This opinion will be unpublished and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,
Thomas E. Kittrell,
Filed November 12, 2002
Affirmed as modified
Gordon W. Shumaker, Judge
Steele County District Court
File No. K698259
Thomas E. Kittrell, OID #200383, MCF – Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767-9449 (pro se appellant)
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2122; and
Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant argues on appeal that the district court violated the Apprendi rule by sentencing him as a patterned sex offender on two counts of second-degree assault to terms that exceed the statutory maximum, requiring him to supply a DNA sample, requiring him to register as a sex offender, and imposing a mandatory conditional-release term. See Apprendi v. N.J., 530 U.S. 466, 120 S. Ct. 2348 (2000). Because the district court did not abuse its discretion in sentencing appellant and in imposing related conditions, we affirm and modify the conditional-release term.
Appellant Thomas Kittrell sat in his pickup truck in a Wal-Mart parking lot on March 28, 1998, and watched S. E. and C. L. drive into the lot in a minivan. After the women parked and went inside the store, Kittrell entered the van and hid in the back.
When the women returned and began to drive away, they noticed Kittrell moving toward them from the rear of the van. As he moved, he held a knife above his head and made downward stabbing motions toward S. E. The women fled and screamed for help. Soon afterward, the police arrested Kittrell in the Wal-Mart parking lot.
The state charged Kittrell with two counts of attempted kidnapping and two counts of second-degree assault. He entered a plea agreement under which he pleaded guilty to both counts of second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (1998), in exchange for an aggregate sentence limited to 126 months and consisting of 84 months for one count and 42 months for the other, and the dismissal of the attempted-kidnapping charges. Kittrell also stipulated that the entire record, including his criminal history, would be submitted to the court for a determination of whether he is a patterned sex offender. He agreed not to offer evidence or argument on that issue and not to oppose a finding that he is a patterned sex offender.
After reviewing the stipulated record, the district court concluded that Kittrell is a patterned sex offender. The court then sentenced Kittrell to a term of 126 months, of which 84 months is to be served in prison and 42 months on supervised release. The court also ordered Kittrell to provide a DNA sample, register as a sex offender, and pay restitution.
Following the entry of the sentencing order, Kittrell moved to “correct” the sentence, challenging the court’s determination that he is a patterned sex offender. The court denied the motion in an order filed on September 10, 2001, but in its memorandum stated: “[d]efendant was not sentenced under the Patterned Sex Offender Statute.”
Kittrell appealed. The state moved to dismiss the appeal as untimely. In an order dated June 11, 2002, this court denied the motion to dismiss the appeal and ordered: “The scope of appellate review is limited to those sentencing or sentencing‑related issues addressed in the district court’s September 10, 2001 order.”
In its order filed on September 10, 2001, the district court ruled on two issues related to Kittrell’s sentence: (1) the length of his sentence, and (2) the determination that Kittrell is a patterned sex offender, which affects the duration of his sentence and triggers collateral consequences, such as DNA sampling and sex‑offender registration. Our analysis is confined to these two issues.
D E C I S I O N
It appears that Kittrell, in this pro se appeal, challenges both the court’s determination that he is a patterned sex offender and the sentence premised on that determination.
When he entered his plea of guilty, Kittrell stipulated to the admission of the record for the court’s review on the issue of whether he is a patterned sex offender:
Second, [Kittrell] will stipulate to the admission of the entire record of this proceeding that exists prior to the withdrawal of his original plea. He’s not required to admit that he is a patterned sex offender. This is an issue that will be determined by the Court based on the prior record. [Kittrell] will not submit any evidence on the issue nor argue. [Kittrell] will not oppose such a finding.
The state argues that the plain language of Kittrell’s plea agreement compels the conclusion that he waived any right to challenge the district court’s conclusion that he is a patterned sex offender. Waiver is “a voluntary relinquishment of a known right.” Flaherty v. Indep. Sch. Dist. No. 2144, 577 N.W.2d 229, 232 (Minn. App. 1998) (quoting Engstrom v. Farmers & Bankers Life Ins. Co., 230 Minn. 308, 311, 41 N.W.2d 422, 424 (1950)), review denied (Minn. June 17, 1998). But even if he did not waive his right to make that challenge, the record supports the district court’s conclusion. We review factual findings and conclusions to ascertain whether the court has committed clear error. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).
In its findings of fact, the district court noted Kittrell’s nearly 15‑year history of sex crimes, some of which involved the use of motor vehicles to confine his female victims and the use of physical force or a gun or a knife to coerce submission to sexual assaults. All but one of the crimes involved forced sexual penetration. Some of the crimes involved two female victims. The court also noted two separate psychosexual assessments of Kittrell conducted by two different professionals. The court found that each examiner concluded that Kittrell “is a patterned sex offender who poses [a] high risk to commit future criminal sexual conduct offenses.”
Although Kittrell admitted that he entered the minivan, he denied that he did so with sexual intent or that he had a knife in his hand. In his Goulette plea, he agreed that there was sufficient evidence from which a jury could find beyond a reasonable doubt that he in fact had a knife in his hand and that his conduct was motivated by sexual intent. Kittrell’s behavior in the Wal-Mart parking lot was strikingly similar in all material aspects to the pattern of conduct Kittrell engaged in during most of his prior sex crimes.
Thus, the record amply supports the court’s conclusion that Kittrell’s surreptitious entry of the minivan and his threatening gestures with a knife were motivated by his sexual impulses and fit a “predatory pattern of behavior with the common objective of committing criminal sexual conduct or sexual assaults.” There is neither evidence nor argument in the record that contradicts the court’s finding or its conclusions.
When the district court sentences a person convicted of a “predatory crime” to an executed sentence under the sentencing guidelines, the court must double the presumptive sentence or impose the statutory maximum if it is less than double the presumptive sentence. Minn. Stat. § 609.108, subd. 1(1) (1998). The assaults to which Kittrell pleaded guilty are predatory crimes. See Minn. Stat. § 609.108, subd. 3 (predatory crimes include violations of section 609.222). We review sentencing decisions under a clear-abuse-of-discretion standard. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
When the court imposed its sentence, Kittrell had a criminal-history score of 4. Second‑degree assault is a level VI crime. Minn. Sent. Guidelines V (1998). The presumptive sentence for Kittrell’s first assault count is 45 months, executed. Minn. Sent. Guidelines IV. That presumptive sentence doubled equals 90 months. The statutory maximum sentence for second-degree assault is 84 months. Minn. Stat. § 609.222, subd. 1 (1998). The court sentenced Kittrell to an executed term of 84 months on Count I, thus, not exceeding the statutory maximum sentence.
Current felonies against two victims may be sentenced consecutively, but the second felony must be premised on a criminal-history score of zero. Minn. Sent. Guidelines II.F., cmt. II.F.02. The presumptive sentence, then, for Kittrell’s second assault is 21 months, with execution stayed. Minn. Sent. Guidelines IV. The statutory maximum sentence for that assault remains at 84 months. Minn. Stat. § 609.222, subd. 1. The court doubled the presumptive sentence and sentenced Kittrell to 42 months. By doing so, the court imposed an aggregate sentence of 126 months, the limit to which Kittrell and the state agreed in the plea bargain.
Kittrell argues that the court did not sentence him as a patterned sex offender and, therefore, the court abused its discretion by imposing the mandatory sentence provided in Minn. Stat. § 609.108. In its memorandum attached to the order filed September 10, 2001, the district court stated: “Defendant was not sentenced under the Patterned Sex Offender Statute.”
We deem the word “not” to be a typographical error. All other sentencing references in this order and in the court’s original sentencing order show conclusively that the court intended to sentence Kittrell, and in fact did sentence him, as a patterned sex offender. Thus, the sentence was both within the limits of the plea agreement and of Minn. Stat. § 609.108. Furthermore, the aggregate sentence is less than the aggregate statutory maximum sentence of 168 months and is not beyond the prescribed statutory maximum. Thus, the court did not violate Apprendi v. N.J., 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).
Kittrell raises the concern that, even after he completes his prison sentence, he potentially will be subject to an additional prison term under the conditional-release law. That law provides, in part:
At the time of sentencing under subdivision 1, the court shall provide that after the offender has completed the sentence imposed * * * the commissioner of corrections shall place the offender on conditional release for the remainder of the statutory maximum period, or for ten years, whichever is longer.
Minn. Stat. § 609.108, subd. 6. Because the court sentenced Kittrell to the statutory maximum time on the first count of assault, his conditional-release period will be ten years. If he violates any release condition during that period, the commissioner
may revoke the offender’s conditional release and order that the offender serve all or a part of the remaining portion of the conditional release term in prison.
Id. Kittrell argues that the imposition of a ten-year conditional-release period would violate both his plea agreement and Apprendi.
The state contends that the conditional-release issue is raised prematurely and, therefore, is not reviewable. But we have previously held that a conditional-release issue may be reviewed at the beginning of an offender’s sentence. State v. Jones, 647 N.W.2d 540, 547 (Minn. App. 2002) (relying on the supreme court’s review of a similar challenge to a conditional-release term on appeal from a probation revocation, at the beginning of an executed prison sentence), review granted(Minn. Sept. 25, 2002).
In State v. Jumping Eagle, 620 N.W.2d 42, 44-45 (Minn. 2000), the supreme court held that if a mandatory conditional-release term has the effect of increasing a sentence beyond the upper limits of a court-accepted plea agreement, the sentence may be modified so that it remains within the limits of the plea agreement.
We acknowledged in Jones that the court cannot waive the conditional-release statute. Jones, 647 N.W.2d at 547. But the court can reduce the conditional-release period because the conditional release duration is not mandatory. State v. Wukawitz, 644 N.W.2d 852, 856 (Minn. App. 2002), review granted (Minn. Aug. 6, 2002).
Kittrell is subject to conditional release under Minn. Stat. § 609.108, subd. 6, only on the first count of assault. It is that count that the court sentenced under Minn. Stat. § 609.108, subd. 1. Because the sentence under that count was for the statutory maximum of 84 months, the addition of ten years conditional release would violate the plea agreement and Apprendi.
But because Kittrell will be subject to a stayed term of 42 months after his release from prison, neither the plea agreement nor Apprendi is violated if the conditional-release period under Minn. Stat. § 609.108, subd. 6, is reduced to 42 months and is made to run concurrently with the supervised-release term. We thus modify Kittrell’s sentence accordingly.
The other “sentencing‑related” requirements are collateral conditions that do not in any way extend Kittrell’s sentence. See Kruger v. Erickson, 875 F. Supp. 583, 589 (D. Minn. 1995) (holding that DNA sampling is not penal in nature); State v. Kaiser, 641 N.W.2d 900, 904 (Minn. 2002) (holding that defendant’s duty to register as a sex offender is not punitive, but collateral in nature). These collateral consequences do not violate Apprendi.
The district court did not abuse its discretion in sentencing Kittrell and imposing collateral conditions.
Affirmed as modified.