This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Thomas E. Kittrell,



Filed October 7, 2003


Gordon W. Shumaker, Judge


Steele County District Court

File No. K698259





James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Douglas L. Ruth, Steele County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent)


Thomas E. Kittrell, MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN  55767 (pro se appellant)



            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


This appeal of the denial of appellant Thomas Kittrell’s motion to correct his sentence has been remanded by the supreme court for reconsideration in light of that court’s decision in State v. Jones, 659 N.W.2d 748 (Minn. 2003).  Because we conclude that Kittrell’s conditional-release term must be vacated, we reverse. 


            Appellant Thomas Kittrell was charged in 1998 with two counts of second-degree assault and two counts of attempted kidnapping.  Kittrell agreed to plead guilty to both counts of second-degree assault in exchange for dismissal of the attempted-kidnapping charges.  It was agreed that Kittrell would receive an aggregate sentence of 126 months.  Kittrell stipulated that the district court, based on the record, including Kittrell’s criminal history, would determine whether he was a patterned sex offender.  The stipulation provided that Kittrell would not offer any evidence or argument on that issue.

            After reviewing the stipulated record, the district court concluded that Kittrell was a patterned sex offender.  The court sentenced him to 126 months, of which 84 months were to be served in prison and 42 months on supervised release.  The court ordered Kittrell to provide a DNA sample, register as a sex offender, and pay restitution.

            Kittrell filed a motion to correct his sentence, challenging the district court’s determination that he was a patterned sex offender.  The district court denied the motion, and Kittrell appealed.  In accepting jurisdiction over the appeal, this court limited the scope of review to sentencing and sentencing-related issues.

            In its earlier opinion, this court affirmed the district court’s conclusion that Kittrell is a patterned sex offender.  State v. Kittrell, No. C9-01-2182 (Minn. App. Nov. 12, 2002), review granted (Minn. Jan. 21, 2003), remanded (Minn. May 20, 2003).  As to conditional release, this court held that because Kittrell had already been sentenced to the statutory maximum 84 months on Count I, “the addition of ten years conditional release would violate the plea agreement and Apprendi.”  But the court concluded that the conditional release term could be reduced to 42 months and made to run concurrently with the supervised release term of the same duration, and that sentence would not violate the plea agreement or Apprendi.

            The supreme court granted the state’s petition for further review, which challenged this court’s Apprendi ruling and argued that Kittrell had waived the Apprendi issue when he agreed to let the court decide whether he was a patterned sex offender.  The supreme  court has remanded the appeal for consideration in light of State v. Jones, 659 N.W.2d 748 (Minn. 2003).


            In Jones, the supreme court held that conditional-release terms are “constitutionally significant” for purposes of Apprendi but that a mandatory conditional release term can be imposed if it results solely from conviction of the offense.  State v. Jones, 659 N.W.2d 748, 754 (Minn. 2003).  The court reasoned that because conditional-release terms are mandated for defendants convicted of certain offenses, they are part of the statutory maximum sentence for those crimes, and therefore are “authorized [solely] on the basis of the jury verdict” that the defendant is guilty of the crime.  Id.

            Kittrell was not convicted of a criminal sexual conduct offense for which a conditional-release term was mandated, as was the defendant in Jones.  Kittrell was convicted only of second-degree assault, an offense for which the statute does not mandate any conditional-release term.  See Minn. Stat. § 609.222 (1996).  No conditional-release term could have been imposed on Kittrell except under the patterned-sex-offender statute, Minn. Stat. § 609.1352, subd. 5 (1996).  But that statute operates in violation of Apprendi to increase the sentence beyond the ordinary statutory maximum based on a judicial finding.  State v. Grossman, 636 N.W.2d 545, 551 (Minn. 2001).  Therefore, no conditional-release term can be imposed on Kittrell.

            This court’s prior opinion modified the conditional-release term to 42 months (to be served concurrent with the supervised-release term) to make it “fit” within the statutory maximum and within the plea agreement.  The supreme court has held that conditional-release terms may be modified to make them “fit” within the sentence agreed on in the plea agreement.  State v. Wukawitz, 662 N.W.2d 517, 528-29 (Minn. 2003).  But the supreme court limited its holding to that fact situation.  Id. at 529.  And it defended the holding only as the result that did the least violence to the legislative intent.  Id. at 528.  Here, there is no occasion to modify the conditional-release term to comply with legislative intent because Apprendi and Grossman hold that the statute as applied is unconstitutional.

            The state argues that by pleading guilty and agreeing to a determination by the district court of whether he was a patterned sex offender, Kittrell waived the Apprendi issue.  But the Apprendi court did not indicate that its holding was limited to defendants who exercised their rights to a jury trial.  In fact, the defendant in Apprendi pleaded guilty to the offense for which he was sentenced.  Apprendi v. New Jersey, 530 U.S. 466, 469-70, 120 S. Ct. 2348, 2352 (2000).

            Even if Kittrell’s guilty plea could constitute a waiver of the Apprendi claim, he never agreed to a sentence beyond the ordinary statutory maximum.  And, because Apprendi was released only two weeks before Kittrell’s plea and had not yet been applied to Minnesota’s pattered sex offender statute, any waiver could not have been knowing and intelligent.

            Apprendi applies to conditional-release terms.  Because Kittrell was sentenced to a conditional-release term in addition to the statutory maximum sentence on Count I, and because, unlike in Jones, there is no other authority for imposing the conditional-release term that does not rely on a judicial finding, Kittrell’s 10-year conditional-release term must be vacated. 

            Kittrell argues two other issues:  (1) the Apprendi implications of DNA sampling and sex-offender registration imposed pursuant to the patterned-sex-offender statute; and (2) a double-jeopardy claim.  The double jeopardy claim is not a sentencing issue, and therefore is beyond the scope of this appeal.

            The Apprendi implications of DNA sampling and sex-offender registration are not within the scope of the supreme court’s remand.  This court’s prior opinion noted that those requirements are not punitive and do not extend Kittrell’s sentence.  The state’s petition for further review, which was the only petition granted by the supreme court, did not challenge that determination.  Accordingly, we decline to consider appellant’s challenge.