This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Rudolph Gordon Cooper, Jr., petitioner,
Filed July 3, 2007
Hennepin County District Court
File No. 05017030
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St Paul, Minnesota 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)
Rudolph Gordon Cooper, Jr., OID No. 165939, Minnesota Correctional Facility – Lino Lakes, 7525 Fourth Avenue, Lino Lakes, Minnesota 55014 (pro se appellant)
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant was charged on March 20, 2005, with two counts of felony driving while impaired (DWI) and one count of gross misdemeanor driving after cancellation. On May 17, 2005, appellant pleaded guilty to one count of felony first-degree DWI; the other two counts were dismissed. The district court sentenced appellant to 42 months in prison with a five-year period of conditional release.
Appellant filed a petition for postconviction relief on February 10, 2006, arguing that the five-year period of conditional release is unconstitutional because it is effectively a second sentence, which results in an ultimate sentence that exceeds the statutory maximum. The district court denied appellant’s petition for postconviction relief in its order of March 28, 2006. This appeal follows.
D E C I S I O N
defendant may petition for postconviction relief “to vacate and set aside the
judgment and to . . . grant a new trial or correct the sentence or make other
disposition as may be appropriate.”
Minn. Stat. § 590.01, subd. 1 (Supp. 2005). A petitioner seeking postconviction relief
has the burden to establish, by “a fair preponderance of the evidence,” the facts
alleged in the petition. Minn. Stat.
§ 590.04, subd. 3 (2004). In order
to meet that burden, a petitioner’s allegations must “be supported by more than
mere argumentative assertions” lacking factual support. Powers
v. State, 695 N.W.2d 371, 374 (
“A petition for postconviction
relief is a collateral attack on a conviction that carries a presumption of
regularity.” Hummel v. State, 617 N.W.2d 561, 563 (
1. Double Jeopardy
Appellant argues that Minn. Stat. § 169A.276, subd. 1(d) (2004), is unconstitutional because it violates the double-jeopardy clause of the federal and state constitutions. Specifically, appellant argues that imposition of conditional release constitutes a separate sentence because it has a separate expiration date from the prison sentence. Appellant then concludes that, because he received two different sentences and was sentenced twice for the same crime, the statute violates the double-jeopardy clause.
constitutionality of a statute presents a question of law that this court
reviews de novo. State v. Wolf, 605 N.W.2d 381, 386 (
argument that Minn. Stat. § 169A.276, subd. 1(d), violates the
double-jeopardy clause fails. First, his
claim that he was sentenced twice is not supported by the record; appellant was
sentenced once to 42 months in prison with a five-year period of conditional release. Second, mandatory imposition of conditional
release is not unconstitutional; it does not violate the double-jeopardy
clause. See State v. Calmes, 632 N.W.2d 641, 649 (
In sentencing appellant, the district court properly applied Minn. Stat. § 169A.276, subd. 1(d), which states:
Notwithstanding the statutory maximum sentence provided in section 169A.24 (first-degree driving while impaired), when the court commits a person to the custody of the commissioner of corrections under this subdivision, it shall provide that after the person has been released from prison the commissioner shall place the person on conditional release for five years.
Minnesota Statutes § 169A.24 states that the criminal penalty for a First Degree driving while impaired is that a defendant “may be sentenced for not more than seven years”; it continues that the defendant must also submit to the mandatory penalties of § 169A.276. See Minn. Stat. § 169A.24, subd. 2. The mandatory penalties include a five year period of conditional release which is “notwithstanding the statutory maximum sentence provided in section 169A.24.” See Minn. Stat. § 169A.276, subd. (1)(d).
Appellant pleaded guilty to first-degree DWI, in violation of
Minn. Stat. § 169A.24 (2004), which provides that a person convicted of
first-degree DWI “is subject to the mandatory penalties described in section
169A.276 (mandatory penalties; felony violations).”
We further note that appellant’s sentence did not exceed the terms of the plea agreement. Because appellant did not order a transcript, it is difficult to discern exactly what occurred at the sentencing hearing. But the record indicates, and appellant admits, that during the sentencing hearing, the district court informed appellant that he would be sentenced to a five-year conditional release term after serving 42 months. Furthermore, in its postconviction order the district court stated that the conditional release terms were included in appellant’s plea agreement: “In this case, the [appellant] pleaded guilty pursuant to the terms of the plea negotiation, which included as a condition a five year period of conditional release.” Thus, the sentence did not exceed the terms of the plea agreement. See State v. Jumping Eagle, 620 N.W.2d 42, 44–45 (Minn. 2000) (holding that appellant had the right to withdraw his guilty plea where the conditional release term resulted in a sentence that exceeded the upper limit of the court-accepted plea petition, thus violating that agreement); State v. Wukawitz, 662 N.W.2d 517, 528–29 (Minn. 2003). We conclude that appellant was properly sentenced.
Appellant argues that according to the sentencing guidelines, the maximum sentence he should have received under Apprendi and Blakely was 66 months. He contends that his sentence of 42 months, plus the conditional release period of 60 months, amounted to a 102-month sentence, which exceeds the 66-month maximum. Appellant argues that his sentence thus violates Apprendi and Blakely. We disagree.
Neither Apprendi nor Blakely prevents the district court from imposing the mandatory
five-year period of conditional release. See Minn.
Stat. § 169A.276, subd. 1(d) (2004).
Respondent directs us to State v.
Jones, a criminal sexual conduct case, holding that “[t]he imposition of
the 5-year conditional release term under Minn. Stat. § 609.109, subd. 7,
is permissible under Apprendi.” 659 N.W.2d 748, 753 (
3. Equal Protection and Due Process
argues that Minn. Stat. § 169A.276, subd. 1(d) (2004), violates the
equal-protection and due-process clauses of the federal and state
equal-protection argument is that no offender or group of offenders “[is]
supposed to be judged more harshly.” Appellant
contends that conditional release is unconstitutional unless it “applies to all
crimes and/or all offenders.” Appellant
provides mere assertions, without legal support or citation. “An assignment of error based on mere
assertion and not supported by any argument or authorities” is waived unless “prejudicial
error is obvious on mere inspection.” State v. Modern Recycling, Inc., 558
N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted). Even if we were to consider this argument, it
is meritless as the state has not treated similarly situated persons
differently here. See State v. Nw. Preparatory Sch., Inc., 228
Appellant further asserts that Minn. Stat. § 169A.276, subd. 1(d), also violates the due-process clause, because by adding the conditional release period, the sentence exceeded the maximum sentence under the guidelines. This argument is substantively the same as appellant’s Blakely argument and, for the reasons articulated in that portion of this opinion, we again reject appellant’s claim.
4. Conflicting Statutes
Appellant argues that Minn. Stat. § 169A.276, subd. 1(d), is unconstitutional because “it directly violates and contradicts” Minn. Stat. § 244.05, subd. 1 (2004), which provides that: except for sex offenders, the supervised release of a non-sex offender inmate “shall be equal to the period of good time the inmate has earned, and shall not exceed the length of time remaining in the inmate’s sentence.” As respondent correctly asserts, appellant confuses the terms “supervised release” and “conditional release,” which are not interchangeable. Section 244.05, subdivision 1, deals with supervised release, while section 169A.276, subdivision 1(d), refers to conditional release. The statutes do not conflict because they cover completely different concepts.
5. Guilty Plea
In his pro se brief, appellant requests that we vacate the five-year period of conditional release in his sentence; he does not request withdrawal of his guilty plea. Briefly, at the end of his petition for postconviction relief, appellant states that the district court could address the following arguments if it would like to do so, “even though [the arguments were] not specifically raised by the petitioner, such as . . . his right not to be induced to enter a plea of guilty by misunderstanding or lack of knowledge.” Appellant does not otherwise elaborate on this vague claim, and he provides no factual support for the claim. Furthermore, the district court did not address the validity of appellant’s guilty plea in its order denying appellant’s request for postconviction relief. Moreover, appellant does not argue that his guilty plea was invalid in his appellate brief, although he does assert this claim in his reply brief. Issues not raised in appellant’s brief cannot be revived in a reply brief. McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). For all of the above reasons, we decline to address this issue.
But even if
this court were to attempt to consider the validity of appellant’s guilty plea,
it is virtually impossible to do so without a transcript. And as noted earlier, appellant did not request
a transcript. As a general rule, the
appellant bears the burden of providing an adequate record. Mesenbourg
v. Mesenbourg, 538 N.W.2d 489, 494 (
Because the district court did not abuse its discretion in denying appellant’s petition for postconviction relief, and because Minn. Stat. § 169A.276, subd. 1(d) (2004), is not unconstitutional, we affirm.
 It is the appellant’s responsibility to order a transcript “of those parts of the proceedings not already part of the record which are deemed necessary for inclusion in the record.” Minn. R. Civ. P. 110.02, subd. 1(a).
 Respondent notes that the term “supervised release”
contained in the original Minn. Stat. § 609.346, subd. 5 (1992), dealing
with the period of supervision requested for sex offenders, was changed in 1993
to “conditional release.”