State of Minnesota, Respondent, vs. Emerson Joely Marlowe, Appellant.

State of Minnesota, Respondent, vs. Emerson Joely Marlowe, Appellant. A06-1806, Court of Appeals Unpublished, August 21, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1806

 

State of Minnesota,

Respondent,

 

vs.

 

Emerson Joely Marlowe,

Appellant.

 

Filed August 21, 2007

Reversed and remanded

Kalitowski, Judge

 

Olmsted County District Court

File No. K1-04-2763

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Mark A. Ostrem, Olmsted County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

 

John M. Stuart, State Public Defender, Michael W. Kunkel, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Emerson Marlowe challenges the district court's sentence of a lifetime conditional-release term pursuant to Minn. Stat. § 609.3455, subd. 7 (Supp. 2005), arguing that (1) his offense was committed before the authorizing statute took effect; and (2) his prior adjudication of delinquency for second-degree criminal sexual conduct is not a previous sex-offense conviction under Minn. Stat. § 609.109, subd. 7 (2002).  We reverse and remand for resentencing.

D E C I S I O N

I.

            Appellant argues that the district court erred by imposing a lifetime conditional-release term pursuant to Minn. Stat. § 609.3455, subd. 7(b) (Supp. 2005), because his offense was committed before the statute took effect.  We agree.

            Statutory construction is a question of law, which we review de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

            A person convicted of second-degree criminal sexual conduct is subject to a mandatory ten-year conditional-release term, Minn. Stat. § 609.3455, subd. 6 (Supp. 2005), unless "the offender has a previous or prior sex offense conviction," in which case the offender is subject to a mandatory lifetime conditional-release term.  Minn. Stat. § 609.3455, subd. 7(b) (Supp. 2005).  The enabling legislation for the statute expressly states:  "This section is effective August 1, 2005, and applies to crimes committed on or after that date."  2005 Minn. Laws ch. 136, art. 2, § 21.

            The crime from which appellant's conviction stems was committed on November 3, 2003.  Therefore, appellant is not subject to the mandatory lifetime conditional-release provision of Minn. Stat. § 609.3455, subd. 7(b) (Supp. 2005), which only applies to crimes committed on or after August 1, 2005.

            We conclude that the district court erred by imposing a lifetime conditional-release term on appellant, and we reverse and remand for resentencing consistent with this opinion.

II.

            Implicit in the district court's imposition of a lifetime conditional-release term is the court's determination that appellant's prior adjudication of delinquency for second-degree criminal sexual conduct constituted a "previous or prior sex offense conviction."  See Minn. Stat. § 609.3455, subd. 7(b) (Supp. 2005) (mandating a lifetime conditional- release term for offenders who have a prior sex-offense conviction).  Appellant argues that under the applicable conditional-release statute in effect when appellant's offense was committed, Minn. Stat. § 609.109, subd. 7 (2002), adjudications of delinquency are not previous sex-offense convictions, and on remand his prior adjudication of delinquency should not be considered a prior sex-offense conviction.  We agree.

            The relevant statutory language from 2002 states:

If the person was convicted for a violation of section . . . 609.343 . . . the person shall be placed on conditional release for five years . . . . If the person was convicted for a violation of one of those sections after a previous sex offense conviction . . . the person shall be placed on conditional release for ten years.

 

Minn. Stat. § 609.109, subd. 7(a).

            In State v. Boehl, we concluded "that under Minn. Stat. § 609.109, subd. 7, juvenile adjudications are not qualifying criminal-sexual-conduct convictions requiring the imposition of a mandatory ten-year conditional release term."  697 N.W.2d 215, 222 (Minn. App. 2005), review denied (Minn. Aug. 16, 2005).  Following Boehl, we conclude that the district court erred by treating appellant's previous adjudication of delinquency for second-degree criminal sexual conduct as a previous sex-offense conviction for purposes of Minn. Stat. § 609.109, subd. 7.

            Reversed and remanded.