This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Michael Raymond Rozales,
n/k/a Nico Miguel Salas,
Filed April 4, 2000
Dakota County District Court
File No. K6921457
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Nico Miguel Salas challenges the district court’s denial of his petition for postconviction relief, claiming that (1) the judge should have been removed for bias, (2) use of a new expert-witness report at the postconviction proceeding violated double jeopardy, and (3) the court violated Salas’s due-process rights by using hearsay reports of sexual assaults to conclude that Salas was a patterned sex offender. We affirm.
In May 1993, a jury found Salas guilty of thirteen counts of criminal sexual conduct involving two juvenile victims, E.M.G. and J.A.G. The district court ordered a presentence investigation and a psychosexual evaluation by Dr. Peter Marston, and in August 1993, the court sentenced Salas to five consecutive sentences of 158 months, totaling 790 months in prison.
Salas appealed, and this court held that “consecutive sentences for incidents involving the same victim constitute[d] an abuse of discretion.” State v. Rozales, No. C8-93-2157, 1994 WL 263346, at *2 (Minn. App. June 14, 1994). On remand, this court recommended that the district court (1) sentence Salas to two consecutive sentences of 25 years each, under Minn. Stat. § 609.1352 (1990) (patterned-sex-offender statute), modified to a maximum sentence of 40 years pursuant to Minn. Stat. § 609.15, subd. 2 (1990); (2) impose two consecutive sentences of 244 months, or (3) impose two concurrent sentences with an upward durational departure. Id.
In October 1994, the district court resentenced Salas to 316 months, under the patterned-sex-offender statute, with respect to Count I involving E.M.G. The district court then imposed executed sentences of 86 months, 86 months, and 86 months with respect to the counts involving J.A.G. Each 86-month sentence was to run consecutively to the sentence imposed on Count I. The district court then modified the 574-month sentence to 480 months, the statutory maximum sentence under Minn. Stat. § 609.15, subd. 2. The district court made the factual findings required by the patterned-sex-offender statute and stated that its findings were based on Dr. Marston’s June 17, 1993, assessment.
In July 1998, Salas brought a petition for postconviction relief, claiming that because Dr. Marston did not conclude in his June 1993 assessment that Salas was a patterned sex offender, the district court had no basis for concluding that Salas was a patterned sex offender. The district court granted a hearing on the petition.
Before the hearing, the prosecutor sent Dr. Marston a letter asking him to re-evaluate Salas in light of the patterned-sex-offender statute. Dr. Marston issued a written report on October 16, 1998, which Salas’s attorney received at or just before the October 19, 1998, hearing. The hearing was bifurcated to allow Salas’s attorney an opportunity to prepare for his cross-examination of Dr. Marston. A second hearing was held on December 7, 1998.
On November 6, 1998, Salas’s attorney brought a motion before the chief judge to remove the presiding judge from the postconviction proceeding. The same judge had presided at the trial, sentencing, and re-sentencing of Salas. The motion was based on comments the judge made to the attorneys in chambers just before the October 19 hearing. The judge allegedly said that: (1) he was still convinced that he had sentenced Salas correctly and that the court of appeals was wrong; (2) he was going to receive Dr. Marston’s second report and accept his testimony; and (3) if Salas’s attorney did not like it, Salas could go live with the attorney and his wife. Salas argues that the judge violated the Code of Judicial Conduct by openly questioning a decision of the court of appeals and by making an inappropriate comment to Salas’s counsel. Salas also argues that the judge was biased against him. The chief judge denied Salas’s motion.
At the December 7, 1998, hearing, Dr. Marston testified that he believed Salas met the criteria of the patterned-sex-offender statute. He admitted that although he reviewed several additional documents, not reviewed in 1993, that contained unproved allegations of sexual misconduct by Salas, the additional documents were not the basis for his conclusion but were merely consistent with Salas’s known conviction history. Based on Dr. Marston’s conclusion, the district court sentenced Salas to 50 years in prison under the patterned-sex-offender statute, modified to 40 years under Minn. Stat. § 609.15, subd. 2. Salas appeals.
D E C I S I O N
This court will review a postconviction proceeding only to determine whether the evidence is sufficient to sustain the district court’s findings. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). The postconviction court’s decision will not be disturbed absent an abuse of discretion. Id.
Salas argues that the chief judge erred in denying his motion to remove the judge from the postconviction proceeding on the grounds of alleged violations of the Code of Judicial Conduct and bias. The removal of judges in criminal prosecutions is addressed in Minn. R. Crim. P. 26.03, subd. 13(3)-(6). A request to disqualify a judge for cause is heard and determined by the chief judge. Id., subd. 13(3). A writ of prohibition is the appropriate remedy for the denial of a motion to remove a judge for cause. State v. Cermak, 350 N.W.2d 328, 331 (Minn. 1984); State v. Poole, 472 N.W.2d 195, 196-97 (Minn. App. 1991). But, although Salas did not seek a writ of prohibition, we will nevertheless consider the issue here.
Under Minn. R. Crim. P. 26.03, subd. 13(3), a judge may not preside over a trial or other proceeding if the judge is disqualified under the Code of Judicial Conduct. An affirmative showing of cause is required to remove a judge. Id. And a party must demonstrate prejudice or implied or actual bias in order to remove a judge following the start of trial. Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn. 1990). The denial of a motion to remove is reviewed under an abuse-of-discretion standard. Id.
First, Salas argues that the judge violated Canon 2(A) of the Code of Judicial Conduct, which states that “[a] judge shall respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Salas alleges that the district court openly disagreed with this court’s decision to remand this case for resentencing. The chief judge denied removal on this ground stating that “although [the district court] may have expressed a different opinion than the higher court, he followed the law as directed by the Court of Appeals.” Because the judge’s alleged statement was made in chambers, we cannot say that it would have had the effect of undermining public confidence in the judiciary. Therefore, the chief judge did not abuse her discretion in denying removal on this ground.
Next, Salas argues that the judge violated Canon 3(A)(4) of the Code of Judicial Conduct, which requires judges to be “dignified and courteous” to litigants and others dealt with in an official capacity. Salas alleges that the judge told his attorney that if he did not like the judge’s ruling “Salas could go live with him and his wife.” The chief judge found that even if the judge made this statement, it was, at worst, “a somewhat insensitive attempt at levity,” which did not rise to the level necessary for removal for cause. While the alleged comment was inappropriate, we agree that it was not sufficient for removal for cause.
Finally, Salas argues that the judge was biased because he had clearly shown his intention to give Salas the longest sentence possible. Salas argues that at the first sentencing the judge ignored the statutory maximum of 40 years and sentenced Salas to 65 years and that on remand the judge did not follow any of the three sentencing options recommended by this court. But on remand, the judge made the required findings and sentenced Salas under the patterned-sex-offender statute and modified the sentence to the statutory maximum of 40 years, which is consistent with one of the sentencing options recommended by this court. On these facts, we cannot say that the chief judge abused her discretion in denying Salas’s motion to remove.
Salas argues that the district court violated the Double Jeopardy Clause of the Minnesota Constitution by allowing the state to introduce Dr. Marston’s reevaluation and testimony at the hearing on Salas’s petition for postconviction relief, in which he asked for correction of his sentence. This court reviews de novo the constitutional issue of double jeopardy. State v. Watley, 541 N.W.2d 345, 347 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).
The statute governing postconviction relief specifically allows additional evidence to be offered by the petitioner or the state in a postconviction proceeding. Minn. Stat. § 590.04, subd. 3 (1998) (allowing postconviction court to “receive evidence in the form of affidavit, deposition, or oral testimony”). Moreover, the guarantee against double jeopardy does not prevent the correction of a defendant’s sentence. See State v. Humes, 581 N.W.2d 317, 320-21 (Minn. 1998) (holding that double jeopardy is not violated by correcting sentence to include conditional-release term). The district court did not violate the prohibition against double jeopardy by allowing the state to introduce Dr. Marston’s reevaluation and testimony in the postconviction proceeding.
Salas argues that the district court violated his right to due process by sentencing him as a patterned sex offender based on the 1998 psychological assessment, which relied on uncharged offenses that the state did not prove by clear and convincing evidence. While not a trial, a sentencing procedure must comply with due process. Gardner v. Florida, 430 U.S. 349, 358 (1977).
Before Dr. Marston submitted his October 1998 report, the prosecutor gave him documents containing uncharged allegations of sexual misconduct by Salas. The documents included police reports, a consultation report from the Midwest Children’s Resource Center, and a letter from Salas’s probation officer to the postconviction court. Dr. Marston testified that while the unproved allegations are consistent with Salas’s history, they were not the basis for his conclusion that Salas is a patterned sex offender. According to Dr. Marston, there was sufficient information, based on Salas’s 1983 and 1992 convictions for criminal sexual conduct and his admission that he impregnated a 14-year-old girl, to conclude that Salas fit the criteria of the patterned-sex-offender statute.
Salas cites State v. Gorman, 546 N.W.2d 5 (Minn. 1996), for the proposition that a sentencing court may rely on offenses for which the defendant has not been convicted only if the state has proven those allegations by clear and convincing evidence. See generally id. at 9 (discussing sentencing under Minnesota’s career-offender statute, Minn. Stat. § 609.152 (1996) (now Minn. Stat. § 609.1095 (1998))). Salas argues that Dr. Marston’s reliance on the unproved allegations is the only explanation for the differences between the 1993 and 1998 reports. But Dr. Marston testified that in 1993 he was not instructed to consider whether Salas met the criteria of the patterned-sex-offender statute, and, therefore, he did not do so. Here, the district court did not rely on offenses that were not proved by clear and convincing evidence but rather relied on Dr. Marston’s report and testimony, which were based on Salas’s conviction history and admissions.
 Since his last appeal to this court Michael Raymond Rozales has changed his legal name to Nico Miguel Salas.
 Minn. Stat. § 609.1352 (1990) was recodified in 1998. 1998 Minn. Laws ch. 367, art. 6, § 5. The recodification also added a subdivision that is not at issue in this case. See Minn. Stat. § 609.108, subd. 2 (1998) (patterned-sex-offender statute). But the offenses of which Salas was convicted were committed between March 16, 1992, and April 30, 1992. Therefore, the prohibition against ex post facto laws requires the continued application of Minn. Stat. § 609.1352. See U.S. Const. art. I, § 10; Minn. Const. art. I, § 11 (prohibiting the enactment of ex post facto laws); see also Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955) (stating that an ex post facto law is one that “renders an act punishable in a manner in which it was not punishable when it was committed”).
 Minn. Stat. § 609.15, subd. 2 (1990), has been amended. 1992 Minn. Laws ch. 571, art. 2, § 8. But the changes apply only to crimes committed after August 1, 1992. 1992 Minn. Laws ch. 571, art. 2, § 14. Because the offenses for which Salas was convicted were committed before August 1, 1992, the prohibition against ex post facto laws requires the continued application of Minn. Stat. § 609.15, subd. 2 (1990). See U.S. Const. art. I, § 10; Minn. Const. art. I, § 11.