Freddie Lee Livingston, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-2265

Freddie Lee Livingston, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed September 9, 2003

Reversed and remanded

Lansing, Judge

Anoka County District Court

File No. K6998533

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

Robert M. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN  55303 (for respondent)

            Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

On appeal from an order denying his postconviction petition to correct his sentence for third-degree criminal sexual conduct, Freddie Livingston argues that the district court erred when it relied on a prior North Dakota conviction to increase his conditional-release period from five years to ten years.  Because the North Dakota crime was not, at the time of sentencing, an enumerated offense that could be considered in determining Livingston's conditional-release period, we reverse.

F A C T S

            The district court found Freddie Livingston guilty of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (1998).  The court sentenced Livingston to thirty-eight months in prison and imposed a ten-year conditional-release period based on Livingston's prior conviction for attempted gross sexual imposition in North Dakota.

Livingston moved to correct his sentence by reducing the conditional release period from ten years to five years.  He argued that the ten-year conditional release was not authorized by Minn. Stat. § 609.109, subd. 7 (1998), because his prior North Dakota conviction was not an enumerated offense that could increase his conditional-release period above the five years required for his current offense.  The court denied Livingston's motion, and this appeal followed.

D E C I S I O N

The district court has jurisdiction at any time to correct a sentence that is not authorized by law.  Minn. R. Crim. P. 27.03, subd. 9.  A sentence that is contrary to the requirements of the applicable sentencing statute is unauthorized by law.  See State v. Humes, 581 N.W.2d 317, 319 (Minn. 1998).  Whether the district court properly construed a sentencing statute is a question of law subject to de novo review.  State v. Wukawitz, 662 N.W.2d 517, 525 (Minn. 2003).

Starting in 1992, a court sentencing a person for certain sex crimes was required to place that person on conditional release following completion of the sentence.  See Minn. Stat. § 609.109, subd. 7 (1998); 1992 Minn. Laws ch. 571, art. 1, §§ 25, 29 (referring to the period as "supervised release").  The length of the conditional-release period depends on the number and nature of any prior convictions:

[W]hen a court sentences a person to prison for a violation of section 609.342, 609.343, 609.344, or 609.345, . . . the person shall be placed on conditional release for five years[.]  If the person was convicted for a violation of one of those sections a second or subsequent time, . . . the person shall be placed on conditional release for ten years . . . .

Minn. Stat. § 609.109, subd. 7(a) (1998); see also State v. Humes, 581 N.W.2d 317, 319 (Minn. 1998) (noting that conditional release is mandatory under statute).

Livingston acknowledges that under subdivision 7(a) his current sentence for a violation of section 609.344 carries with it a mandatory five-year conditional release.  But he disputes that his prior North Dakota conviction qualifies as a violation of section 609.342, 609.343, 609.344, or 609.345 that would increase the conditional-release period to ten years.  We agree.

The goal of statutory construction is to ascertain and effectuate the legislature's intent.  State v. Loge, 608 N.W.2d 152, 155 (Minn. 2000).  If statutory language is clear and unambiguous, we do not engage in any further construction and we look to the plain meaning of the statutory language.  Wukawitz, 662 N.W.2d at 525.

Under subdivision 7(a) as it read at the time Livingston was sentenced, a person sentenced for violating section 609.342, 609.343, 609.344, or 609.345 a second or subsequent time was to be placed on conditional release for ten years.  Out-of-state convictions were not included in subdivision 7(a)'s list of specific violations that trigger the ten-year conditional release.  Thus the plain meaning of subdivision 7(a) at the time of Livingston's sentencing did not allow out-of-state-convictions to be used to increase conditional release from five years to ten years.

The state argues that Minn. Stat. § 609.02, subd. 11 (2000), defining a "second or subsequent violation or offense" should be read into subdivision 7(a).  See State v. Noggle, 657 N.W.2d 890, 893 (Minn. App. 2003) (reading sections together to ascertain whether adjudication on earlier offense occurred before commission of current offense).  But subdivision 11 still requires an adjudication of a "specified similar violation or offense."  Id.  And the phrase "second or subsequent violation or offense" is not equivalent to subdivision 7(a)'s phrase "violation of one of those sections [609.342, 609.343, 609.344, or 609.345] a second or subsequent time."

Some of the confusion on whether a similar out-of-state offense could be considered as an initial violation for purposes of section 609.109 stems from the language in section 609.109, subdivision 5, at the time of Livingston's sentencing that defined a "sex offense" as "a violation of sections 609.342 to 609.345 or any similar statute of the United States, this state, or any other state."  But that definition was for the purposes of subdivision 2, which used the term "previous sex offense conviction" in specifying factors to be considered in imposing a presumptive executed sentence, and subdivisions 3 and 4, using the same term to specify when certain mandatory sentences could be imposed.  See Minn. Stat. § 609.109, subds. 2-5 (1998).  Subdivision 7(a) did not use the term "sex offense" or "previous sex offense convictions."  Consequently, the definition of "sex offense" is not relevant to a determination of whether a five- or ten-year conditional-release period applies in Livingston's case.  See State v. Olson, 325 N.W.2d 13, 19 (Minn.1982) (stating that when interpreting penal statute the rule of strict construction applies and all reasonable doubts on legislative intent are resolved in favor of defendant). 

Our conclusion that the plain meaning of subdivision 7, as it existed when Livingston was sentenced, does not include out-of-state convictions is confirmed by the legislature's 2002 amendment to subdivision 7 that provides for a ten-year conditional-release period if the defendant has a "previous sex offense conviction."  2002 Minn. Laws ch. 385, § 4.  A "sex offense" is defined as "a violation of sections 609.342 to 609.345 or any similar statute of the United States, this state, or any other state."  Minn. Stat. § 609.109, subds. 7, 5 (2002).  The 2002 amendment demonstrates the necessity of changing the language in subdivision 7 to include out-of-state offenses as a trigger for imposing a ten-year conditional-release period.  Although including these offenses from the outset might more reasonably have advanced the purpose of the conditional-release statute, "courts are not free to substitute amendment for construction and thereby supply the omissions of the legislature."  State v. Moseng, 254 Minn. 263, 269, 95 N.W.2d 6, 11-12 (1959).

Finally, we reject the state's argument that two of our published opinions and one of our unpublished opinions support its argument.  Contrary to the state's assertion, State v. Cook, 617 N.W.2d 417 (Minn. App. 2000), review denied (Nov. 21, 2000), does not authorize a district court to use an out-of-state conviction to determine the length of a conditional-release period.  The extended conditional-release period in Cook was permitted because the legislature merged Cook's prior crime of intrafamilial sexual abuse into the criminal-sexual-conduct statutes that are enumerated in subdivision 7.  Cook, 617 N.W.2d at 420.  The state's reliance on State v. Hopkins, No. C4-01-923, 2002 WL 980867 (Minn. App. May 14, 2002), is also misplaced.  Although we noted in Hopkins that the district court used the defendant's prior Washington convictions in imposing an extended conditional-release period, that issue was not raised in the Hopkins appeal.  For the same reason, the state's reliance on State v. Henthorne, 637 N.W.2d 852 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002) is unavailing.  Under a plain reading of Minn. Stat. § 609.109, subd. 7 (1998), Livingston's North Dakota offense was not a prior conviction that the district court could consider in imposing Livingston's conditional-release period.

            Reversed and remanded.