This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Ramsey County District Court
File No. K7013861
Mary M. McMahon, McMahon & Associates Criminal Defense,
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, Ramsey County Government Center West, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Huspeni, Judge.*
Appellant challenges the denial of his petition for postconviction relief in which he argued that addition of a conditional-release term violated his Sixth Amendment right to a jury determination of factors affecting the length of his sentence. We affirm.
Appellant Julian Garcia Cordova, who
was convicted of first-degree criminal sexual conduct in December 2002, was
sentenced to 144 months in prison with a five-year conditional-release
provision. On direct appeal, Cordova
asserted evidentiary error, prosecutorial misconduct, and violation of his
right to a speedy trial. State v. Cordova, No. A03-596, 2004 WL
1326249, at * 1 (Minn. App. June 15, 2004), review
“The scope of review of a
postconviction proceeding is limited to determining whether there is sufficient
evidence to sustain the postconviction court’s findings, and a postconviction
court’s decision will not be disturbed absent an abuse of discretion.” Hale v.
State, 566 N.W.2d 923, 926 (
direct appeal has once been taken, all matters raised therein, and all claims
known but not raised, will not be considered upon a subsequent petition for
postconviction relief.” State v. Knaffla, 309
v. New Jersey, in which the United States Supreme Court held that “[o]ther
than the fact of a prior conviction, 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,” was released in 2000. 539
decline to review the issue Cordova presents on appeal because he raised a
different challenge to imposition of conditional relief in the district
court. “This court generally will not
decide issues which were not raised before the district court, including
constitutional questions of criminal procedure.” Roby v.
State, 547 N.W.2d 354, 357 (
Because the imposition of conditional release under Minn. Stat. § 609.109, subd. 7, is a mandatory aspect of the sentence to be imposed by the district court for offenders convicted of criminal sexual conduct, the conditional release period is part of the maximum sentence that an offender may receive for his crime.
N.W.2d 631, 634 (
On appeal, Cordova does not focus on the constitutionality of the imposition of conditional release, and rather focuses on the constitutionality of Minn. Stat. § 609.109, subd. 7(b), which provides that:
[i]f the offender fails to meet any condition of release, the commissioner may revoke the offender’s conditional release and order that the offender serve the remaining portion of the conditional release term in prison. The commissioner shall not dismiss the offender from supervision before the conditional release term expires.
Appellant argues that (1) time served for violating a condition of release is unrelated to the underlying crime or the facts supporting the conviction; (2) the provision allows the executive branch, rather than the judicial branch, to control the length of his sentence; and (3) the procedure deprives him of a jury determination beyond a reasonable doubt of factors that increase his sentence.
We first note that this issue is not
ripe because Cordova is not on conditional release from prison, has not been
alleged to have violated a condition of release, release has not been revoked
by the commissioner, and Cordova is not appealing a release revocation. “Issues which have no existence other than in
the realm of future possibility are purely hypothetical and are not
justiciable. Neither the ripe nor the
ripening seeds of a controversy are present.”
Lee v. Delmont, 228
Furthermore, even if we were to
address the merits of the argument, we note that the supreme court has
previously rejected a claim that Minn. Stat. § 609.109, subd. 7,
unconstitutionally permits the commissioner to control conditional-release
revocation, by usurping and interfering with judicial functions. State
v. Schwartz, 628 N.W.2d 134, 140-41 (
[P]ost-release control is part of the sentence imposed by the judiciary, and the executive branch’s authority to impose sanctions during release does not impede the judiciary’s sentencing authority. . . . [T]he executive branch’s discretion to impose sanctions during release comports with the long-standing practice of affording the executive branch absolute discretion over the release portion of an offender’s sentence. Moreover . . . the post-release control sanctions are not mere punishment for another crime, but rather for behavior modification and reintegration of the offender into the community. For these reasons . . . the executive branch’s discretionary power to compel post-release control sanctions does not violate separation of powers.
Cordova cites State v. Brown, 606 N.W.2d 670 (
decline to consider Cordova’s pro se argument because he failed to raise the
issue in his direct appeal. State v. Knaffla, 309
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.