This opinion will be unpublished and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

C1-01-1639

 

Gary Bishop, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed February 12, 2002

Affirmed
Foley, Judge
*

 

St. Louis County District Court

File No. K194600030

 

Alan L. Mitchell, St. Louis County Attorney, Mark S. Rubin, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802-2323 (for respondent)

 

Gary Lee Bishop, 7545 Sunset Lake Drive, Saginaw, MN 55779 (pro se appellant)

 

            Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant was convicted in 1994 of first-degree criminal sexual conduct, sentenced in 1995, and his conviction affirmed in 1996.  In 1999, the district court imposed a five-year conditional release term to the sentence, which appellant alleges constitutes double jeopardy, a violation of the separation of powers, and cruel and unusual punishment.  Appellant also raised several evidentiary issues from the 1994 trial.  We affirm.

FACTS

            Appellant Gary Bishop was charged with various acts of sexual contact and penetration committed against M.H. when she was seven years old.  Before trial, the state gave notice that it would seek to introduce a videotaped statement given by M.H. to a police officer shortly after she reported the offense to her mother.

            M.H.’s mother testified that Bishop lived with her and her daughter off and on for eight years and that she found Bishop sleeping in M.H.’s room twice, once on the edge of her bed, the other time on the floor.  After Bishop moved out of the apartment, M.H. reported to her mother that Bishop had sexually abused her. 

The district court admitted the videotaped statement M.H. gave to a police officer.  Although defense counsel noted there was no record of the circumstances of the interview, he stated twice that he had no objection to the videotape.  Later, after the police officer testified about the circumstances in which the statement was taken, defense counsel did not object to its admission.  M.H. testified at trial, describing instances when Bishop engaged in sexual contact and penetration with her.  The state presented the testimony of a doctor who examined M.H. and found irritation consistent with sexual abuse.

The jury found Bishop guilty on both counts in 1994.  At sentencing, defense counsel requested a dispositional departure, arguing the presumptive sentence was too harsh.  He conceded that the presentence investigation appeared appropriate, but stated his concern that there was no psychological assessment for use in sentencing.  The trial court imposed the presumptive 86-month executed sentence.  The sentence did not provide for a five-year period of conditional release after his incarceration, as required by Minnesota law.

            This court affirmed Bishop’s conviction in an opinion dated February 6, 1996.  Subsequently, in 1998, Bishop filed a petition for postconviction relief, contesting several issues actually raised or that could have been raised in the original appeal.  The district court denied the petition. 

            On May 12, 2000, pursuant to an inquiry from the corrections department relating to Bishop’s sentencing, the district court ordered that a five-year period of conditional release be included in Bishop’s sentence.  One year later, appellant filed a pro se petition for postconviction relief, challenging the imposition of the conditional release on constitutional grounds, as well as recontesting several issues raised in the original appeal, in the first petition for postconviction relief, or both.  The district court denied the petition.  This appeal followed.

D E C I S I O N

            A petitioner seeking postconviction relief bears the burden of establishing, by a fair preponderance of the evidence, facts that would warrant a reopening of the case.  State v. Warren, 592 N.W.2d 440, 449 (Minn. 1999).  This court will affirm the district court’s decision to deny a petition for postconviction relief absent an abuse of discretion.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  The district court “may dismiss a petition for postconviction relief without conducting an evidentiary hearing if the petition, files and record conclusively show that the petitioner is entitled to no relief.”  Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998) (quotation and citation omitted). 

I.

            Bishop alleges several points of error in his most recent petition for postconviction relief that either were alleged in his direct appeal or that could have been raised at that time. 

[O]nce a defendant has had a direct appeal, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”

Townsend v. State, 582 N.W.2d 225, 228 (Minn. 1998) (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). 

            Bishop asserts in the appeal of the denial of his petition for postconviction relief that the district court abused its discretion by sentencing him in 1995 without first ordering an independent assessment of his need for sex-offender treatment and not ruling on the admissibility of the videotape submitted into evidence at trial.  Those issues were raised in Bishop’s first appeal.  The district court did not abuse its discretion in declining to consider them. 

            The issues Bishop raises in his petition regarding (1) admissibility of the victim’s out-of-court statements; (2) whether a full foundation was laid for an expert witness and that defense counsel’s failure to ask for a full foundation constituted ineffective assistance of counsel; (3) sufficiency of the evidence; and (4) the state’s failure to address exculpatory evidence during the trial, were all known at the time of the original appeal because they related to the conduct of the trial.  Those issues may not now be raised in a petition for postconviction relief, and the district court did not abuse its discretion in refusing to consider them.

II.

            Bishop contends that the district court’s imposition of a five-year period of conditional release in its May 12, 2000, order is unconstitutional because it was not imposed at the original sentencing and constitutes double jeopardy and cruel and unusual punishment.  He also alleges that imposing the terms of the conditional release violates the separation-of-powers doctrine of the Minnesota Constitution.

            When Bishop was convicted of first-degree criminal sexual conduct, Minn. Stat. § 609.346, subd. 5(a) (1994),[1] required that a five-year period of conditional release be included in his sentence.  Conditional release is a mandatory aspect of the sentence to be imposed for certain statutorily designated sex offenses.  State v. Schwartz, 628 N.W.2d 134, 139 (Minn. 2001).  It cannot be waived by the district court.  State v. Garcia, 582 N.W.2d 879, 881 (Minn. 1998).  When the conditional-release aspect of a sentence is not imposed, that sentence is unauthorized and the court retains jurisdiction to correct it later.  See State v. Hume, 581 N.W.2d 317, 321 (Minn. 1998).  Such amendments do not violate the double jeopardy or due process clauses of the United States or Minnesota constitutions.  Id.  Further, the department of corrections may determine the terms of conditional release without violating the separation-of-powers provision of the Minnesota Constitution.  Schwartz, 628 N.W.2d at 140-41. 

            Here, the corrections department contacted the district court in 1999 to ascertain whether a term of conditional release was included in Bishop’s sentence.  Because no conditional-release term was included in the original sentence, the district court ordered the commissioner of corrections to place Bishop on conditional release for five years after he completed his term of imprisonment.  Such action was proper and did not violate the federal or state constitutions.[2] 

            Bishop cites no authority for the proposition that the conditional release term violates the United States or Minnesota constitutional prohibitions against cruel and unusual punishment.  Assignments of error based on mere assertion and not supported by argument or authority will not be considered on appeal unless prejudicial error appears obvious on simple inspection of the record.  State v. Lipscomb, 289 Minn. 511, 513, 183 N.W.2d 790, 792 (1971).  We see no such error because statutes are presumed constitutional, and

a person challenging a sentence as cruel or unusual bears the heavy burden of showing that our culture and laws emphatically and well nigh universally reject the sentence. 

State v. Chambers, 589 N.W.2d 466, 479-80 (Minn. 1999) (quotations omitted).  We see no such universal rejection here.  In fact, the Minnesota Supreme Court has recently reaffirmed the imposition of conditional-release terms on a sentence.  See State v. Calmes, 632 N.W.2d 641, 649 (Minn. 2001). 

            Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] This requirement is now codified as Minn. Stat. § 609.109, subd. 7(a) (2000), and is substantively unchanged.

[2] We recently held in Shern v. State, 635 N.W.2d 96, 99 (Minn. App. 2001), that a convicted defendant is entitled to notice and an opportunity to request a hearing before the district court corrects a sentence to add a nonwaivable, mandatory period of conditional release.  The purpose of any hearing would be to notify the sentencing court of any factors that would make a full hearing appropriate.  Id.  However, whether the district court should hold such a hearing is discretionary.  Id.  As in Shern, we find that Bishop has presented no factors that would make the district court’s failure to provide notice and a hearing prejudicial.  Appellant raises only legal issues in his challenge to the conditional release term.