This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed May 23, 2006
Minnesota Office of Administrative Hearings
Agency File No. 1-1100-16114-2
John M. Stuart, Minnesota Public Defender, F. Richard Gallo, Jr., Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Angela M. Helseth, Assistant
Attorney General, 1800
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*
By writ of certiorari,
relator challenges the determination of the Department of Corrections
administrative-law judge that relator is required to register as a “predatory
offender” and that the End-of-Confinement Review Committee (ECRC) had authority
to assign him a risk level, arguing that his convictions do not qualify him for
predatory- offender registration and that the reversal of his felony conviction
nullified the prison sentence and, therefore, deprived the ECRC of jurisdiction
to assign a risk level. Because we
conclude that relator’s
July 2003, relator Kenneth Dale Stark allegedly exposed himself to an
eight-year-old girl near a park in
Relator pleaded guilty to the offense and was sentenced to 21 months in prison. While incarcerated, relator underwent a risk-level assessment and was assigned a Risk Level III by the ECRC pursuant to its authority under Minn. Stat. § 244.052 (2004). Relator was assigned the highest risk level based on his extensive history of inappropriate sexual behavior, including several out-of-state convictions of sexual offenses. Relator’s assignment of a risk level triggered statutory community notification upon release from prison.
Relator appealed his
conviction, arguing that the district court should have dismissed the felony
charge on the ground that his 1992
Upon reversal of his felony conviction, relator was released from prison and appealed the assignment of a risk level to a Department of Corrections (DOC) administrative-law judge (ALJ), arguing that the ECRC lacked statutory authority to assign him a risk level because he was not a “predatory offender” requiring registration and that his confinement was improper given the reversal of his felony conviction.
Following written submissions by the parties, the ALJ determined that relator was a “predatory offender” required to register under Minn. Stat. § 243.166, based on his prior Nebraska and South Dakota convictions; and that the ECRC had a legal basis to set the risk level because, at the time of its assessment, relator was lawfully confined. The ALJ concluded that the ECRC had jurisdiction to assign relator a risk level. Relator appealed by writ of certiorari.
D E C I S I O N
raises two arguments on appeal. First,
relator argues that he was not required to register as a “predatory offender”
at the time of the ECRC’s risk-level determination because his convictions were
not qualifying offenses under Minn. Stat. § 243.166 (2004). Respondent contends that relator was required
to register as a “predatory offender” at the time of his risk-level assignment
based on his
of statutory interpretation are reviewed de novo. In re Risk
Level Determination of C.M., 578 N.W.2d 391, 395 (
A “predatory offender” means a person who is required to register as a predatory offender under Minn. Stat. § 243.166. Minn. Stat. § 244.052, subd. 1(5) (2004). Minn. Stat. § 243.166, subd. 1(b) (2004), provides that a person shall register as a predatory offender if: (1) the person was convicted of or adjudicated delinquent in another state for an offense that would be a violation of a law described in paragraph (a) if committed in this state; (2) that person enters the state to reside, or to work or attend school; and (3) ten years have not elapsed since the person was released from confinement or, if the person was not confined, since the person was convicted or adjudicated delinquent for the offense that triggers registration.
Relator concedes that his
Minn. Stat. § 243.166, subd. 1(b), does not define “reside.” Words and phrases lacking express statutory definition “are construed . . . according to their common and approved usage.” Minn. Stat. § 645.08(1) (2004); see also State v. Diedrich, 410 N.W.2d 20, 23 (Minn. App. 1987) (citation omitted). The dictionary defines “reside” as, “[t]o live in a place permanently or for an extended period.” The American Heritage Dictionary 1483 (4th ed. 2000); see also Black’s Law Dictionary 1308 (6th ed. 1990) (defining reside as to “live, dwell, abide, sojourn, stay, remain, lodge . . . [or] have a settled abode for a time”).
argues that his incarceration in a
the fundamental purpose of the registration statute is to gather information
and aid law enforcement in tracking offenders and investigating sexual
offenses. State v. Lilleskov, 658 N.W.2d 904, 908 (
The third requirement for
registration based on out-of-state convictions under Minn. Stat. § 243.166 is
that ten years have not elapsed since the person was released from confinement
or, if not confined, since the person was convicted. Minn. Stat. § 243.166, subd.
1(b)(3). Although the precise date of
relator’s release is unclear, the date of release was no earlier than July
1994. Here, relator appeared before the
ECRC on June 21, 2004, which was about ten days before the expiration of his
requirement to register for the
Second, relator argues that
he does not qualify for community notification in
“Whether an agency has
jurisdiction over a matter is a legal question and, therefore, a reviewing
court need not defer to agency expertise.”
In re License Application of N.
Metro Harness, Inc., 711 N.W.2d 129, 134 (
The Minnesota Supreme Court has stated:
Jurisdiction of an administrative agency consists of the powers granted it by statute. Lack of statutory power betokens lack of jurisdiction. It is therefore well settled that a determination of an administrative agency is void and subject to collateral attack where it is made either without statutory power or in excess thereof.
Under the Sex Offender
Community Notification Act codified as Minn. Stat. § 244.052 (2004), the
ECRC has statutory authority to determine the offender’s risk level at least 90
days before an offender’s release from confinement. Minn. Stat. § 244.052, subd. 3(d). “Confinement” means “confinement in a state
correctional facility or a state treatment facility.”
notification statute empowers the law-enforcement agency in “the area where the
predatory offender resides, expects to reside, is employed, or is regularly
found” to disclose to the public, any information that the agency deems
“relevant and necessary to protect the public and to counteract the offender’s
Here, there is no dispute that Minn. Stat. § 244.052 gives the ECRC statutory authority to assign a risk level to soon-to-be-released “predatory offenders” and that, at the time of its assignment, relator’s felony conviction and prison sentence were not yet overturned. The issue is whether the later reversal of relator’s felony conviction and prison sentence invalidates the ECRC’s assessment and assignment of relator’s risk level.
“events occurring after attachment of jurisdiction do not divest a court of a previously
and correctly acquired ability to decide a case.” Berke
v. Resolution Trust Corp., 483 N.W.2d 712, 716 (Minn. App. 1992), review denied (Minn. May 21, 1992). In the case of In re Ivey, 687 N.W.2d 666 (Minn. App. 2004), the relator
challenged the district court’s order of civil commitment, arguing that he
would not have agreed to extradition and would not have been subject to the DOC’s
authority to file a petition for civil commitment, but for the ten-year
conditional-release term later found to be defective.
We believe that the reasoning of the Ivey court applies equally to this case. When the ECRC performed its risk-level assessment and assigned relator to risk-level III, relator was properly confined pursuant to his sentence for felony criminal sexual conduct. Consequently, the subsequent reversal of relator’s felony conviction does not affect the validity of the ECRC’s risk-level assignment.
argues that the reversal of his felony conviction nullified his sentence
and his confinement, requiring that his “slate” be cleaned of all consequences
resulting therefrom. See In re Reutter, 474 N.W.2d 343, 345 (
relator’s risk-level assignment triggers community notification, which serves
the statutory purpose of transmitting information “relevant and necessary to
protect the public.” Minn. Stat. §
244.052, subd. 4. This purpose would not
be served by invalidating the risk-level assignment, particularly given that
the risk-level assessment, and the resulting assignment, are based on an
in-depth examination of an offender’s entire record and analysis of various statutory
risk factors, as opposed to simply the conduct underlying the reversed
Because relator was required to register as a predatory offender based on his Nebraska conviction at the time of the ECRC’s risk-level assignment and a later reversal of relator’s Minnesota conviction does not retroactively deprive the ECRC of jurisdiction to assign a risk level, we conclude that the ALJ did not err in determining that the ECRC had jurisdiction to assign relator a risk level.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.