This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Lyle David Mlenek,



Filed January 17, 2006


Shumaker, Judge


Waseca County District Court

File No. K4-04-437




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


Brenda Lee Miller, Assistant Waseca County Attorney, Waseca County Courthouse, 307 North State Street, Waseca, MN 56093 (for respondent)


Stanley H. Nathanson, 15560 FLW Boulevard, No. 143, Scottsdale, AZ 85260 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Wright, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant contends that his sentence to life imprisonment for certain sex offenses was an ex post facto punishment in violation of his constitutional rights and he argues that his life sentence should be vacated.  We affirm.


Appellant Lyle David Mlenek has been convicted of five felony sex offenses, namely, three counts of first-degree intrafamilial sexual abuse in 1983 in violation of Minn. Stat. § 609.3641, subd. 1(1) (1982); one count of first-degree criminal sexual conduct in 1987 in violation of Minn. Stat. § 609.342, subd. 1(g) (1986); and one count of first-degree criminal sexual conduct in 2005 in violation of Minn. Stat. § 609.342, subd. 1(a) (2004).

Upon Mlenek’s 2005 conviction, the district court imposed a sentence of life imprisonment under Minn. Stat. § 609.109, subd. 3(a)(3)(iii) (2004), which provides a mandatory life sentence when an accused is indicted by a grand jury and convicted under section 609.342 and has two prior sex-offense convictions under sections 609.342, 343, or .344 (1986).

Mlenek contends that his 1983 convictions occurred before the enactment of section 609.109, subd. 3(a)(3)(iii) and, therefore, those offenses cannot count as previous convictions for purposes of the mandatory life sentence law.  He further argues that to count those convictions would be to impose an unconstitutional ex post facto punishment.


We review de novo the question of whether the district court properly construed a sentencing statute.  State v. Wukawitz, 662 N.W.2d 517, 525 (Minn. 2003). 

Mlenek fails to cite any legal authority for his proposition that his sentence is an unconstitutional ex post facto punishment.  Ordinarily issues not supported by authority on appeal are deemed waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).  And an assignment of error based on mere assertion is considered waived unless prejudicial error is apparent on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (citation omitted).  Nevertheless, in the interests of justice we may review issues as to which legal support has not been provided.  State v. Hannuksela, 452 N.W.2d 668, 673, n.7 (Minn. 1990) (citation omitted). 

The district court counted Mlenek’s 1983 convictions under section 609.3641, subd. 1(1) (1982), as qualifying as a previous sex offense for purposes of the application of the mandatory life imprisonment statute.  However, Minn. Stat. § 609.109 (2004) provides that only convictions under sections 609.342, .343, or .344 qualify as previous convictions.

In 1985, the legislature repealed the intrafamilial sexual abuse statutes, including Minn. Stat. § 609.3641 under which Mlenek was convicted in 1983.  Contemporaneously, the legislature added criminal penalties to the criminal sexual conduct statutes for the conduct previously separately classified as intrafamilial sexual abuse.  Thus, the crimes of which Mlenek was convicted in 1983 were merged with the criminal sexual conduct statutes, recodified as Minn. Stat. § 609.341-.345 (1986).  And in State v. Robinson, 476 N.W.2d 896, 900 (Minn. App. 1991), aff’d as modified, 480 N.W.2d 644 (Minn. 1992), we held that a conviction under the repealed intrafamilial sexual abuse statute constituted a previous sex offense conviction under sections 609.342, .343, or 344, for purposes of sentencing.  Thus, the district court did not err in counting Mlenek’s 1983 convictions toward the qualifying previous sex offense convictions under the mandatory life sentence law.

The United States and Minnesota constitutions forbid a state to enact an ex post facto law.  U.S. Const. art. I, § 10 cl. 1; Minn. Const. art. I, § 11.  To be determined to be an ex post facto law, a statute must apply to events that occurred before its enactment and must disadvantage the offender affected by the new law.  State v. Burns, 524 N.W.2d 516, 519 (Minn. App. 1994) (citation omitted).  But there is no ex post facto violation if the change effected by the new statute is merely procedural and does not change the elements of an offense, increase the punishment, or change the ultimate facts necessary to establish guilt. 520 (citation omitted).

The use of a prior conviction to enhance the punishment for an underlying substantive offense committed after the enactment of a statute that provides an increased penalty for the current offense if there were qualifying prior offenses does not result in an ex post facto violation.  Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258 (1948); State v. Willis, 332 N.W.2d 180, 185 (Minn. 1983).

In 1998, the legislature repealed the former mandatory life-imprisonment law, Minn. Stat. § 609.346 (1996), which had been in effect since 1975, and recodified it as Minn. Stat. § 609.109 (1998).  This recodified law was in effect when Mlenek was convicted of criminal sexual conduct in 2005.  Section 609.109 does not increase any penalty for a crime prior to its enactment but rather enhances the punishment for qualifying subsequent crimes.  Mlenek’s punishment is for his 2005 conviction as enhanced by his qualifying previous convictions.  This enhancement does not violate the ex post facto prohibition of either the federal or state constitution.  Willis, 332 N.W.2d at 185.