This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota, ex rel. William F. Dye, petitioner,





Joan Fabian, Commissioner of Corrections,



Filed May 3, 2005

Reversed and remanded

Toussaint, Chief Judge

Dissenting, Kalitowski, Judge


Chisago County District Court

File No. CV-04-126



Bradford William Colbert, Nathaniel Hines, Certified Student Attorney, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN  55105 (for appellant)



Mike Hatch, Attorney General, Elizabeth Richter Scheffer, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, Minnesota 55101 (for respondent)



            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Klaphake, Judge.


U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge

            This expedited appeal is from an order denying appellant’s petition for a writ of habeas corpus.  Because we conclude that respondent is improperly extending appellant’s reimprisonment based on a request appellant seeks to withdraw, we reverse and remand.


            This court gives great weight to the district court’s findings in considering a petition for habeas corpus and will uphold those findings on appeal if they are reasonably supported by the evidence.  State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).  This court, however, reviews questions of law de novo. State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn. App. 1993), review denied (Minn. Mar. 11, 1993).

Appellant William F. Dye was sentenced in 1981 to 298 months for second-degree murder.  On May 13, 1998, Dye was released under certain conditions, including residential treatment, electronic home monitoring, intensive supervised release, and chemical dependency programming “as directed.”  Over the next several years, he violated his conditions of supervised release a number of times and was reimprisoned for various periods.

            In November 2002 Dye tested positive for cocaine.  The Department of Corrections’ (DOC’s) Hearings and Release Unit (HRU) held a hearing in December 2002, at which the decision was made to reimprison Dye for 365 days, with a treatment-incentive provision that if Dye completed the Triad treatment program, he would be released after 270 days.  Dye entered the Triad program but was later terminated from the program.

            Two days after the termination, Dye’s attorney conveyed to the executive director of HRU Dye’s request that he be “assigned expiration of sentence.”  The executive director granted the request, informing Dye that he could seek reconsideration “by requesting a review hearing if and only if he remains free of major discipline convictions and has successfully completed the Triad Chemical Dependency Treatment Program.”

            An annual progress program review was held on February 9, 2004.  The HRU officer noted that Dye had not completed Triad and concluded that “[t]he contingencies will remain in effect.  Further reviews can be handled through administrative reviews unless directives are completed by Offender Dye.”  Dye’s request to re-enroll in Triad was denied. 

            Dye argues that the DOC lacked authority to reimprison him to the expiration of sentence but was required instead to assign him a definite term of reimprisonment.  He also argues that the DOC has improperly conditioned his release on completion of a treatment program that terminated his participation and has refused to readmit him.

             The DOC may reimprison an offender until the expiration of his sentence if he is convicted of a felony.  Minn. R. 2940.3800 C (2003).  It may also reimprison an offender up to expiration “depending on the time remaining to be served on the sentence, the type of violation, and the needs of the offender.”  Id., D.  This decision, however, must be based on a finding of risk to the public or, if there have been repeated violations of the conditions of release, a determination that the offender is unamenable to supervision.  Id.

            The DOC initially decided Dye would be reimprisoned to expiration in February 2003, after Dye requested that sanction.  If Dye had later had a full review of the length of that reimprisonment, and the appropriate findings had been made, the length of Dye’s reimprisonment would not be subject to challenge.  But that has not occurred.

            Respondent argues that Dye fits the latter category of offenders who may be assigned expiration.  But, although Dye has violated his release conditions several times, he has not been found to be a risk to the public or to be unamenable to supervision.  Respondent has broad authority to reimprison Dye for violations of his conditions of supervised release.  See State v. Schwartz, 628 N.W.2d 134, 138-39 (Minn. 2001).  But Dye’s current status of reimprisonment through expiration is based on his own request (and failure to comply with conditions for withdrawing the request), not on any findings by HRU.  We conclude that without the appropriate findings Dye’s current imprisonment status cannot be maintained in the face of Dye’s present objections, which represent a withdrawal of his earlier request to be reimprisoned through expiration.

            The HRU conducted an annual progress review in February 2004.  But progress reviews are directed at an inmate’s supervisory needs and assume the validity of his incarceration; they are not a means to challenge his custody status.  See Minn. R. 2940.0900.  And release of the inmate is not one of the authorized outcomes of such a hearing.  Id., subp. 2.  The report of the February 2004 progress review indicates that the question of Dye’s custody status was discussed.  But there is no indication that at that time the February 2003 decision to reimprison Dye to expiration was under review.  And there is no transcript of the hearing in the file.

            Thus, the record indicates that Dye did not receive a meaningful review of the decision to reimprison him to expiration at the February 9, 2004 hearing, a review to which we conclude he is entitled.  HRU’s position that Dye cannot request a review hearing unless he completes Triad (and remains free of major discipline violations) is not supported by the rules.  Under that position, Dye is precluded from obtaining a procedural remedy (a review hearing) unless he satisfies a substantive condition (completion of Triad).  Respondent cites no legal authority to support that result.

            We conclude that the district court’s findings in denying Dye’s petition for a writ of habeas corpus are not reasonably supported by the record, and the order must be reversed.  We remand the matter to the respondent for a hearing pursuant to this opinion.  We do not address Dye’s argument that his release cannot be conditioned on his completion of Triad due to his termination from that program or its refusal to readmit him.

            Reversed and remanded.

KALITOWSKI, Judge (dissenting)

            I respectfully dissent.  Appellant has not argued in this appeal, or in any of the proceedings before the Department of Corrections or the district court, that he was not afforded a hearing to review the decision to reimprison him to expiration.  Thus, this issue is not properly before us.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (a reviewing court generally will not decide issues not raised before the district court).

In addition, it is undisputed that the decision to reimprison appellant to expiration was made and communicated to appellant on February 25, 2003, based on:  (1) appellant’s formal request to be so sentenced; and (2) appellant’s failure “to meet the contingency for re-release established at the revocation hearing.”  Moreover, in addition to failing to complete treatment, which was a condition for his re-release, the record indicates that (1) appellant has had ten release violations, including a determination that he used cocaine in November of 2002; and (2) on June 27, 2001, the Hearings and Release Officer specifically found that appellant is “unamenable to supervision.”

            The Commissioner of Corrections has the authority to assign reimprisonment for “up to expiration of the sentence” if “repeated violations of the conditions of release occur and the releasee is determined to be unamenable to supervision.”  Minn. R. 2940.3800, subp. D (2003).  And this court is required to give great weight to the district court’s findings in considering a petition for habeas corpus and will uphold those findings on appeal if they are reasonably supported by the evidence.  State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).  Therefore, on this record, I would affirm the district court’s determination that appellant’s term of revocation was appropriate and within the Department of Corrections’ discretion.