This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Edgar Earl Lenear,



Filed August 24, 2004

Affirmed in part and remanded in part

Kalitowski, Judge


Hennepin County District Court

File No. 02081050


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Theodora Gaïtas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Wright, Presiding Judge; Randall, Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his convictions of first-degree criminal sexual conduct, arguing that the extension of the statute of limitations after the offenses were committed was an unconstitutional ex post facto law.  Appellant also challenges the upward durational sentence imposed by the district court.  We affirm in part and remand in part.




            In evaluating constitutional challenges, the interpretation of a statute is a question of law. In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993).  One who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality.  Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn. 1979).  An appellate court’s power to declare a statute unconstitutional is to be exercised only when absolutely necessary and then with extreme caution.  In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).

Both the United States and Minnesota Constitutions prohibit the enactment of ex post facto laws, which render “an act punishable in a manner in which it was not punishable when it was committed.”  Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955).  An ex post facto law applies to events occurring before its enactment and disadvantages the offender.  Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964 (1981).  Specifically, to violate the ex post facto clause, 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 the crime was committed.”  Murray v. Cisar, 594 N.W.2d 918, 921 (Minn. App. 1999) (citing Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct. 2715, 2719 (1990)), review denied (Minn. Aug. 18, 1999).

            This court has previously held that “the legislature’s retroactive extension of the limitations period does not violate the ex post facto prohibition if prosecution is not yet time barred.”  State v. Burns, 524 N.W.2d 516, 520 (Minn. App. 1994), review denied (Minn. Jan. 13, 1995).  In Burns, the court reasoned that the statute of limitations becomes a defense or protection from prosecution only after the limitations period has elapsed.  Id. at 519.  Because the facts here are very similar to the facts in Burns, we conclude that Burns is controlling.

Here, as in Burns, appellant committed a criminal sexual conduct crime.  The offense occurred on November 11, 1993.  In 1993, the statute of limitations for the offense was seven years.  Minn. Stat. § 628.26(d) (Supp. 1993).  But prior to the expiration of the statute of limitations, the legislature extended the statute of limitations for appellant’s offense to nine years.  Minn. Stat. § 628.26(d) (Supp. 1995).  The legislature specified that the new limitations period, which was effective July 1, 1995, “applie[d] to crimes committed on or after that date, and to crimes committed before that date if the limitations period for the offense did not expire before July 1, 1995.”  1995 Minn. Laws ch. 226, art. 2 § 38.  Because the statute of limitations had not yet expired on appellant’s 1993 offense, this amendment extended the statute of limitations on that offense to nine years.  Therefore, under the new amendment, appellant had to be charged with the offense no later than November 11, 2002.  Because appellant was charged on October 22, 2002, the statute of limitations had not yet expired.  And because the 1995 extension of the statute of limitations occurred before the 1993 statute of limitations had expired, it survives appellant’s ex post facto challenge.

Appellant argues that Burns was incorrectly decided because the Minnesota Supreme Court has held that statutes of limitations are both procedural and substantive.  State v. Johnson, 514 N.W.2d 551, 555 (Minn. 1994).  But this court addressed the identical argument in Burns and concluded that “[a]s a matter of constitutional law, however, statutes of limitations go to matters of remedy, not to destruction of fundamental rights.”  524 N.W.2d at 520.  The court went on to say that the “procedural aspects of the statute of limitations predominate . . . where the limitations period on the underlying offense had not yet expired.”  Id.  Appellant also cites Stogner v. California for the proposition that the Supreme Court has abandoned the procedural/substantive analysis in determining ex post facto claims.  123 S. Ct. 2446 (2003).  But that case is factually distinguishable in that the statute of limitations on the underlying offense in Stogner had expired prior to an amendment extending the statute of limitations.  Id. at 2449.  And the Court noted that state courts have consistently distinguished situations where limitations periods have expired prior to the extension of the statute of limitations.  Id. at 2453.  We conclude that the district court correctly determined that the 1995 amendment to the statute of limitations did not violate the ex post facto clause with respect to appellant’s 1993 offense.


Appellant also argues that the district court abused its discretion in sentencing him to a quadruple upward durational departure. 

            After this appeal was briefed, the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004), holding that an upward departure under Washington’s determinate sentencing scheme violated the defendant’s Sixth Amendment right to a jury trial.  Appellant has cited Blakely in a letter to this court, but the application of that opinion to the Minnesota Sentencing Guidelines, and to appellant’s sentence, has not been briefed.  See Minn. R. Civ. App. P. 128.05 (allowing citation of supplemental legal authority without argument).  Appellant did not request supplemental briefing, and we conclude that the interests of justice do not warrant addressing Blakely for the first time on appeal without any briefing on the issue.  See generally State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (declining to address constitutional issue not fully briefed and not litigated in district court).  Accordingly, we remand to the district court for a consideration of the application, if any, of Blakely to appellant’s sentence.

Affirmed in part and remanded in part.