This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-263

 

Steven Allen Housman, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed October 1, 2002

Affirmed

Lansing, Judge

 

Chippewa County District Court

File No. K794356

 

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, Suite 600, 2829 University Ave. Southeast, Minneapolis, MN† 55414 (for appellant)

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN† 55103; and

 

Dwayne Knutsen, Chippewa County Attorney, 102 Parkway Drive, P.O. Box 591, Montevideo, MN† 56265 (for respondent)

 

††††††††††† Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.

U N P U B L I S H E D†† O P I N I O N

 

LANSING, Judge

††††††††††† On remand following Steven Housmanís first postconviction appeal, the district court determined that Housmanís sentence for second-degree criminal sexual conduct properly includes a ten-year conditional-release term.† Because the evidence supports the courtís finding that it is not reasonably likely that all of the criminal acts to which Housman pleaded guilty occurred before the effective date of the conditional-release statute, we affirm.

F A C T S

 

††††††††††† Steven Housman pleaded guilty to second-degree criminal sexual conduct for sexually assaulting his daughter, S.H., between October 22, 1990, and April 1, 1993.† The state originally charged Housman with three counts of first-degree criminal sexual conduct with both his daughter S.H. and his daughter K.H. but, after plea negotiations, agreed to dismiss the first-degree charges in exchange for Housmanís plea to an amended charge of second-degree criminal sexual conduct.

The complaint alleged that all of the criminal sexual conduct occurred during the time the Housmans lived together in a farmhouse in rural Chippewa County.† Housman and his wife separated in March 1993 when his wife and daughters moved out of the farmhouse.† After the move, Housman had no unsupervised visits with S.H. or K.H.† In August 1993, four-year-old K.H. reported sexual contact by Housman.† In September 1993, three-year-old S.H. told her mother that Housman had touched her sexually several times.† Both children repeated their accounts of Housmanís sexual contact to an interviewer at Cornerhouse in Minneapolis.† Although both children reported that the contact occurred during the time they lived in the farmhouse, neither could connect the occurrences to a specific date.

At the plea hearing, Housman admitted that he had had sexual contact with S.H., but testified that he could not remember when it occurred.† At sentencing, Housman equivocated in his account of what had happened.† The court advised Housman that it could not accept his plea unless he reaffirmed it and provided a more detailed factual basis.† After conferring with his attorney, Housman testified that he had had sexual contact with his daughters sometime between the time they were born and April 1, 1993, more than once, ďover a period of time.Ē†

The district court sentenced Housman to 58 months in prison plus fines and restitution.† The court included in the sentence a ten-year conditional-release term because of Housmanís prior conviction for intrafamilial sexual abuse.† The court stayed execution and placed Housman on probation for 25 years.† Five months after sentencing, the court found that Housman had violated the terms of his probation, revoked his probation, and executed his sentence.† Housmanís imprisonment ended in July 2000, but he remains subject to the ten-year conditional-release term.

Housman moved for postconviction relief challenging the imposition of the conditional-release term on the ground that his conviction offense was committed before the effective date of the conditional-release statute.† The district court denied the motion stating ď[a] reasonable likelihood exists that some of Defendantís criminal acts took place after the conditional release provision * * * became effective on August 1, 1992.Ē

Housman appealed and this court reversed, stating that a defendant could be sentenced under the patterned-sex-offender statute only if ďthere is no reasonable likelihood that all of petitionerís multiple acts * * * occurred before the statute became effective.Ē† State v. Housman, No. C7-00-1781, 2000 WL 641636 at *2 (Minn. App. June 12, 2001) (citing and quoting State v. Murray, 495 N.W.2d 412, 413 (Minn. 1993)) (emphasis and omission in original).† We remanded to the district court with instructions to apply the ďno reasonable likelihoodĒ standard to the facts.† Id.

On remand, the district court applied the correct standard to the evidence and found that there was no reasonable likelihood that all of Housmanís criminal conduct toward S.H. occurred before August 1, 1992, the effective date of the conditional-release statute.† Based on these findings, the court concluded that the ten-year conditional-release term must remain in effect.† Housman appeals.

D E C I S I O N

 

††††††††††† We review a postconviction courtís findings to determine whether there is sufficient evidentiary support in the record to sustain the postconviction courtís findings and whether the decision constitutes an abuse of discretion.† Black v. State, 560 N.W.2d 83, 85 (Minn. 1997).† We defer to the postconviction courtís fact-findings and reverse the findings only if they are clearly erroneous.† Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).† In postconviction proceedings, the petitioner bears the burden of establishing facts by a fair preponderance of the evidence.† Minn. Stat. ß 590.04, subd. 3 (2000).

I

††††††††††† Minnesota laws are presumed to operate prospectively only, unless the legislature clearly and manifestly indicates otherwise.† Minn. Stat. ß 645.21 (2000).† When it is unclear whether a defendantís criminal act occurred before or after the effective date of a statute, the defendant may request a special interrogatory allowing the jury to decide whether the sentencing-enhancement offense was committed before the statute became effective.† State v. Lunsford, 507 N.W.2d 239, 244 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).† If a conviction involves a plea, rather than a trial, the defendant is entitled to have the sentencing judge determine whether the criminal act took place after the statuteís effective date.† Id.† A defendantís acts are governed by the statute only if the court finds that there is no reasonable likelihood that all of defendantís acts occurred before the statuteís effective date. †Murray, 495 N.W.2d at 413.

Minnesotaís original conditional-release statute, Minn. Stat. ß 609.346, subd. 5(a), became effective on August 1, 1992.† See 1992 Minn. Laws ch. 571 art. 1, ß 29.† It provides that a person convicted of a criminal-sexual-conduct offense a second or subsequent time is ďto serve a supervised release term of not less than ten years.Ē† Minn. Stat. ß 609.342, subd. 5(a) (1992).† Housman pleaded guilty to a charge of second-degree criminal sexual conduct that took place between 1990 and 1993.† It is undisputed that he had previously been convicted of a criminal-sexual-conduct offense.† Thus, the only question raised by this appeal is whether the record supports the district courtís finding that there is no reasonable likelihood that all of Housmanís criminal conduct occurred before August 1, 1992.

We conclude that the record supports the district courtís decision.† At his plea hearing, Housman acknowledged that his criminal sexual conduct spanned a time frame between October 22, 1990, and April 1, 1993.† Later at his sentencing hearing, Housman admitted that the abuse occurred ďover a period of timeĒ and that he could not remember the exact dates.† S.H. and K.H. lived with Housman for approximately eight months after the conditional-release statute came into effect.† Housman admitted to the court that he had had time alone with his daughters during this period.† S.H. and K.H. separately reported that their father abused them.† They reported the abuse within a month of each other late in the summer of 1993.† Each of the children gave separate, detailed descriptions of the abuse in their Cornerhouse interviews later that fall.† Given the young age of S.H. (approximately four) and K.H. (approximately three) it is unlikely that in September 1993 they would be reporting conduct that occurred before August 1992.† The times of the childrenís reports, the level of detail, and the opportunity for the abuse all add weight to the district courtís findings.

Although neither the children nor Housman was able to identify particular dates for the abuse, the facts in the record and Housmanís own admissions indicate that he abused both of his daughters while they were living in the farmhouse.† Housman did not indicate any point in time after which no further abuse occurred and did not object to the characterization of his crime as occurring between October 1990 and April 1993.† Thus, Housman has provided no evidence that excludes the conduct from the effective date of the statute.

The district courtís finding that there is no reasonable likelihood that all of Housmanís criminal acts occurred before the effective date of the conditional-release statute is supported by the record.† The court did not abuse its discretion by retaining the conditional-release term as part of Housmanís sentence.

††††††††††† Affirmed.