may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
Steven Allen Housman, petitioner,
State of Minnesota,
Filed June 12, 2001
Reversed and remanded
Chippewa County District Court
File No. K794356
Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, Mn 55103 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
This appeal is from an order denying appellant Steven Allen Housman’s postconviction petition challenging the conditional-release term in his sentence for second-degree criminal sexual conduct. Housman argues that because there is insufficient evidence that any of the alleged acts of sexual misconduct occurred after the conditional-release statute became effective, the sentencing court improperly imposed a ten-year conditional-release term. We reverse and remand.
Housman was charged with three counts of first-degree criminal sexual conduct for sexually assaulting his two daughters, S.H. and K.H., on several occasions between October 22, 1990, and April 1, 1993. All of the alleged acts took place at the home of Housman and his wife, J.H.
In March 1993, J.H. separated from Housman, and she and her daughters moved out of their farmhouse. After J.H. moved, Housman had no unsupervised visits with S.H. or K.H. In August 1993, K.H. reported sexual contact by Housman. In September 1993, S.H. told her mother that Housman had touched her sexually several times. S.H. repeated her account of sexual contact by Housman to Judy Weigman at Cornerhouse in Minneapolis, but she did not state when the events occurred.
Housman pleaded guilty to an amended count of second-degree criminal sexual conduct, and the other charges were dismissed. At the plea hearing, Housman admitted that he had sexual contact with S.H., but testified that he could not remember when it occurred. At sentencing, Housman told the court that he agreed to plead guilty only because he wanted to avoid a much longer sentence if convicted of the original charge. The court stated that it could not accept Housman’s plea unless he reaffirmed it, providing a more detailed factual basis. After conferring with his attorney, Housman testified that he had sexual contact with his daughters sometime between the time they were born and April 1, 1993, on more than one occasion, “over a period of time.”
In accordance with the plea agreement, Housman was sentenced to 58 months in prison plus fines and restitution. His sentence also included a ten-year conditional-release term. The court stayed execution and placed Housman on probation for 25 years. About five months later, the court found that Housman violated the terms of his probation, revoked his probation, and executed his sentence. Housman’s imprisonment ended in July 2000, but he remains subject to the ten-year conditional-release term.
We review a postconviction proceeding to determine whether the evidence is sufficient to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, a postconviction court’s decision will not be disturbed on appeal. McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).
Minn. Stat. § 609.346, subd. 5(a) (1992) provides:
Notwithstanding the statutory maximum sentence otherwise applicable to the offense or any provision of the sentencing guidelines, any person who is sentenced to prison for a violation of section 609.342, 609.343, 609.344, or 609.345 must be sentenced to serve a supervised release term as provided in this subdivision. The court shall sentence a person convicted for a violation of section 609.342, 609.343, 609.344, or 609.345 to serve a supervised release term of not less than five years. The court shall sentence a person convicted for a violation of one of those sections a second or subsequent time, or sentenced under subdivision 4 to a mandatory departure, to serve a supervised release term of not less than ten years.
Because Housman pleaded guilty to a violation of Minn. Stat. § 609.343, subd. 1(a) (1992) and he had a prior conviction of one of the applicable offenses, he was sentenced to a ten-year conditional-release term.
Minn. Stat. § 609.346, subd. 5, became effective on August 1, 1992, and applied to crimes committed on or after that date. 1992 Minn. Laws ch. 571, art. 1, § 29. Housman contends that there is no evidence in the record that indicates when his offenses occurred. Housman argues that because there is a reasonable likelihood that all of the acts against S.H. were committed before the effective date of the statute, his sentence could not include a conditional-release term.
State v. Murray, 495 N.W.2d 412 (Minn. 1993), addressed whether a defendant could be sentenced under the patterned-sex-offender statute for an offense that occurred sometime within the one-year period during which the statute was enacted. The supreme court stated:
Petitioner can be sentenced under the patterned sex offender statute for this particular offense only if there is no reasonable likelihood that all of petitioner’s multiple acts * * * occurred before the statute became effective.
Id. at 413; see also State v. Lunsford, 507 N.W.2d 239, 244 (Minn. App. 1993) (following Murray), review denied (Minn. Dec. 14, 1993).
Citing Lunsford, the postconviction court stated in its memorandum of law:
[Housman] cannot be sentenced to conditional release if, during the period in question, all of his multiple acts of penetration occurred before the statute became effective and there is no reasonable likelihood that they occurred after August 1, 1992.
* * * *
Based on Housman’s plea, the testimony received, the fact that these incidents took place over a period of time * * * and that the victims were continuing to make allegations well into 1993, there is a strong basis to believe that some criminal acts occurred after the effective date of the aforementioned statute.
Also, in its conclusions of law, the postconviction court stated
A reasonable likelihood exists that some of [Housman’s] criminal acts took place after the conditional release provision of Minnesota Statutes § 609.346 became effective on August 1, 1992.
These statements demonstrate that the postconviction court applied the wrong legal standard when determining whether Housman’s sentence could include a conditional-release term. Evidence that establishes a reasonable likelihood that some criminal acts took place after August 1, 1992, does not necessarily establish that there is no reasonably likelihood that all of the alleged criminal acts occurred before August 1, 1992. It is possible that the evidence established that both of the two occurrences are reasonably likely. By stating only that it is reasonably likely that some of the acts occurred after August 1, 1992, the postconviction court did not indicate whether it had also determined that this was the only reasonably likely occurrence or whether this was one of two or more reasonably likely occurrences. Consequently, we cannot read the postconviction court’s findings of fact, conclusions of law, order, and memorandum as stating that there is no reasonable likelihood that all of the alleged criminal acts occurred before August 1, 1992. We, therefore, reverse and remand to permit the postconviction court to apply the correct legal standard.
Reversed and remanded.