This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Joan Fabian, Commissioner of Corrections,
Filed May 29, 2007
Toussaint, Chief Judge
Lori Swanson, Attorney General, Kari Jo Ferguson, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2128; and
Brent D. Wartner, Director, Policy and Legal Services, 1450 Energy Park Drive, Suite 200, St. Paul, MN 55108 (for respondent)
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 Jason Charles Melin’s petition for a writ of habeas corpus. Appellant challenges a decision of respondent Joan Fabian, Commissioner of Corrections, assigning his conditional-release expiration date as his projected release date. Because we conclude that the Hearings and Release Unit (HRU) did not exceed its authority in choosing that projected release date and that it did not violate principles of determinate sentencing by doing so, we affirm.
court gives great weight to the district court’s findings in considering a
petition for habeas corpus and will uphold those findings if they are
reasonably supported by the evidence. Northwest
v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998), review denied (
argued in her brief that the department of corrections has “untrammeled
authority” to assign expiration of sentence as a release date based on Minn.
Stat. § 609.3455, subd. 8(b), which provides that if an offender violates
a condition of release, “the commissioner may revoke the offender’s conditional
release and order that the offender serve all or a part of the remaining portion
of the conditional-release term in prison.”
The rules adopted by respondent provide that
depending on the time remaining to be served on the sentence, the type of violation, and the needs of the offender, up to expiration of the sentence may be assigned as the term of re-imprisonment if there is a finding of risk to the public or if repeated violations of the conditions of release occur and the releasee is determined to be unamenable to supervision by the executive officer of hearings and release.
Appellant was sentenced in 1998 to 36 months in prison and a ten-year conditional-release term for third-degree criminal sexual conduct. He was released from prison on November 15, 1999, on supervised release, and completed his supervised-release term on October 24, 2000, when his sentence expired and he was placed on conditional release.
In 2001, appellant was convicted of four offenses: (1) terroristic threats, (2) criminal damage to property; (3) motor-vehicle tampering; and (4) failure to register as a predatory offender. In November 2002, appellant was stopped for speeding, and police found pornographic magazines and videos in his car. When appellant’s sex-offender therapist was shown the pornography, she told appellant’s probation officer that appellant would be terminated from the sex-offender treatment program and that she felt that appellant was a threat to the community and should not be treated on an outpatient basis. The probation officer instructed appellant to return to the jail until he could get the violation straightened out, but appellant allegedly failed to do so. Appellant’s girlfriend also reported that appellant had consumed alcohol ten days before the traffic stop. Based on these four alleged violations of appellant’s conditions of probation, a revocation report was issued and a hearing held on December 9, 2002, before the HRU.
Appellant’s primary challenge is to the April 2004 decision to assign him expiration of the conditional-release term as his projected release date. The HRU decision in December 2002 set a projected release date for a year later. But the order provided that appellant could be re-released only upon successful completion of sex-offender treatment and only if he had no major disciplinary infractions.
was admitted to the sex-offender treatment program at
record of positive accomplishments while in prison and on release, the HRU
found he was a risk to the public in December 2002, when conditional release
was initially revoked. The HRU report noted appellant’s possession of sexually
explicit material while on conditional release and found that, although the
material involved adults, there were concerns about the material because it
“appeared to act out and portray women within the age group of [appellant]’s victim
pool.” The report also cited the concern
of appellant’s sex-offender therapist that appellant “continues to be a threat
to the community.” The report also noted
Appellant points to his completion of a short-term sex-offender treatment program before his initial release from prison, his completion of a chemical-dependency treatment program in prison, his full-time employment upon release from prison, and participation in community sex-offender treatment upon release. But appellant was convicted of four new offenses in 2001, and, although none of these was a sexual offense, they did indicate a risk to the public, along with appellant’s continued involvement in pornography, which led to his termination from the community sex-offender treatment program. We conclude that this evidence is sufficient to support the HRU’s determination that appellant is a risk to public safety unless he completes sex-offender treatment.
argument is that the record does not support a finding that he is unamenable to
supervision. But the HRU did not make
this finding, which is an alternative basis for assigning expiration of
sentence (if there are also repeated violations of the conditions of
argues that the HRU violated the rule by failing to consider the time remaining
in his sentence, the type of violations he committed, and appellant’s own
needs. The rule, however, does not
require explicit consideration of those factors. See
that this assignment of expiration of the conditional-release term as his projected
release date constitutes indeterminate sentencing, in violation of this state’s
policy of determinate sentencing. But as
the district court found, appellant has not been reimprisoned for an
indeterminate period. He cannot be held
in custody past the October 25, 2009 expiration date of his conditional-release
term. This decision complies with the department
of corrections’s rules and reimprisons appellant for an “appropriate period of
time,” as required by Minn. Stat. § 244.05, subd. 3(2) (2004), unless
appellant completes sex-offender treatment.
The resulting time that appellant may serve for his conditional-release
violations may be disproportionate to his original sentence. But appellant has the chance to reduce that
time by an early completion of sex-offender treatment. And the legislature has provided that, in
general, “conditional release of sex offenders is governed by provisions
relating to supervised release.”
Appellant has not shown that respondent exceeded her authority in reimprisoning him to the expiration of his conditional-release term unless he completes sex-offender treatment. Therefore, the district court properly denied appellant’s petition for a writ of habeas corpus.