State of Minnesota v. Jack Perry Frazier ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1059
State of Minnesota,
Respondent,
vs.
Jack Perry Frazier,
Appellant.
Filed September 15, 2014
Reversed and remanded
Cleary, Chief Judge
Hennepin County District Court
File No. 27-CR-11-10826
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Cleary, Chief Judge; Peterson, Judge; and Reyes,
Judge.
UNPUBLISHED OPINION
CLEARY, Chief Judge
Appellant Jack Perry Frazier challenges the district court’s denial of his motion for
correction of his sentence under Minn. R. Crim. P. 27.03, subd. 9. The state filed an
informal brief, with a motion to accept the informal brief, conceding that appellant is
entitled to relief. Based on the state’s concession, this court issued an order granting the
motion to accept and assigned the matter to a special term panel. We reverse and
remand.
FACTS
Appellant was charged in April 2011 with one count of failure to register as a
predatory offender, in violation of Minn. Stat. § 243.166, subds. 1b, 5(a), 5(b), 5a, 10
(2010). The complaint notified appellant that the penalty for this offense ranged from “1
year and a day-5 years and/or $10,000 plus a 10-year conditional release term if
defendant was assigned to risk level III on the date of the offense.” At the time of this
offense, appellant was a level three sex offender and apparently on parole for first-degree
criminal sexual conduct offenses he committed in 1998.
A plea and sentencing hearing was held on May 10, 2011. Appellant signed a
written plea petition, acknowledging that on February 17, 2011, he “left the address
where I was registered and fail[ed] to register my new location.” Appellant also
acknowledged that the maximum penalty for the offense was five years, with a minimum
sentence of not less than one year and one day. Paragraph 24 of the written plea petition
stated: “I understand that for felony driving while impaired offenses and most sex
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offenses, a mandatory period of conditional release will be imposed to follow any
executed prison sentence, and violating the terms of that conditional release may increase
the time I serve in prison.” The petition set out appellant’s plea agreement with the
prosecutor as “26 mo[nths] executed concurrent w[ith] current parole/revocations, w[ith]
33 days credit.”
At the combined plea and sentencing hearing, the prosecutor stated that the parties
had reached an agreement and recommended that the district court impose a downward
durational departure, to 26 months. The prosecutor stated that the grounds for the
departure included appellant’s “acceptance of responsibility and not as serious as your
normal failure to register case.” The prosecutor did not request a pre-sentence
investigation (PSI), and the matter proceeded to sentencing at the parties’ request.
Appellant acknowledged that he signed and understood everything in the written plea
petition, which he had reviewed with his attorney.
The court accepted the plea petition and asked defense counsel to “just inquire
regarding the waiver of the PSI and the conditional release time.” The following
exchange occurred, but conditional release was not discussed or mentioned:
[Defense Counsel:] Mr. Frazier, you understand that
you are entitled to have a Presentence Investigation done and
taken into consideration. But since you are already on parole
and you’re going to prison on this, are you willing to waive
that and be sentenced today?
[Appellant:] Yes.
[Defense Counsel:] You understand that this may also
extend the period of time that you are required to register as a
predatory offender?
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[Appellant:] Yes.
[Defense Counsel:] And you also understand that if
you have a subsequent failure to register offense, the
mandatory sentence would be at least two years, although,
with your points, probably wouldn’t make any difference. It
would be, possibly, a higher sentence?
[Appellant:] Yes.
The district court thereafter sentenced appellant, as follows:
I do find today, Mr. Frazier, sir, that you’ve given me a
knowing, intelligent and voluntary waiver of your trial rights
and your right to have a Pre-Sentence Investigation ordered
for you.
I also find that you’ve given me a sufficient factual
basis to find you guilty of what you’ve pled to today, failure
to register as a predatory offender as a felony level offense,
occurring February 17th, 2011, in Hennepin County.
I do convict you of that offense at this time. I will
follow the plea negotiation your attorneys worked out on your
behalf and enter a downward durational departure, sentencing
you and committing you to the custody of the Commissioner
of Corrections for 26 months.
That sentence will be in two parts. The minimum part
of that will be two-thirds of the sentence and, assuming all
good time, the remaining third would be on a supervised
release.
I am ordering that you receive jail credit in the amount
of 33 days, and that any court fines or surcharges are waived
due to your financial circumstances.
I am also noting the agreement is concurrent with the
parole violation and then sentencing.
The sentence imposed on the record by the district court failed to mention or include the
mandatory ten-year conditional release term. The written warrant of commitment filed
by the court a few days later also did not include the ten-year conditional release term.
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The MNCIS1 Register of Actions, however, contains a notation that appellant’s
sentence includes “Conditional Release After Confinement of 10 Yr.” The “Minnesota
Department of Corrections Sentence Detail” also indicates that a “10 year” conditional
release term is associated with this sentence. The department of corrections (DOC)
sentence detail further indicates that appellant’s sentence expired on June 6, 2013.
In January 2014, appellant filed a motion for correction of sentence, seeking to
vacate the ten-year term of conditional release. The district court concluded that the ten-
year conditional release term was validly imposed by the court at the plea and sentencing
hearing on May 10, 2011, even though the term was not explicitly mentioned at
sentencing or included in the warrant of commitment, because appellant was on notice
that his sentence carried a mandatory conditional release term.
This appeal followed.
DECISION
The district court treated appellant’s motion to correct his sentence as a motion for
postconviction relief. See Powers v. State, 731 N.W.2d 499, 501 n.2 (Minn. 2007)
(noting that “the language of Minn. Stat § 590.01 . . . is broad enough to encompass a
motion pursuant to Minn. R. Crim. P. 27.03”). This court reviews a postconviction
court’s decision for an abuse of discretion, but we review its legal determinations de
novo. Townsend v. State, 834 N.W.2d 736, 738-39 (Minn. 2013).
1
The register of actions is maintained in MNCIS, or the Minnesota Court Information
System. The register of actions is kept as a record by the district court administrator. See
Minn. Stat. § 485.07(1) (2012). The register is a record of the title of each action brought
in that county’s courts, “and a minute of each paper filed in the cause, and all proceedings
in them.” Id.5
Appellant argues that the district court erred in determining that a notation on the
MNCIS register of actions was akin to a sentencing order or warrant of commitment and
that the notation was sufficient to impose the ten-year conditional release term and
include it in the sentence. Appellant argues that because the notation on the register of
actions was not a valid sentencing order and because his sentence has expired, the district
court erred in denying his motion. The state concedes on appeal that “the mandatory
term of conditional release was not imposed by the District Court and that the District
Court’s jurisdiction over the case and authority to impose any such condition terminated
upon expiration of the 26 month sentence imposed in the instant matter.” We agree with
the parties.
Sentencing is a judicial function. State v. Olson, 325 N.W.2d 13, 17-18 (Minn.
1982) (stating that power to define criminal conduct and fix punishment is vested in the
legislature, while “imposition of the sentence within the limits prescribed by the
legislature is purely a judicial function”). The legislature can “restrict the exercise of
judicial discretion in sentencing, such as by providing for mandatory sentences” and it
can “grant an administrative body the authority to supervise a convicted person . . . .” Id.
at 18. Thus, a court must impose a sentence and state the precise terms of that sentence.
See Minn. R. Crim. P. 27.03, subd. 4 (providing that the district court must state the
precise terms of the sentence); State v. Staloch, 643 N.W.2d 329, 331 (Minn. App. 2002)
(stating that the “orally pronounced sentence controls over a judgment and commitment
order when the two conflict”).
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Conditional release is a mandatory sentencing term that must be imposed by a
court. See State v. Humes, 581 N.W.2d 317, 319-20 (Minn. 1998) (holding that the
district court had jurisdiction to amend a sentence, which had not yet expired, to include a
conditional release term that had been omitted at sentencing in connection with a rule
27.03 motion brought by the state). When sentencing a person assigned to a risk level III
for failure to register as a predatory offender, “the court shall provide that after the person
has completed the sentence imposed, the commissioner [of corrections] shall place the
person on conditional release for ten years.” Minn. Stat. § 243.166, subd. 5a (2012).
Conditional release must be imposed by a court, not by the district court administrator
through a notation on the MNCIS register of actions or by the department of corrections
in its sentencing detail document. See State v. Purdy, 589 N.W.2d 496, 498-99 (Minn.
App. 1999) (determining that letter by a law clerk, “not vested with any judicial
authority,” was insufficient to amend a sentence to include a conditional release term).
If a district court fails to include a conditional release term when imposing a
sentence, the court can issue an order amending the sentence at a later date to include
conditional release. See, e.g., Humes, 581 N.W.2d at 319-20. But if the original sentence
did not include conditional release and the district court fails to amend the sentence to
include that term before the sentence expires, the court loses its authority to add the
conditional release term. Martinek v. State, 678 N.W.2d 714, 718-19 (Minn. App. 2004).
Once an inmate completes the terms of imprisonment and supervised release, the
sentence expires. State ex rel. Peterson v. Fabian, 784 N.W.2d 843, 846 (Minn. App.
2010).
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In this case, the original sentence did not include conditional release, either in the
district court’s oral pronouncement or in the written warrant of commitment that was
signed by the court. Because the district court’s order being appealed here essentially
adds the term to appellant’s sentence, we conclude that the court erred in denying
appellant’s motion for correction of his sentence to vacate that term.
Finally, we note that appellant was on notice that he was subject to a ten-year
conditional release term. The term was referenced in the complaint, the possibility of a
conditional release term was mentioned in a paragraph of the plea petition, and the ten-
year conditional release term was included in notations on the register of actions and the
DOC’s sentencing detail document. While this notice was insufficient for the reasons
previously stated, prior to expiration of the sentence the district court could have
amended or corrected the sentence to add this mandatory term. The fact that appellant
had notice of the ten-year conditional release term would have weighed against any
argument he might have made to challenge the court’s amendment of his sentence. See,
e.g., State v. Calmes, 632 N.W.2d 641, 645 (Minn. 2001) (discussing due process
limitations on court’s ability to correct sentence when defendant claims to have
“crystallized expectation of finality” in originally imposed sentence); State v. Garcia, 582
N.W.2d 879, 881 (Minn. 1998) (same); Humes, 581 N.W.2d at 320-21 (same). However,
no attempt was made to amend or correct the sentence prior to its expiration.
Because the conditional release term was not imposed by the district court prior to
expiration of the sentence, the court lacked authority to modify appellant’s sentence to
include conditional release. The district court’s order denying appellant’s motion for
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correction of his sentence is therefore reversed and remanded and the district court is
instructed to vacate the ten-year term of conditional release.
Reversed and remanded.
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