This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Tony DeJuan Jackson, petitioner,





State of Minnesota,




Filed December 17, 2002


Halbrooks, Judge



Dakota County District Court

File No. K1972857


Tony DeJuan Jackson, #197562, MCF-Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082-1117 (pro se appellant)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)




            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s sentencing order, claiming that his sentence was improper based on (1) ineffective assistance of counsel, (2) prosecutorial misconduct, (3) double jeopardy, (4) due process issues under Apprendi, and (5) ex post facto issues and bills of attainder.  Because we find that the appellant’s sentence was proper and that his other claimed errors are precluded because they were not raised in the direct appeal, we affirm.


            On May 17, 1997, a man wearing a dark facemask accosted R.F. in her apartment as she opened the bathroom door.  The man covered her mouth, put a gun to her head, dragged her into her bedroom and repeatedly told her to shut up or he would kill her.  He forced R.F. onto her bed, stuffed a sock in her mouth, covered her head with gray duct tape, and handcuffed her hands behind her back.  The man sexually penetrated her once vaginally and twice anally.  R.F. described the anal penetration as extremely painful.  When the man finished assaulting R.F., he wiped her body with a towel, left her blindfolded and handcuffed, and rummaged through her nightstand and purse.  This was the third in a series of nearly identical rapes in nearby counties.

            The first in the series of sexual assaults occurred May 4, 1997, in Washington County.  On April 22, 1998, a Washington County jury found appellant Tony DeJaun Jackson guilty of two counts of criminal sexual conduct in the first degree, and sentenced him as a patterned sex offender.  The second sexual assault occurred May 8, 1997, in Ramsey County.  On July 8, 1998, a Ramsey County jury found appellant guilty of criminal sexual conduct in the first degree and burglary in the first degree.  The Ramsey County court sentenced appellant to a mandatory life sentence pursuant to Minn. Stat. § 609.346, subd. 2a(1), (2) (1996).  On appeal, this court upheld both the Washington County and Ramsey County sentences.  See State v. Jackson, 596 N.W.2d 262 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999); State v. Jackson, No. CX-98-1837 (Minn. App. Sept. 7, 1999).  Appellant further challenged his Washington County sentence in a petition for postconviction relief, and we again affirmed.  See Jackson v. State, No. CX-01-36 (Minn. App. July, 17, 2001).

            On December 23, 1997, Dakota County charged appellant with three counts of criminal sexual conduct in the first degree, and one count of burglary in the first degree for the May 17, 1997 sexual assault of R.F.  On January 29, 1999, a Dakota County jury found appellant guilty on all four counts of the complaint.  A presentence investigation was prepared without a psychological evaluation.  In determining the sentence, the district court concluded that appellant had previously committed a sex offense in violation of Minn. Stat. § 609.342 (1996).  Appellant was sentenced to 360 months pursuant to Minn. Stat. § 609.346, subd. 2b (1996), for one count of criminal sexual conduct in the first degree, and 48 months for the charge of burglary in the first degree.  The sentences were ordered to be served consecutively, to each other and to the previously imposed sentences in Washington and Ramsey Counties. 

            Appellant brought an earlier appeal to this court, challenging his Dakota County convictions.  We affirmed the district court’s admittance of Spreigl evidence and the consecutive sentences on the basis that severe aggravating factors existed.  State v. Jackson, No. C3‑99-989, 2000 WL 760526 (Minn. App. June 13, 2000), review denied (Minn. Aug. 15, 2000).  On February 22, 2001, appellant submitted a pro se petition for postconviction relief.  The district court held a hearing at which appellant’s counsel submitted a motion for correction of the sentence.  The court granted the motion in part and denied it in part.  The court concluded that (1) the issue regarding the duration and consecutive nature of the sentence was procedurally barred; (2) the court’s reliance on aggravating factors when sentencing appellant did not violate his due-process rights; (3) appellant did not receive ineffective assistance of counsel; and (4) the court incorrectly sentenced appellant under Minn. Stat. § 609.346, subd. 2b.  The court then granted appellant’s motion for correction of sentence. 

Respondent brought a motion for an updated psychological evaluation of appellant prior to resentencing in order to assess whether or not appellant met the criteria of a patterned sex offender.  The court granted the motion, and Peter Marsden, Ph.D., conducted a new assessment, concluding that appellant met the criteria for a patterned sex offender. 

The resentencing hearing occurred on March 1, 2002.  At the conclusion of the hearing, the court restated the detailed findings regarding the aggravating factors that had been made at the conclusion of the trial, adopted the psychological report, and found that appellant had violated Minn. Stat. § 609.342 (1996).  The court concluded that appellant met the criteria of a patterned sex offender and sentenced him to 360 months and ten years of conditional release, the maximum statutory term for the offense of criminal sexual conduct in the first degree, with a consecutive sentence of 48 months for the burglary conviction.  Both sentences were ordered to run consecutively to the Washington and Ramsey county sentences.  This appeal follows.


Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted).  A postconviction court’s decision will not be disturbed on appeal unless the court abused its discretion.  Id.

Ineffective Assistance

Appellant claims that his counsel provided ineffective assistance because his counsel failed to advise him that the Washington County sentence lacked the mandated “patterned sex offender” finding by a psychologist and advised appellant not to challenge the sentence.

To succeed on a claim of ineffective assistance of counsel,

[t]he defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 


Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  Moreover, “[t]here is a strong presumption that a counsel’s performance falls within the wide range of reasonable professional assistance.”  Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997).

Assuming, arguendo, appellant’s assertion that he was improperly sentenced in Washington County, it is irrelevant because the district court did not rely on that sentence in imposing sentence here.  The Dakota County district court based its decision to sentence appellant as a patterned sex offender on appellant’s conduct and on the psychological examination by Dr. Marsden that concluded that appellant met the criteria for a patterned sex offender.  The court did not assume that Washington County had already made the necessary finding.

Additionally, particular deference is given to counsel regarding trial strategy.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).  Appellant’s counsel did not fall below an objective standard of reasonableness in advising appellant not to challenge his sentence.  Because appellant failed to affirmatively prove both prongs of the ineffective-assistance-of-counsel test, the district court did not abuse its discretion by rejecting this claim.

Prosecutorial Misconduct

Appellant argues that the prosecutor used false information, specifically information that Ramsey County found appellant to be a patterned sex offender, to mislead the Dakota County court and to convince appellant that he should not appeal his original sentence.  It is a violation of due process for the state to use evidence it knows to be false, or allow evidence known to be false to go uncorrected.  Napue v. Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 1177 (1959).  In Napue, the principal state witness falsely testified that he received no promise of consideration in return for his testimony, and the assistant state’s attorney did nothing to correct the false information.  Id. at 265, 79 S. Ct. at 1175.  On appeal, the supreme court held that a new trial is required if false evidence could have affected the outcome of the case.  Id. at 271, 79 S. Ct. at 1178-79. 

The record shows that in a June 20, 2001 letter written to the court and copied to appellant’s counsel, respondent incorrectly referenced a conclusion from the Ramsey County psychological evaluator’s report that appellant was a patterned sex offender.  In fact, the psychologist who conducted the examination for Ramsey County had not addressed that issue.  Respondent corrected this misstatement in a letter to the court and copied to appellant’s counsel dated October 5, 2001.  Appellant was not prejudiced by this misinformation because the district court never relied on it, instead ordering a new psychological evaluation.  No evidence from the Ramsey County psychological evaluation was ever relied on by the Dakota County court in sentencing appellant.  Therefore, appellant was not prejudiced by any claimed prosecutorial “misconduct.”

Double Jeopardy

            Appellant argues that double jeopardy bars the amendment of his sentence because respondent knew of the different sentencing options available at the initial sentencing and chose not to seek a sentence under the patterned sex-offender statute.  This court reviews the constitutional issue of double jeopardy de novo.  State v. Watley, 541 N.W.2d 345, 347 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).  Double jeopardy bars multiple punishments for the same offense.  State v. Alexander, 290 N.W.2d 745, 748 (Minn. 1980).  But double jeopardy guarantees are not violated when a trial court corrects an unauthorized sentence.  State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998).  Here, appellant’s original sentence was invalid because the statute had been repealed. 

Appellant relies on the Minnesota Supreme Court’s decision in Case v. State, 364 N.W.2d 797, 799 (Minn. 1985), which held that matters raised, or known but not raised, by a defendant on direct appeal will not be considered in a petition for postconviction relief.  He argues that because respondent had knowledge of the patterned-sex-offender statute at the time the first sentence was imposed, but chose not to seek a sentence under it, the state should be precluded from requesting such a sentence at the subsequent hearing.  The rule of law that all claims known and not raised in a previous direct appeal will be precluded from later consideration generally applies to cases where the defendant has brought a direct appeal, not where the state failed to raise a claim in the district court.  Id. at 799; see also Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999) (stating that all claims raised, or known but not raised, by a defendant on direct appeal, will not be considered upon petition for postconviction relief).  Appellant further argues that where a sentence has been set aside, the court “is limited to the sentences which it has already set for those offenses.”  State v. Prudhomme, 303 Minn. 376, 379, 228 N.W.2d 243, 245-46 (1975).  A court may at any time correct a sentence not authorized by law.  Minn. R. Crim. P. 27.03, subd. 9.  Here, the district court did not increase the sentence or charge new crimes.  The court initially sentenced appellant according to an improper statute but corrected this mistake without increasing the maximum sentence.


Appellant next asserts that the court improperly sentenced him under Minn. Stat. § 609.1352 (1996) after that section had been repealed.  A longstanding rule of statutory construction states, in part:

When a law is repealed and its provisions are at the same time reenacted in the same or substantially the same terms by the repealing law, the earlier law shall be construed as continued in active operation.


Minn. Stat. § 645.37 (2002).

            Minn. Stat. § 609.1352 was re-enacted and re-codified as Minn. Stat. § 609.108 (1998) in substantially the same terms.  Because the patterned sex-offender statute was codified as Minn. Stat. § 609.1352 at the time that the Dakota County offense occurred, its use by the court was appropriate.

Relying on Apprendi v. New Jersey, appellant argues that the Minnesota sentencing guidelines are unconstitutional because they permit a court to depart from a presumptive guideline sentence without a jury’s finding beyond a reasonable doubt any aggravating factor that could subject a defendant to an upward departure.  Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  The Apprendi Court held that any facts that increase a penalty beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.  Id

The Minnesota Supreme Court recognized and adopted the Apprendi holding in State v. Grossman, 636 N.W.2d 545 (Minn. 2001).  Grossman was convicted of and sentenced for first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342 (1998), which carries a statutory maximum sentence of imprisonment for not more than 30 years.  Id. at 549.  The court noted that, based on this statutory maximum, the jury’s guilty verdict exposed Grossman to at most, a 30-year term of confinement.  Id.  After making the additional findings required by Minn. Stat. § 609.108 (2000), by a preponderance of the evidence, the sentencing court imposed an enhanced term of 40 years.  Id.  The supreme court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.  Id. at 551. 

Neither Apprendi nor Grossman is applicable here.  As outlined by the district court in its findings of fact, the applicable statutes at the time of appellant’s Dakota County offense were Minn. Stat. §§ 609.342, .1352.  Minn. Stat. § 609.342, subd. 2, provides that the maximum sentence for a violation of this provision is 30 years in prison.  Minn. Stat. § 609.1352 provides that, if certain factors are found to be present, the court shall sentence the defendant to the statutory maximum.  Because appellant’s sentence never exceeded the statutory maximum, no due-process problem exists. 

Appellant also contends that his conduct was not significantly more serious than that typically involved in criminal sexual conduct in the first degree.  While a sentencing court should consider whether the defendant’s conduct was “significantly more or less serious than that typically involved in the commission of the crime in question,” Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (quotation omitted), the district court reiterated the aggravating factors that this court has already upheld.  State v. Jackson, No. C3‑99‑989, 2000 WL 760526, at *4-*5 (Minn. App. June 13, 2000), review denied (Minn. Aug. 15, 2000).  The record offers no support for appellant’s claim.

Ex Post Facto Laws and Bills of Attainder

            Appellant claims that sentencing under the patterned-sex-offender statute in his second sentencing hearing operated as an ex post facto law or bill of attainder.  In evaluating challenges to the constitutionality of statutes, the interpretation of statutes is a question of law.  In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).  Minnesota statutes are presumed constitutional and will be declared unconstitutional only when absolutely necessary.  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). 

            To constitute an ex post facto law, a statute must:

(1) punish as a crime an act which was innocent when committed; (2) increase the burden of punishment for a crime after its commission; or (3) deprive one charged with a crime of a defense that was available when it was committed. 


State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995) (citing Collins v. Youngblood, 497 U.S. 37, 52, 110 S. Ct. 2715, 2724 (1990)), review denied (Minn. July 20, 1995).

            The Minnesota Supreme Court has held that application of the patterned-sex-offender statute to offenses committed before August 1, 1989, would violate the constitutional prohibition.  State v. Robinson, 480 N.W.2d 644, 645 (Minn. 1992).  But appellant’s offense in this matter occurred May 17, 1997, and his previous offenses occurred within the same year.  Further, the re-codification of the statute did not create a new crime or result in an increased burden of punishment for the crime.  The relevant provisions of the statute remained unchanged.

            Appellant also argues that his second sentencing under the patterned sex-offender statute violates U.S. Const. art. 1, § 10 and Minn. Const. art. I, § 11, the prohibition against bills of attainder.  A bill of attainder is a legislative act that inflicts punishment on a specific person or a member of a specific group for an alleged crime without a judicial trial.  United States v. Lovett, 328 U.S. 303, 66 S. Ct. 1073 (1946).  The patterned-sex-offender statute does not permit the infliction of punishment without a judicial trial.  Appellant had a proper trial before being sentenced in a manner that was consistent with the mandate of the patterned-sex-offender statute.

Because we conclude that appellant’s sentence was proper and that his other claimed errors are precluded because they were available but not raised in his direct appeal, we affirm.