This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jerrold Ryan Kemmer,
Filed April 10, 2001
Beltrami County District Court
File No. K099784
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Timothy R. Faver, Beltrami County Attorney, 207 Fourth Street N.W., Bemidji, MN 56601 (for respondent)
Kyle D. White, 386 North Wabasha Street, Suite 600, St. Paul, MN 55102; Philip Andrew Duran, 310 E. 38th Street, #204, Minneapolis, MN 55409 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Amundson, Judge, and Willis, Judge.
U N P U B L I S H E D O P I N I O N
Appellant contends that the district court erred by ordering him to register as a sex offender because the factual basis established at the time of his guilty plea was insufficient to show that the act of sodomy to which he pleaded guilty arose from the “same set of circumstances” as the fourth-degree criminal sexual conduct with which he was charged. Because the record supports the order to register, we affirm.
In the early morning hours of June 9, 1999, after drinking with friends, appellant Jerrold Ryan Kemmer offered to drive the male victim, T.R., to T.R.’s home in Bemidji. Kemmer instead drove to a secluded area in Kelliher, where T.R. passed out. T.R. claims that when he awoke, Kemmer was rubbing an ointment on T.R.’s penis.
Kemmer was charged with fourth-degree criminal sexual conduct, under Minn. Stat. § 609.345, subd. 1(d) (1998). He pleaded guilty to gross-misdemeanor sodomy, claiming that he performed consensual oral sex on T.R. See Minn. Stat. § 609.293, subd. 5 (1998) (providing penalties for engaging in consensual acts of sodomy). The state then dismissed the charge of criminal sexual conduct, and the district court ordered Kemmer to undergo a psychological evaluation before the sentencing hearing. Based on the results of the evaluation and Kemmer’s prior record of sexual misconduct, the court determined that Kemmer posed a high risk for reoffending and sentenced him to 122 days in jail, with credit for time served; placed him on two years’ probation; and ordered him to register as a sex offender, pursuant to Minn. Stat. § 243.166 (1998).
In his brief on appeal, Kemmer addressed three issues: (1) whether there was an adequate factual basis to support his guilty plea; (2) whether there was an adequate basis on which to order him to register as a sex offender; and (3) whether Minnesota’s sodomy statute is constitutional. At oral argument, Kemmer withdrew his challenges to the basis for the guilty plea and the constitutionality of the sodomy statute. Instead, he asked this court to remand the case to the district court for “resentencing,” arguing that, on remand, the district court should reconsider the sex-offender registration without considering facts that were not on the record as of the date of the plea hearing. He reasoned that the factual basis for sex-offender registration must be established when the plea is entered, and that, on the facts that were of record at the plea hearing, it was improper to require Kemmer to register.
The only remaining issue before this court, then, is whether the district court erred in ordering Kemmer to register as a sex offender.
Persons convicted of certain enumerated offenses are required to register as sex offenders:
(a) A person shall register under this section if: (1) the person was charged with * * * a felony violation of or attempt to violate any of the following, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances:
* * * *
(iii) criminal sexual conduct under section * * * 609.345 [fourth-degree criminal sexual conduct].
Minn. Stat. § 243.166, subd. 1 (1998) (emphasis added). Sodomy is not one of the offenses enumerated in the statute.
Kemmer argues that there is no basis in the record for the district court’s determination that the act with which Kemmer was charged and the act to which he pleaded guilty arose out of the same set of circumstances “because the court never established what those circumstances were.” In Boutin, the supreme court held that Boutin, who was charged with third-degree criminal sexual conduct but pleaded guilty to a lesser-included charge of assault, was required to register as a sex offender because the charged offense and the offense to which he pleaded guilty arose out of the same set of circumstances. Boutin v. LaFleur, 591 N.W.2d 711, 715 (Minn. 1998), cert. denied, 528 U.S. 973 (1999). As Kemmer acknowledges in his brief, Boutin stands for the proposition that a district court is not required to find explicitly that the act with which a defendant is charged and the act to which he pleads guilty arise from the same underlying facts “if those facts are sufficiently established in the record.”
Kemmer cites Boutin and two unpublished opinions of this court in support of his assertion that district courts must look to the factual basis established at the plea hearing in determining whether registration is appropriate. But none of those cases holds that a sentencing court must look only at the facts of record at the time a plea is entered when deciding whether the defendant should be required to register as a sex offender. And nothing in Minn. Stat. § 243.166 suggests that if the factual basis established at the plea hearing is insufficient to establish that two acts arose out of the same set of circumstances, a sentencing court is prohibited from ordering a defendant to register as a sex offender. The statute provides that the court “shall tell the person of the duty to register” when that person is sentenced. Minn. Stat. § 243.166, subd. 2 (1998). We conclude that, for the purpose of ordering sex-offender registration, a court may consider the record as it exists at the time of sentencing.
Here, the record at the time of sentencing contained (1) the complaint, which alleges that T.R. was the victim of the fourth-degree criminal sexual conduct with which Kemmer was charged and that the crime occurred on June 9, 1999, in a secluded area in Kelliher; (2) a written statement by T.R., which alleges that Kemmer committed the charged offense against him while he was “passed out” and that he was “enraged” that Kemmer was allowed to plead guilty to a gross-misdemeanor consensual act of sodomy; and (3) the pre-sentence investigation report, which explains that Kemmer was charged with fourth-degree criminal sexual conduct but pleaded guilty to gross-misdemeanor sodomy, that his victim was T.R., and that the incident took place in Kelliher on June 9, 1999.
It is clear from the record that the charge of fourth-degree criminal sexual conduct and the gross-misdemeanor sodomy to which Kemmer pleaded guilty involved the same victim and occurred on the same date at the same place, and arose out of the same set of circumstances. We therefore conclude that, because Kemmer was charged with an offense enumerated in Minn. Stat. § 243.166 and was convicted of another offense that arose out of the same set of circumstances, the district court did not err in requiring him to register as a sex offender.