circle is a community-directed process, conducted in partnership with the criminal justice system, to develop consensus on an appropriate sentencing plan that addresses the concerns of all interested parties.”); Kay Pranis, Restoring Community: The Process of Circle Sentencing (presented on June 6, 1997, at Justice Without Violence: Views from Peacemaking Criminology and Restorative Justice) (same).

Certainly a judge or members of the law enforcement community participating in ¿ restorative justice program can inform the sentencing circle participants of the presumptive sentence to which an offender is subject, thereby giving the circle participants some guidance in making a sanction recommendation. Indeed, the sentencing circle can incorporate the values of rationality and consistency in sentencing in its recommendation to the court. See Minnesota Sentencing Guidelines I. Consideration of the presumptive sentence would serve to fulfill the legislature’s dual goals of facilitating restorative justice programs and achieving rational and consistent sentencing standards.

Therefore, to give effect to legislative intent, I consider restorative justice programs to be an adjunct to, rather than a replacement of, the sentencing authority of the district court.

The state claims that the particular sentence imposed here, a stay of adjudication, is an illegal sentence. The state correctly notes that the inherent judicial authority to stay adjudication of an offense should be “relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor’s clear abuse of discretion in the exercise of the charging function.” State v. Foss, 556 N.W.2d 540, 541 (Minn.1996). The state further notes that there has not even been an allegation of, much less an actual, abuse of discretion in the charging function in this case. Therefore, the state concludes, the district court had no authority on its own to impose a stay of adjudication here.

The state next asserts that sentencing circles have no authority to assign a sanction that a district court could not impose as a sentence. The state, however, does not offer an explanation as to why a sentencing circle lacks authority to impose a stay of adjudication. Citing to State v. Krotzer, 548 N.W.2d 252 (Minn.1996), and Foss, the state simply asserts that “[t]here are no statutory or constitutional provisions granting the Sentencing Circle the power to be above the law.” This assertion seems to ignore the fact that “the law” now includes restorative justice programs. Moreover, Minn.Stat. § 609.095(b) (2000) allows the parties to agree to a stay of adjudication, and Krotzer and Foss recognize that stays of adjudication may be appropriate in particular circumstances.

The district court judge’s adoption of a sentencing circle’s sanction recommendation is reviewed for abuse of discretion. When the court’s rationale for the sanction, viewed in light of the facts surrounding the offense, do not support the sanction actually imposed or when the sanction recommended and imposed is so extreme as to be inappropriate, the appellate court should not hesitate to reverse and remand for resentencing, regardless of the involvement of a sentencing circle. In this case, the sentencing circle identified several reasons why a stay of adjudication was in the community’s best interest. The court adopted those reasons as a basis for following the recommendation of the sentencing circle. I conclude that those reasons are supported by the record and are in keeping with the legislature’s purpose in enacting section 611A.775. While the district court judge could not have, in the absence of a recommendation from the sentencing circle, stayed adjudication of Pearson’s offense based on those reasons, see Foss, 556 N.W.2d at 541; Krotzer, 548 N.W.2d at 254, the judge must be allowed to do so in this case'in order to recognize and give effect to the unique function and nature of restorative justice programs.

Given the objectives to be attained by the enactment of section 611A.775, the statute’s contemporaneous legislative history, the parties’ actions in this case, and the possible limiting effect of a contrary interpretation, I conclude that the district court judge did not abuse his discretion in following the circle’s recommendation when the reasons for the recommendation support the conclusion that a stay of adjudication is in the community’s best interest. I would reverse on that basis.

PAUL H. ANDERSON, Justice

(concurring specially).

I join in the special concurrence of Justice Page.

      . The parties do not dispute that the sentencing circle used in this case is a restorative justice program under the statute.

      . In addition, we reject the state’s argument that because it lacked notice of the sentencing circle meetings, the state should not be bound by its result. The lack of participation by the County and the prosecutor is troubling to the extent that the district court judge participated in a process in which only one of two parties before the court was present. However, the County received notice of the meetings, and apparently chose not to attend and not to ask the prosecutor to attend. Moreover, the statute does not make attendance by the prosecutor mandatory, as it provides for participation by the prosecutor "when appropriate.” Minn.Stat. § 611A.775. Given that the prosecutor in this case had clear notice that if he wanted a particular result at sentencing he was to participate in the circle, and given the absence of a clear requirement in the statute that the prosecutor participate in the process, we cannot conclude on this record that the state's lack of participation negates the sentencing circle recommendation.

      . Thus, I would reject Pearson's claim made at her sentencing hearing that the case was taken out of the criminal justice system once referred to the restorative justice program.

      . Available at http://ssw .che.urnn.edu/rjp/re-sources/Documents/USDoJ97A.PDF.

      . Available at http://www .corr.state.mn.us/or-ganization/commjuv/rjcircle.htm.

      . At oral argument, the state argued that section 611A.775, although broadly written, must be reined in. That, however, is the responsibility of the legislature, not this court. Regardless of how we believe statutes should be written, we are bound to "take the statutes as we find them.” McNeice v. City of Minneapolis, 250 Minn. 142, 147, 84 N.W.2d 232, 236 (1957). Our role is simply to interpret the statutory language, not to "in effect rewrite a statute so as to accomplish a result which might be desirable and at the same time conflict with the expressed will of the legislature.” Id. at 147, 84 N.W.2d at 236-37.

      .I would reject the state’s assertion that permitting sentencing circles to assign a sanction that a district court lacks the authority to impose on its own could result in an unjustified triple upward sentencing departure or, in the extreme, death by lethal injection.


source: Caselaw Access Project

author: G. BARRY ANDERSON, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. John William HENTHORNE, Appellant.
    No. C5-01-770.
    Court of Appeals of Minnesota.
    Jan. 8, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant Dakota County Attorney, Hastings, MN, for respondent.
    John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, Marie Wolf, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge, ANDERSON, Judge, and FOLEY, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

G. BARRY ANDERSON, Judge.

Appellant pleaded guilty to two separate counts of criminal sexual conduct. The mandatory ten-year conditional-release term was never mentioned to appellant as a condition of his guilty plea. He was placed on probation, but later violated probation. The district court, as a result of the probation violation, several years after appellant’s guilty plea, added the conditional-release term to appellant’s sentence. The district court denied appellant’s motion to withdraw his guilty plea. We reverse.

FACTS

On July 21, 1995, appellant returned home after having a few drinks with his friends. Appellant went to the bedroom of his daughter, who was asleep in bed. His daughter’s cousin was also asleep in the same bedroom. Both girls stated that appellant sexually molested them that evening. Appellant ultimately pleaded guilty to criminal sexual conduct in the second degree (Minn.Stat. § 609.343, subd. 1(g) (1994)) and attempted criminal sexual conduct in the fourth degree (Minn.Stat. §§ 609.345, subd. 1(d), 609.17, subd. 1 (1994)). The district court imposed two consecutive 36-month stayed sentences. The court ordered appellant to serve two consecutive 360-day jail terms, followed by a 90-day term for his violation of probation on an unrelated sentence. Finally, the district court placed appellant on probation for a term of 3 to 10 years for each of the two counts.

Approximately five years later, the district court, after determining appellant had violated his probation, revoked the stay and executed the 72-month aggregate sentence. Although not part of the original plea agreement, the district court also imposed the mandatory ten-year conditional-release term in addition to the 72-month executed sentence.

Appellant then petitioned the district court to allow withdrawal of his guilty plea. The district court denied the request, and appellant now challenges the district court’s addition of the conditional-release term to the executed sentence.

ISSUES

I. Did the district court abuse its discretion by denying appellant’s motion to withdraw his guilty plea after the district court had revoked appellant’s probation and added the ten-year mandatory conditional-release period required by Minn.Stat. § 609.109, subd. 7 (2000), to appellant’s 72-month executed sentence?

II. Is the conditional-release term a collateral consequence of appellant’s guilty plea?

ANALYSIS

I.

We will reverse a district court’s determination of whether to permit withdrawal of a guilty plea only if the district court abused its discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn.1998). The supreme court recently stated:

A valid guilty plea must be accurate, voluntary, and intelligent. See Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998); see also Minn. R.Crim. P. 15.05, subd. 1 (stating court shall allow defendant to withdraw guilty plea if necessary to correct manifest injustice). “The voluntariness requirement insures that the guilty plea is not in response to improper pressures or inducements.” Alanis, 583 N.W.2d at 577. Inducement of a guilty plea by promises that cannot be fulfilled invalidates the plea; possible remedies include requiring specific performance of the agreement, altering the sentence, or allowing the plea to be withdrawn. See State v. Brown, 606 N.W.2d 670, 674 (Minn.2000); [State v.] Garcia, 582 N.W.2d at 882.

State v. Jumping Eagle, 620 N.W.2d 42, 43 (Minn.2000).

A conviction for certain crimes carries with it a conditional-release term even after release from a prison sentence. Minn.Stat. § 609.109, subd. 7(a) (2000), provides for a ten-year conditional-release term:

If the person was convicted for [a criminal sexual conduct violation,] a second or subsequent time, or sentenced under subdivision 6 to a mandatory departure, the person shall be placed on conditional release for ten years, minus the time the person served on supervised release.

Appellant’s original plea agreement and sentence did not include the ten-year mandatory conditional-release term. See Minn.Stat. § 609.109, subd. 7(a).

The supreme court has expressly held that a conditional-release term for the statutorily enumerated offenses is mandatory and nonwaivable. State v. Humes, 681 N.W.2d 317, 320-21 (Minn.1998).

Here, the district court imposed the conditional-release term at the same time it executed appellant’s previously stayed 72-month sentence.

If a defendant is given an unqualified promise regarding a sentence that does not include a conditional-release term, and the court later adds the conditional-release term, the defendant “must be allowed to withdraw from the plea agreement if he so chooses.” State v. Garcia, 682 N.W.2d 879, 882 (Minn.1998). Nowhere in the record of appellant’s original plea did the district court or the prosecution mention the ten-year conditional-release term.

The supreme court recently addressed issues surrounding the withdrawal of guilty pleas due to the subsequent imposition of mandatory conditional-release terms in Jumping Eagle, Brown, and Garcia.

Respondent argues that Brown should control in this case. But the circumstances here are radically different from those in Brown. In Brown, the sentence received by the defendant after the conditional-release term was added was less than the sentence duration bargained for under one of the plea contingencies. See Brown, 606 N.W.2d at 675. The supreme court held that because Brown knew the consequence of his plea could be a maximum of 172 months of incarceration, the addition of the 60-month conditional-release term to his sentence, which increased his total possible term of incarceration to 146 months, did not mandate allowing Brown to withdraw his plea. Id. at n. 6. In other words, Brown’s total possible period of incarceration, even after adding the conditional-release term, could never be above the maximum term contemplated when he entered his plea.

In Jumping Eagle, the defendant entered into a plea agreement that contemplated a stayed sentence, but later violated probation. Jumping Eagle, 620 N.W.2d at 43. The supreme court held that the conditional-release term could not be added at the probation-revocation hearing without allowing the defendant to withdraw his guilty plea because the resulting sentence “exceed[ed] the upper limit of his court-accepted plea petition.” Id. at 44.

Jumping Eagle is dispositive in the present case. The district court sentenced appellant to a total term of 75 months (72 months plus 90 days for his probation violation from an earlier assault conviction). He served two years in local jails before placement on probation. At his probation revocation hearing, the 72-month sentence was executed. By adding the ten-year conditional-release term to appellant’s sentence, appellant is subject to the potential of 120 months of incarceration in addition to his executed 72-month sentence. This total potential period of incarceration far exceeds appellant’s initial 75-month stayed sentence. Just as in Jumping Eagle, this resulting sentence violates appellant’s original plea agreement. Therefore, appellant must be allowed to withdraw his plea.

Finally, Garcia also supports appellant’s argument that he should be able to withdraw his guilty plea. In Garcia the parties neglected to add the mandatory conditional-release term to Garcia’s sentence. Garcia, 582 N.W.2d at 880-81. Garcia argued that the prosecution should be held to the plea agreement’s stated 81-month sentence. Id. at 881. The supreme court held that Garcia had a choice: he could withdraw his guilty plea or consent to be bound by the plea in addition the ten-year conditional release term. Id. at 882. But the supreme court held that Garcia could not get specific performance of his original plea agreement, because the law did not authorize it in the first place. Id. at 881-82. Because Garcia allows withdrawal of a plea, it also supports our conclusion that appellant should be allowed to withdraw his guilty plea.

II.

Respondent argues that the imposition of the conditional-release term is a collateral consequence of a guilty plea. Direct consequences are those that flow definitely, immediately, and automatically from a guilty plea, namely, the maximum sentence to be imposed and the amount of any fine. All other consequences are collateral. Alanis, 583 N.W.2d at 578. But ignorance of a collateral consequence does not entitle a defendant to withdraw a guilty plea. See Kim v. State, 434 N.W.2d 263, 266-67 (Minn.1989).

Minnesota courts have held that deportation is a collateral consequence of a guilty plea, Alanis, 583 N.W.2d at 578, as is revocation of driving privileges, State v. Washburn, 602 N.W.2d 244, 246 (Minn.App.1999), and the loss of the right to possess a firearm, State v. Rodriguez, 590 N.W.2d 823, 825 (Minn.App.1999), review denied (Minn. May 26, 1999).

The supreme court has not directly addressed whether imposition of a conditional-release term is a direct or collateral consequence of a guilty plea. But because the supreme court has clearly stated that the maximum sentence is a direct consequence, it follows that imposition of a conditional-release term is also a direct consequence. See Alanis, 583 N.W.2d at 578. This consequence is direct because it affects the maximum amount of prison time appellant may have to serve. Respondent’s argument that the conditional-release term is a collateral consequence of a guilty plea therefore fails.

DECISION

The district court abused its discretion when it refused to allow appellant to withdraw his guilty plea. Because the subsequent imposition of the ten-year mandatory conditional-release term causes appellant’s sentence to exceed the maximum sentence contemplated by his original plea agreement, appellant must be allowed to withdraw his guilty plea. Furthermore, the district court erred when it found that the conditional-release term was a collateral consequence of appellant’s guilty plea.

Reversed.

      . The supreme court has held:
      Conditional release is a period of supervision by the Commissioner of Corrections. The commissioner may revoke the conditional release and order the person to serve the remaining portion of the release term in prison if the terms of the release, crafted by the commissioner, are violated. See Minn. Stat. § 609.109, subd. 7(b) (1998).

        Jumping Eagle, 620 N.W.2d at 43 n. 1.

      . Minn.Stat. § 609.109, subd. 7(a), was reco-dified from Minn.Stat. § 609.346, subd. 5(a) in 1995, but remains, in substance, unchanged. See Minn.Stat. § 609.346, subd. 5(a) (1994).

      . Appellant states that he is not subject to a ten-year conditional release term because his prior sex-related conviction is from Wisconsin. But a Minnesota court may use a conviction from a foreign jurisdiction if that conviction was based upon a substantively similar statute. See State v. Combs, 504 N.W.2d 248, 250-51 (Minn.App.1993), review denied (Minn. Sept. 21, 1993). Therefore, the district court's imposition of a conditional-release term under Minn.Stat. § 609.109, recognizing appellant’s Wisconsin conviction, was proper.

      . Respondent argues that an unpublished decision, State v. Bettinger, No. C1-99-1445, 2001 WL 267433 (Minn.App.2001), supports the argument that appellant should not be allowed to withdraw his plea. Bettinger is distinguishable on several grounds. First, there was no duration mentioned in Betting-er's plea agreement. Id. at *3. Second, the 21-month presumptive sentence imposed at sentencing was not part of the plea agreement and could not have been known because the pre-sentence investigation had not even been prepared at the time the plea was entered. Id. Finally, it is clear that Bettinger was only pleading guilty to avoid prison. Id.


author: DANIEL F. FOLEY, Judge.

text:
    STATE of Minnesota, Respondent, v. Kerry Dean STEVENSON, Appellant.
    No. C8-01-505.
    Court of Appeals of Minnesota.
    Jan. 8, 2002.

      Mike Hatch, Attorney General, St. Paul, MN; and Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, MN, for respondent.
    John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, Minneapolis, MN; and Timothy Mulrooney, Henson & Efron, P.A., Minneapolis, MN, for appellant.
    Considered and decided by WILLIS, Presiding Judge, ANDERSON, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge.

Appellant argues that it is impossible to attempt the crime of fifth-degree criminal sexual conduct because fifth-degree criminal sexual conduct is an unintentional crime, while any attempt crime requires specific intent. In addition, appellant argues that there is insufficient evidence to support his convictions. Because we hold that fifth-degree criminal sexual conduct is a specific intent crime and because we conclude there was sufficient evidence to convict appellant, we affirm.

FACTS

Appellant Kerry Dean Stevenson was convicted of one count of attempted criminal sexual conduct in the fifth degree in violation of Minn.Stat. § 609.3451, subds. 1(2) and 3 (2000), and one count of inde-' cent exposure in violation of Minn.Stat. § 617.23, subd. 2(2) (2000).

On July 23, 2000, appellant was sitting in his pickup truck in a public parking lot when a witness walked past the vehicle and observed appellant masturbating. Appellant’s vehicle was parked in a handicapped parking space next to a sidewalk near a playground adjacent to a public beach area.

The state’s only witness, Abrían Carpenter, is 6'2" and was 28 years old at the time of the incident. Carpenter had occasion to peer into the window of appellant’s vehicle when he crossed the parking lot on his way back to the beách after purchasing food from a nearby building. He was alerted to appellant’s vehicle because it was parked in a handicapped parking space without an identifying handicap marker. According to the witness’s statements, Carpenter “noticed the guy’s penis in his hand and movement that was familiar to me.” Carpenter reported his observations to a lifeguard, who in turn called the police. Before the police arrived, appellant moved his vehicle to a different parking space, and walked to the beach area.

Following an investigation, during which appellant made no statement or admissions of any kind to the police, he was charged with one count of criminal sexual conduct in the fifth degree and one count of indecent exposure.

Appellant waived his right to a jury trial and neither party called any witnesses. Following a “paper trial,” the district court found that the state failed to prove that the masturbation occurred in the presence of a minor, an element required by the criminal sexual conduct statute. Instead, the court found that the state proved an attempt by appellant to commit the crime.

The district court found that (1) appellant was in fact masturbating; (2) he was aware of minors playing in front of his vehicle; and (3) an adult walked past appellant’s vehicle and observed him masturbating. The court then stated, “the fact that a 13- or 14-year-old did not walk past and see into the car still makes it sufficient, a substantial step towards the completion of the act.” The court also found appellant guilty of indecent exposure. Appellant was sentenced to sixteen months and ordered to pay a $1,000 fine. This appeal followed.

ISSUES

1. Is fifth-degree criminal sexual conduct a specific intent crime that a defendant may be convicted of attempting to commit?

2. Was there sufficient evidence for the district court to convict appellant of attempted fifth-degree criminal sexual corn duct?

3.Was there sufficient evidence for the district court to convict appellant of indecent exposure?

ANALYSIS

I.

Appellant argues that it is impossible to be guilty of attempted fifth-degree criminal sexual conduct because fifth-degree criminal sexual conduct requires proof of a reckless or negligent state of mind and any attempt crime requires a specific intent to commit the underlying crime. Appellant’s theory is that since it is impossible to intend to commit a crime based in recklessness or negligence, an attempt charge of fifth-degree criminal sexual conduct is a legal contradiction. See State v. Zupetz, 322 N.W.2d 730, 730 (Minn.1982) (holding that a defendant cannot be convicted of attempting to commit an offense for which the mens rea element requires mere recklessness or negligence rather than specific intent).

The interpretation of a statute is a question of law subject to de novo review on appeal. State v. Lindholm, 557 N.W.2d 601, 602 (Minn.App.1996), review denied (Minn. Feb. 26, 1997). An analysis of a criminal statute must begin with a careful and close examination of the statutory language with reference to the tools of statutory construction provided by the legislature. State v. Orsello, 554 N.W.2d 70, 74 (Minn.1996). Such a review is undertaken to ascertain and effectuate legislative intent. See Minn.Stat. § 645.16 (2000) (establishing that legislative intent controls in construing statutes).

Fifth-degree criminal sexual conduct is defined as engaging

in masturbation or lewd exhibition of the genitals in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.

Minn.Stat. § 609.3451, subd. 1(2) (2000). Appellant argues that the additional mens rea needed to prove the “knowing or having reason to know” element of the crime is that of recklessness and negligence. That is to say, if a defendant knows there are minors present, but acts anyway, then he is reckless; but if he merely has reason to know minors are present, but acts anyway, then he is negligent. Under appellant’s theory, the statute criminalizes conduct involving reckless disregard for the fact that a minor will see the act or negligent failure to recognize such a risk, thereby making the completed crime an unintentional act that has no specific intent element. See State v. Schmitz, 559 N.W.2d 701, 704 (Minn.App.1997) (stating that neither negligence nor recklessness includes specific intent, as required for the crime of attempt), review denied (Minn. Apr. 15, 1997).

The state argues that the statutory language makes the crime one of specific intent, requiring knowledge that minors are present. Therefore, under its analysis, one can both logically and legally attempt the offense.

When a court seeks to interpret a criminal statute to determine the level of intent required for culpability under the statute, the court must first look to the statutory definitions found in Minn.Stat. § 609.02, subd. 9 (2000). Orsello, 554 N.W.2d at 73. That statute provides in relevant part:

Wdien criminal intent is an element of a crime in this chapter, such intent is indicated by the term “intentionally,” the phrase “with intent to,” the phrase “with intent that,” or some form of the verbs “know” or “believe.”
(2) “Know” requires only that the actor believes that the specified fact exists.

Minn.Stat. § 609.02, subd. 9(1), (2) (2000). The state argues that the legislature’s use of the word “know” in the statute is confirmation that an element of specific intent is required. See State v. Mullen, 577 N.W.2d 505, 510 (Minn.1998). In Mullen, the supreme court in discussing Orsello, noted that the statute at issue in that case did not have the requisite language referencing specific intent from MinmStat. § 609.02, such as “intentionally,” “with intent to,” or “know.” Id.

Here, the legislature used the criminal intent language of Minn.Stat. § 609.02 to define the crime of fifth-degree criminal sexual conduct; namely, forms of the verb “know.” We do not believe the legislature’s intent to make specific intent an element of the offense could be more plain. Therefore, we conclude, as a matter of law, that criminal sexual conduct in the fifth degree is a crime that a defendant can legally be convicted of attempting to commit.

II.

Appellant next contends that the evidence is insufficient to support his conviction of attempted fifth-degree criminal sexual conduct because no minors actually observed him masturbating in his vehicle. This fact is undisputed. In fact, the district court found that the state failed to prove that the masturbation occurred in the presence of a minor, but that appellant’s acts constituted a substantial step towards that result.

In reviewing a claim of insufficient evidence, this court must determine whether the evidence, when viewed in the light most favorable to the verdict, is sufficient to allow the factfinder to reach the verdict that it did. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The standard of review is the same for a bench trial as it is for a jury trial. State v. Davis, 540 N.W.2d 88, 90 (Minn.App.1995), review denied (Minn. Jan. 31, 1996).

Appellant’s underlying premise is that the statute is ambiguous. Appellant contends that the language, “in the presence of,” is capable of two meanings. Namely, it could mean “in proximity” of a minor or “in view” of a minor.

In law it is probable that different conceptions of “presence” will exist for different purposes. London v. Maryland Cas. Co., 210 Minn. 581, 584, 299 N.W. 193, 194 (1941) (noting that what constitutes presence of officer at commission of crime, for purposes of authorizing arrest without warrant, likely to be wholly dissimilar from that presence required of attesting witnesses to a will). Compare State v. Pluth, 157 Minn. 145, 151, 195 N.W. 789, 791 (1923) (holding that a crime is committed “in the presence of’ an officer only if the acts constituting the offense become known to the officer through his sense of sight or through other senses), with State v. Bonn, 412 N.W.2d 28, 29 (Minn.App.1987), review denied (Minn. Oct. 21, 1987) (adopting advisory committee’s comments that the phrase “in the presence of another” with respect to robbery statutes encompasses circumstances where property is taken from a room while the victim was in a nearby room). There is no Minnesota decision defining “in the presence of a minor” for purposes of Minn.Stat. § 609.3451.

We are mindful that any ambiguity in a criminal statute must be resolved in favor of lenity. State v. Niska, 514 N.W.2d 260, 265 (Minn.1994). The “rule of lenity” holds that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity toward the defendant. Orsello, 554 N.W.2d at 74 (citations omitted).

We conclude that the legislative purpose of the “in the presence of a minor” language is to protect children against the consequences of observing the conduct and that a defendant may not be convicted of the completed crime of fifth-degree criminal sexual conduct by merely acting in the proximity of children.

Here, because no minor observed appellant masturbating, the district court found appellant guilty of a “lesser included” attempted fifth-degree criminal sexual conduct. Conviction for an attempt offense requires proof that the actor did the act with “intent to commit that particular offense.” State v. Zupetz, 322 N.W.2d 730, 734 (Minn.1982) (quotations omitted). That is to say, the state must prove that appellant intended to have children view him masturbating and that he took a substantial step toward completion of that act. See Minn.Stat. § 609.17, subd. 1 .(2000); see also State v. Meemken, 597 N.W.2d 582, 586 (Minn.App.1999), review denied (Minn. Sept. 28, 1999).

Appellant argues that only circumstantial evidence exists to find that he intended that a minor observe his conduct and that, by remaining in his enclosed vehicle and making no effort whatsoever to attract attention to himself, he did not have the requisite criminal intent required for attempt. Because appellant made no statement of any kind to the police, the court determined his intent based solely on the surrounding facts and circumstances.

Convictions based on circumstantial evidence warrant “stricter scrutiny.” State v. Bias, 419 N.W.2d 480, 484 (Minn.1988). In such cases the circumstantial evidence must do more than give rise to suspicion of guilt; “[i]t must point unerringly to the accused’s guilt.” State v. Loss, 295 Minn. 271, 281, 204 N.W.2d 404, 409 (Minn.1973) (quotation & citation omitted). We must ask whether the reasonable inferences legitimately drawn from the circumstantial evidence presented at trial “are consistent with [appellant’s] guilt and inconsistent with any rational hypothesis except that of guilt.” State v. Scharmer, 501 N.W.2d 620, 622 (Minn.1993) (quotations & citations omitted).

Here, the district court found that appellant intentionally drove to a location where children were playing and, although no children actually observed him masturbating, the possibility existed that a child could view him while on top of the playground equipment. Additionally, the court found appellant’s acts to be a substantial step toward completion of the crime, stating that a 13-14 year old could have walked by his vehicle and observed him masturbating, just as Carpenter did.

Under these specific facts and when viewed in the light most favorable to the verdict, we conclude that the evidence is sufficient to support the district court’s finding of guilt and is consistent with appellant’s guilt and inconsistent with any other rational hypothesis.

III.

Appellant also argues that there was insufficient evidence to convict him of indecent exposure. That statute reads in pertinent part:

A person who commits any of the following acts in any public place, or in any place where others are present, is guilty of a misdemeanor: (1) willfully and lewdly exposes the person’s body, or the private parts thereof; * * * (3) engages in any open or gross lewdness or lascivious behavior, or any public indecency other than behavior specified in this subdivision.

Minn.Stat. § 617.23, subd. 1 (2000).

The principle is well established that * * * before the offense of indecent exposure can be established, the evidence must be sufficient to sustain a finding that the misconduct complained of was committed with the deliberate intent of being indecent or lewd.

State v. Peery, 224 Minn. 346, 351, 28 N.W.2d 851, 854 (1947). Appellant argues that there is insufficient evidence to sustain a finding that he intended to be indecent because he remained in his vehicle and had no intention of being seen.

To establish intent where the act does not occur in a public place or where the act is not certain to be observed, some evidence further than the act itself must be presented. Peery at 352, 28 N.W.2d at 854.

Ordinarily, intent is established by evidence of motions, signals, sounds, or other actions by the accused designed to attract attention to his exposed condition, or by his display in a place so public and open that it must be reasonably presumed that it was intended to be witnessed.

Id.

The record contains no evidence that appellant endeavored to attract the attention of passers-by by motioning, signaling, or calling to them. Therefore, intent must be discerned by appellant’s act in masturbating in his parked vehicle in a public parking lot next to a public beach.

There is no case law that defines a parked vehicle as a “public place” under the indecent exposure statute. Minnesota courts define “public place” as an area in which a person has no reasonable expectation of privacy. See State v. Bryant, 287 Minn. 205, 210-11, 177 N.W.2d 800, 803-04 (1970) (finding that an individual has a reasonable expectation of privacy in a public restroom). Therefore, the initial question is whether appellant had a reasonable expectation of privacy while sitting in his parked vehicle.

Historically, there is a diminished expectation of privacy inside a car.

One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.

United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 1085, 75 L.Ed.2d 55 (1983) (quoting Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974)); see Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) (stating “[t]here is no legitimate expectation of privacy * * * shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.”). As a result, appellant’s argument — that the height of the vehicle and his confinement therein are justification for finding that his expectation of privacy was reasonable — is unsound. Moreover, the fact is that appellant’s conduct was observed without effort by a person walking by the vehicle.

Furthermore, given the location of appellant’s vehicle, parked next to a public sidewalk adjacent to a beach where there were hundreds of people, it was almost certain that someone would walk by and observe appellant masturbating. See State v. Peters, 274 Minn. 309, 316, 143 N.W.2d 832, 837 (1966) (stating that a factfinder may infer that a defendant intended the natural and probable consequences of his act). Under the circumstances, and when the evidence is reviewed in the light most favorable to the verdict, we conclude there is sufficient evidence to sustain appellant’s conviction of indecent exposure.

DECISION

Because sufficient evidence exists for the trial court to convict appellant of attempted fifth-degree criminal sexual conduct and indecent exposure, we affirm.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . The offenses were elevated to a felony and a gross misdemeanor, respectively, due to prior convictions.

      . Because Stevenson's convictions arise out of the same behavioral incident, he was sentenced only on the more serious offense of attempted fifth-degree criminal sexual conduct pursuant to Minn.Stat. § 609.035, subd. 1 (2000).


author: SANDSTROM, Justice.

text:
    2002 ND 1
    Steven JASKOVIAK, Plaintiff and Appellant, v. Daniel GRUVER, M.D., Defendant and Appellee, and Medcenter One Health Systems, Defendant.
    No. 20010065.
    Supreme Court of North Dakota.
    Jan. 3, 2002.

      Robert V. Bolinske (on brief), Bismarck, for plaintiff and appellant.
    Robert J. Udland, Vogel, Weir, Hunke & McCormick, Ltd., Fargo, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] Steven Jaskoviak appealed a summary judgment dismissing, without prejudice, his action against Daniel Gruver, M.D., and Medcenter One Health Systems (“Medcenter”). We conclude summary judgment was improperly ordered, and we reverse and remand for further proceedings.

I

[¶ 2] In 1997, Gruver operated on Jas-koviak at Medcenter’s hospital. In 1998, Jaskoviak sued Gruver and Medcenter, alleging “Gruver was negligent in his care and treatment of plaintiff in the surgical procedure involving the removal of varicose veins,” and Medcenter “was negligent in employing and permitting an unqualified physician to practice medicine.” Gruver and Medcenter moved for summary judgment dismissing Jaskoviak’s action, or for dismissal for failure to comply with N.D.C.C. § 28-01^46, which provides, in part:

Any action for injury or death against a physician, nurse, or hospital licensed by this state based upon professional negligence must be dismissed without prejudice on motion unless the claimant has obtained an admissible expert opinion to support the allegation of professional negligence within three months of the commencement of the action or at such later date as set by the court for good cause shown by the plaintiff.... This section does not apply to alleged lack of informed consent ... or ... obvious occurrence.

Section 28-01-46, N.D.C.C., “provides for preliminary screening of totally unsupported claims, and seeks to prevent protracted litigation when a medical malpractice plaintiff cannot substantiate a basis for the claim.” Greenwood v. Paracelsus Health Care Corp., 2001 ND 28, ¶ 8, 622 N.W.2d 195.

[¶ 3] Jaskoviak moved to amend his complaint to add an additional paragraph, “essentially as follows”:

That, further, defendants Gruver and Medcenter One Health Systems failed to obtain plaintiff Steven Jaskoviak’s informed consent for the procedures involved in this action.

The district court granted Jaskoviak’s motion and later issued an order permitting Jaskoviak to amend his complaint to include a claim for lack of informed consent against Gruver, but not against Medcenter. Jaskoviak never served an amended complaint.

[¶ 4] On December 27, 2000, the trial court dismissed the negligence claim against Gruver for failure to comply with N.D.C.C. § 28-01-46, and dismissed the negligence claim against Medcenter, because “nothing has been submitted establishing an admissible expert opinion on the issue of whether Medcenter was negligent in hiring or permitting Gruver to practice at Medcenter.” Although the trial court recognized N.D.C.C. § 28-01-46 does not apply to Jaskoviak’s informed consent claim, the trial court granted summary judgment dismissing the informed consent claim for lack of an expert opinion, explaining:

The only remaining claim is that Gru-ver failed to obtain Steven Jaskoviak’s informed consent. While § 28-01-46 does not apply to this issue in terms of whether an expert opinion must be provided, it is clear that establishing a violation of the requirements of informed consent does require expert testimony. The only expert evidence of negligence that has been presented in this case is Dr. Hamar’s affidavit, wherein he states (1) what options were available to the plaintiff, (2) that a physician has a duty to explain alternative treatments and the risks of each, and (3) that, if the plaintiff was not so informed, such failure would constitute medical negligence.
The Note to North Dakota Civil Pattern Jury Instruction C-14.20 states: “Expert testimony is generally necessary to identify the risks of treatment, their gravity, the likelihood of occurrence, and reasonable alternatives.” Dr. Hamar’s affidavit sets out reasonable alternatives, but does not establish any of the other requirements. Nor does any other evidence presented by the plaintiff do so. Further, the plaintiff has provided no evidence establishing the general elements of medical negligence, those being the standard of care applicable, the defendant’s failure to meet the standard of care, and that the defendant’s failure to meet the standard of care caused the plaintiffs alleged damages.

[¶ 5] A judgment of dismissal without prejudice was entered January 9, 2001. On January 12, 2001, Jaskoviak moved for reconsideration. The trial court denied Jaskoviak’s motion for reconsideration. Jaskoviak appealed. Jaskoviak later agreed to the voluntary dismissal of his appeal of that part of the judgment dismissing his claims against Medcenter.

[¶ 6] Jaskoviak contends the judgment is appealable, the trial court erred in denying his motion for reconsideration, and the trial court erred in granting Gruver’s motion for summary judgment. Gruver contends the judgment is appealable, the informed consent issue was not properly before the trial court, the trial court properly denied Jaskoviak’s motion for reconsideration, and the trial court properly granted summary judgment.

[¶ 7] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 8] The judgment of dismissal entered in this case specified it was without prejudice. “[A] dismissal without prejudice is ordinarily not appealable.” Rodenburg v. Fargo-Moorhead Young Men’s Christian Ass’n, 2001 ND 139, ¶ 12, 632 N.W.2d 407. “However, a dismissal without prejudice may be final and appealable ... if the dismissal has the practical effect of terminating the litigation in the plaintiffs chosen forum.” Id. If the dismissal stands, Jaskoviak will be barred from bringing another action by N.D.C.C. § 28-01-18(3), which sets a two-year statute of limitations for malpractice. Thus, as in Rodenburg, the judgment of dismissal ■without prejudice in this ease “effectively forecloses litigation in the courts of this state,” and, we conclude, it “is, therefore, appealable.” Id. at ¶ 12.

Ill

[¶ 9] Gruver contends the trial court abused its discretion in granting Jas-koviak’s motion to amend the complaint, and contends Jaskoviak’s appeal should be dismissed because, although the trial court granted his motion to amend the complaint to add a claim that Gruver and Medcenter failed to obtain his informed consent, Jas-koviak never served an amended complaint. We will not reverse a trial court’s decision to grant or deny a motion to amend pleadings absent an abuse of discretion. Messiha v. State, 1998 ND 149, ¶ 7, 583 N.W.2d 385. We conclude the trial court did not abuse its discretion in granting the motion to amend. This Court has held that when a motion to amend a complaint has been granted, the plaintiff must affirmatively redraw the complaint to effect an amendment or the amendment is deemed abandoned, Hausken v. Coman, 66 N.D. 633, 268 N.W. 430, 431, Syll. ¶ 2 (1936), leaving “no issue framed in the pleadings,” Clark v. Ellingson, 35 N.D. 546, 161 N.W. 199, 201 (1916). See also Nelson v. Adams USA, Inc., 529 U.S. 460, 120 S.Ct. 1579, 1584, 146 L.Ed.2d 530 (2000) (where a motion to amend a complaint to add a defendant was granted and judgment was entered without an amended pleading having been composed, served, and filed, and the defendant was not afforded ten days to state his defenses, “the proceedings did not comply with Rule 15, and neither did they comport with due process”). Here, however, a copy of the proposed amendment was served with the motion to amend, and Gruver was not disadvantaged. Furthermore, Gruver did not raise the lack of service of an amended complaint as an issue in the trial court. An issue not raised in the trial court cannot be raised for the first time on appeal. Moilan v. Moilan, 1999 ND 103, ¶ 32 n. 2, 598 N.W.2d 81.

IV

[¶ 10] Jaskoviak contends the trial court erred in denying his motion for reconsideration. A judgment of dismissal without prejudice was entered January 9, 2001. On January 12, 2001, Jaskoviak moved for reconsideration, supporting his motion with an affidavit of Dr. Martin L. Bell, a brief, and his own affidavit, averring, among other things, he would not have undergone the surgery performed by Gruver if Gruver had properly advised him about available alternatives for treating his condition. The trial court ruled “[t]he materials provided supporting the Motion do not provide a basis for the Court to change its ruling.” Evidence submitted with a motion for reconsideration after summary judgment has been granted is untimely, and this Court “need not examine whether it is sufficient to raise a genuine factual issue.” Follman v. Upper Valley Spec. Educ. Unit, 2000 ND 72, ¶ 12 n. 5, 609 N.W.2d 90. Because the affidavits submitted in support of Jaskoviak’s motion for reconsideration were submitted after summary judgment was issued, they were untimely and we need not determine whether they were sufficient to raise a genuine factual issue precluding summary judgment.

V

[¶ 11] Jaskoviak contends the trial court erred in granting Gruver’s motion for summary judgment. We recently explained our review of summary judgments:

We review this appeal in the posture of summary judgment, which is a procedural device for the prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Reed v. University of North Dakota, 1999 ND 25, ¶ 7, 589 N.W.2d 880. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. Id. Although the party seeking summary judgment must initially demonstrate there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings or upon unsupported conclusory allegations. Engel v. Montana Dakota Utils., 1999 ND 111, ¶ 7, 595 N.W.2d 319. A party resisting a summary judgment motion must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact, and must, if appropriate, draw the court’s attention to relevant evidence in the record raising an issue of material fact. Id. Summary judgment is proper against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Id. Issuefs] of fact may be appropriate for summary judgment if reasonable minds can draw only one conclusion from the evidence. Opp v. Source One Mgmt., Inc., 1999 ND 52, ¶ 16, 591 N.W.2d 101.

Dahlberg v. Lutheran Soc. Servs., 2001 ND 73, ¶ 11, 625 N.W.2d 241.

[¶ 12] “Our caselaw generally requires that the plaintiff establish through expert testimony the degree of care and skill required of a physician, and whether specified acts fall below that standard of care,” Greenwood v. Paracelsus Health Care Corp., 2001 ND 28, ¶ 13, 622 N.W.2d 195 unless “a physician’s activity constitutes a blunder so egregious that a layman is capable of comprehending its enormity,” Winkjer v. Herr, 277 N.W.2d 579, 585 (N.D.1979). This Court has recognized “trial courts should be extremely cautious in entering summary judgment in medical malpractice cases because of a lack of expert testimony.” Winkjer, at 589. Nevertheless, summary judgment may be proper if the plaintiff has failed to indicate he or she has or will be able to obtain expert medical opinion to support his or her informed consent allegations and the defendant has met the requirement of showing there is no genuine issue of fact. Id.

[¶ 13] Jaskoviak’s claim is based on Gruver’s alleged failure to obtain Jaskoviak’s informed consent before the surgery. “[T]he doctrine of informed consent is a form of negligence which essentially relates to a duty of a doctor to disclose pertinent information to a patient.” Fortier v. Traynor, 330 N.W.2d 513, 517 (N.D.1983). “The root premise in informed-consent cases is the fundamental concept stated by Justice Cardozo: ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body.’ (Citation omitted)” Buzzell v. Libi, 340 N.W.2d 36, 40 (N.D.1983). A plaintiff in an informed-consent case must establish breach of a physician’s duty of disclosure, causation, and injury. Id.See also Guidry v. Neu, 708 So.2d 740, 743 (La.Ct.App.1997) (plaintiff must show the existence of a material risk, which the physician failed to disclose, and a causal connection between the disclosure failure and the actual risk sustained); 2 J.D. Lee and Barry A. Lindahl, Modem Tort Law § 25:35 (Rev. ed.1989) [hereinafter Modem Tort Law ] (plaintiff must show the existence of a material risk unknown to the plaintiff, a failure to disclose that risk, causation, and injury); 1 Dan B. Dobbs, The Law of Torts § 250 (2001) (“Dobbs”) (plaintiff must establish nondisclosure of required information, actual damage resulting from the undisclosed risk, causation, and that reasonable persons, if properly informed, would have rejected the proposed treatment). “A causal connection exists only when adequate disclosure would have caused the patient to withhold consent to the particular course of treatment or procedure.” Buzzell, 340 N.W.2d at 40. See also 2 Modern Tort Law, supra, at § 25:48 (patient can establish a causal connection between an injury and the physician’s failure to disclose by showing “that had there been a proper disclosure, the patient would not have consented to the treatment”).

[¶ 14] “Whenever a plaintiff alleges a potential complication arose from a known but undisclosed risk, .. . the courts are divided on whether the action should be deemed a battery or negligence.” Winkjer, 277 N.W.2d at 587. This Court has adopted the negligence theory:

Although there is authority to the contrary, we find persuasive the modern trend that in cases such as this when ... “the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information” ... that failure should be termed one in negligence. Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 512, 502 P.2d 1, 8 (1972); Cornfeldt v. Tongen, 262 N.W.2d 684 (Minn.1977).

Winkjer, at 587. See also Fortier, 330 N.W.2d at 517 (informed consent doctrine is a form of negligence). “Beginning in 1972 ... the new cases ... have tended to favor a duty to disclose all material information, that is, information the physician can reasonably expect a patient would want to consider in determining whether to undergo the medical procedure.” 1 Dobbs, supra, at § 250, citing Canterbury v. Spence, 464 F.2d 772 (D.C.Cir,1972); Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (1972); Carr v. Strode, 79 Hawai’i 475, 904 P.2d 489 (1995); Cowman v. Hornaday, 329 N.W.2d 422 (Iowa 1983); Harnish v. Children’s Hosp. Med. Ctr., 387 Mass. 152, 439 N.E.2d 240 (1982); Largey v. Rothman, 110 N.J. 204, 540 A.2d 504 (N.J.1988); Scott v. Bradford, 606 P.2d 554 (Okla.1979); Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992); Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972).

[¶ 15] “Generally there exists as an integral part of the physician’s overall obligation to his patient the duty of reasonable disclosure of the available choices with respect to the proposed therapy and of the material and known risks potentially involved in each.” Winkjer, 277 N.W.2d at 587. A more difficult question is “the extent of the duty and the standard by which it should be measured.” Id.

[¶ 16] “The majority of the courts have related the duty to the custom of the physician practicing in the community.” Winkjer, 277 N.W.2d at 587. “The professional standard, once the prevailing view, has come under sustained criticism in recent years.” 2 Modern Tort Law, supra, at § 25:46, citing Largey v. Rothman, 110 N.J. 204, 540 A.2d 504 (1988); Culbertson v. Mernitz, 602 N.E.2d 98 (Ind.1992).

An increasing number of courts have adopted an “objective” or “material-risk” standard, also referred to as the “patient rule.” ... [T]he test is whether the physician disclosed all those facts, risks and alternatives that a reasonable person in the situation which the physician knew or should have known to be the plaintiffs would deem significant or material in making a decision to undergo the recommended treatment, the “prudent patient” standard.

2 Modern Tort Law § 25:46. As this Court recognized in Winkjer, 277 N.W.2d at 587-88:

A growing number of jurisdictions have adopted the persuasive reasoning of the lead case of Canterbury v. Spence, 150 U.S.App. D.C. 263, 464 F.2d 772 (1972), cert. denied 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 stating that ... a patient’s cause of action is not limited to the existence and nonperformance of a relevant professional tradition. These courts have stated a patient’s right of self-determination in particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves. As stated in Canterbury at page 276, 464 F.2d at page 785:
“... We hold that the standard measuring performance of that duty by physicians, as by others, is conduct which is reasonable under the circumstances.” [Footnotes omitted.]
And at pages 277 and 278, 464 F.2d at pages 786 and 787:
“Thus the test for determining whether a particular peril must be divulged is its materiality to the patient’s decision: all risks potentially affecting the decision must be unmasked.” [Footnote omitted.]

[¶ 17] In acquiring a patient’s informed consent to a medical procedure, a physician should disclose a number of things:

It is sometimes said that the physician should disclose the diagnosis, the general nature of the contemplated procedure, the material risks involved in the procedure, the probability of success associated with the procedure, the prognosis if the procedure is not carried out, and the existence and risks of any alternatives to the procedure.

1 Dobbs, supra, at § 251. See also Steven E. Pegalis, American Law of Medical Malpractice 2nd § 4:1, pp. 186-88 (1992), noting the American Hospital Association Risk Management Handbook advises disclosing the nature and purpose of the proposed test or treatment, the probable risks and benefits of the proposed intervention, alternative forms of care and their probable risks and benefits, remote or unusual risks involving severe injury, disability, or death, and the risks of refusing care or diagnostic tests.

[¶ 18] Assessing the materiality of a risk involves a two-pronged analysis: (1) “an examination of the existence and nature of the risk and the probability of its occurrence”; and (2) “a determination by the trier of fact of whether the risk is the type of harm which a reasonable patient would consider in deciding on medical treatment.” Guidry, 708 So.2d at 744. The materiality of information about the risk of a potential injury is a function of the severity of the potential injury and of the likelihood it will occur. 2 Modern Tort Law, supra, at § 25:46; 1 Dobbs, supra, at § 251. A physician is not required to inform a patient of risks that are so remote as to be negligible even where the consequences may be severe, and is not required to inform the patient of a very minor consequence even though the probability is high. 2 Modern Tort Law, supra, at § 25:46. Thus, as this Court recognized in Winkjer, 277 N.W.2d at 588:

A duty to disclose can arise only if the physician knew or should have known of the risks to be disclosed. Cornfeldt v. Tongen, supra. Also, a physician is not required to disclose all possible risks and dangers of the proposed procedure but only those that are significant in terms of their seriousness and likelihood of occurrence. There is no need to disclose risks of little consequence, those that are extremely remote, or those that are common knowledge as inherent in the treatment. Cobbs v. Grant, supra, 104 Cal.Rptr. at 515, 502 P.2d at 11.

Ultimately, a “trier of fact must determine whether a reasonable person in the plaintiffs position would attach significance to the specific risk.” Guidry, 708 So.2d at 744. “The disclosure requirement is in essence a requirement of conduct prudent under the circumstances.” 2 Modern Tort Law, supra, at § 25:47.

[¶ 19] “[Efcpert medical testimony is generally necessary to identify the risks of treatment, their gravity, likelihood of occurrence, and reasonable alternatives.” Winkjer, 277 N.W.2d at 588. “The necessity for expert testimony is particularly so when such information is outside the common knowledge of laymen.” Id. “Expert testimony may be necessary under the lay standard, at least to establish the existence of a risk, its likelihood of occurrence, and the type of harm in question; after that, however, expert evidence may not be required.” 2 Modem Tort Law, supra, at § 25:46. “However, experts may be required to show both that material information existed and that the defendant should reasonably have known about it.” 1 Dobbs, at 656.

[¶ 20] In responding to Jaskoviak’s motion to amend his complaint to allege a lack of informed consent and requesting summary judgment of dismissal, Gruver submitted a February 17, 1997, medical record stating:

Steven Jaskoviak is in for vein stripping. Note the H & P. I explained the possible complications of surgery including infection, postop pain, and recurrence of pain.

Gruver also submitted a May 4, 1998, medical record of Dr. Steven K. Hamar, which stated of a visit and examination of Jaskov-iak, in part:

Since his vein stripping, he has had considerable discomfort from the mid-thigh to the mid-calf area, both lower extremities to the point where he cannot walk very much. He says it just hurts all the time.... He has a numbness ... and he also had some discoloration of the right lower extremity where the vein had been excised and he was concerned about that.
At this point in time, I have discussed with him what the complications of varicose vein surgery are which essentially entail what he has going on here. They are known complications. The pigmentation is not something that is probably going to go away at this point in time. The numbness is certainly not going to go away and his incisions have healed. The gaiter area is not going to improve. There is nothing surgically that can remove this. He does need to wear Jobst Varix compression hose 30-40 mm. of mercury knee-high bilaterally and should do this for the remainder of his lifetime and I have told him that.

[¶ 21] Jaskoviak supported his response to the motions for dismissal with an affidavit of Dr. Hamar, which stated, in part:

3. I have seen Steven Jaskoviak on several occasions. It is my opinion that prior to surgery Mr. Jaskoviak should be or have been informed of the options and/or alternative treatments for varicose veins. These include (1) to inject them with a sclerosing solution (2) to remove them by the stripping operation or (3) to treat them with pressure elastic stockings.
4. It is my further opinion that a physician has a duty to inform the patient as to the nature of the procedure to be performed, the purpose it will serve, the alternatives involved and the dangers and risks of serious complications inherent in the procedure. The risks and benefits of each alternative procedure must also be explained.
5. Before performing the vein stripping procedure performed on Mr. Jas-koviak, had I been his physician, I would have informed him of each of the alternative treatment procedures available and would have specifically advised him of the risks and benefits of each. If this was not done it would, in my opinion, constitute medical negligence in that Mr. Jaskoviak was not provided with sufficient information to give his informed consent to the surgical procedure performed by Dr. Gruver.

Jaskoviak also supported his response with his own affidavit, stating, in part:

At no time before the operation did Dr. Gruver tell me anything about what was going to happen. He never explained to me that I’ll be scarred for life like Dr. Hamar told me. He never told me that I would need to wear corrective Jobst socks for the rest of my life. He never told me that I would lose all my strength and not be able to do the things that I did before.

[¶ 22] Dr. Hamar’s affidavit addressed alternative treatments for Jaskoviak’s varicose veins; stated a physician’s general duty to disclose the nature and purpose of a proposed procedure, the risks involved in the procedure, alternatives to the procedure, and the risks and benefits involved in the alternatives; and said a failure to disclose those things would constitute medical negligence. In his May 4, 1998, medical record, Dr. Hamar states the “known complications” of varicose vein surgery “essentially entail what [Jaskoviak] has going on here.”

[¶ 23] In our view, the affidavits of Jas-koviak and his expert, Dr. Hamar, together with Dr. Hamar’s May 4, 1998, medical record, set forth evidence of the standard of care to be met by Gruver, Gruver’s failure to meet the required standard of care, injury, and causation. Considered with Gruver’s February 17, 1997, medical record, this evidence raises a genuine issue of material fact as to whether Gruver failed to obtain Jaskoviak’s informed consent to the surgery, by failing to inform Jaskoviak of the nature of the procedure to be performed, its purpose, alternatives, and the dangers and risks involved in the procedure. We therefore conclude summary judgment of dismissal was improperly ordered.

VI

[¶ 24] The judgment is reversed, and the matter is remanded for further proceedings.

[¶ 25] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., and WILLIAM W. McLEES, D.J., concur.

[¶ 26] The Honorable WILLIAM W. McLEES, D.J., sitting in place of KAPSNER, J., disqualified.