This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1998).




Clark Bailey Kruger, petitioner,



State of Minnesota,


Filed May 18, 1999


Anderson, Judge

Hennepin County District Court

File No. 67182

Clark A. Kruger, MCF- Stillwater, 970 Pickett Street North, Bayport, MN 55003-1490 (appellant pro se)

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.



Appellant challenges the district court's denial of a motion for a postconviction hearing and a petition for postconviction relief seeking resentencing for his kidnapping conviction pursuant to Minn. Stat. § 590.01, subd. 3 (1996). We affirm.


Appellant Clark A. Kruger (f/k/a Clark A. Bailey) pleaded guilty to first-degree criminal sexual conduct pursuant to Minn. Stat. § 609.342 (1974) and kidnapping pursuant to Minn. Stat. § 609.25 (1974) in April 1977. The district court sentenced appellant to two 20-year executed sentences to be served consecutively. The crimes involved the sexual abuse and kidnapping of a 13-year-old boy and the sexual abuse, kidnapping, and murder in Iowa of a 13-year-old girl. In Iowa, appellant pleaded guilty to second-degree murder of the girl and was sentenced to serve 40 years concurrently with his Minnesota sentence.

This appeal arises from the district court's denial of appellant's petition for a postconviction hearing and for postconviction relief. Appellant's petition requested resentencing pursuant to Minn. Stat. § 590.01, subd. 3 (1996), which allows the district court to resentence, under the guidelines, a person who has been convicted and sentenced for a crime committed before May 1, 1980.


Appellant contends that the district court erred in denying his motion for a postconviction hearing. "An evidentiary hearing is not required unless petitioner alleges facts which, if proven, would entitle petitioner to the requested relief." Hanley v. State, 534 N.W.2d 277, 278 (Minn. 1995) (citing Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990). Appellant neither alleges nor does the record support the fact that, if he were released from his sentence early, he would present no danger to the public. Rather, he contends that, because he is to be transferred to the Minnesota Sexual Psychopathic Personality Treatment Center at the end of his sentence, he would not be released into society and, therefore, would pose no danger to society. Because this claim does not involve a factual dispute, the district court did not err in denying appellant's motion for a postconviction hearing.

Appellant next contends that the district court erred by not resentencing him under the statute and suggests that he is entitled to a resentencing on the kidnapping sentence from a 20-year to a 43-month sentence (which he contends is the presumptive sentence for a level VII offense with a zero criminal history score). See Minn. Sent. Guidelines IV (providing for presumptive sentence of 48 months for level VII offense).

Minn. Stat. § 590.01 subd. 3 (1998), provides that:

No petition seeking resentencing shall be granted unless the court makes specific findings of fact that release of the petitioner prior to the time the petitioner would be released under the sentence currently being served does not present a danger to the public and is not incompatible with the welfare of society.

"A petitioner seeking resentencing under this statute has the burden of proof." White v. State, 400 N.W.2d 153, 155 (Minn. App. 1987) (citing Smith v. State, 317 N.W.2d 366, 367 (Minn. 1982)), review denied (Minn. Mar. 25, 1987); see also Minn. Stat. § 609.25. "In determining whether a petitioner meets this burden, a post-conviction court may consider the circumstances of the offense underlying the conviction." Id. (citations omitted). Generally, this court will not "`interfere with the postconviction court's refusal to make the finding that is prerequisite to resentencing, at least in cases in which the petitioner is serving a sentence for a violent offense or has a record suggesting that he is likely to engage in criminal conduct after his release.'" Beaupre v. State, 322 N.W.2d 331, 332 (Minn. 1982) (quoting State v. Champion, 319 N.W.2d 21, 23 (Minn. 1982)).

Appellant's sentence for kidnapping under Minn. Stat. § 609.25 involved the kidnapping of a 13-year-old boy who was not released in a safe place. This court has already held that appellant's kidnapping sentence, under the statute, allowed up to 40 years in prison. Bailey v. State, 414 N.W.2d 503, 506 (Minn. App. 1987) (appellant's kidnapping victim was not released in safe place; thus, 20-year maximum is inapplicable), review denied (Minn. Dec. 22, 1987). During the course of that kidnapping, appellant forced the 13-year-old boy and a 13-year-old girl to perform sexual acts on one another while at gunpoint. Appellant invited a friend over and, while appellant sexually assaulted the girl, he ordered the boy to perform oral sex on his friend. He threatened to kill the boy and girl if they told anyone and locked the two in the basement where the boy escaped through a window. Appellant then took the girl to Iowa where he killed her by shooting her in the head.

In denying appellant's petition for postconviction relief, the district court explained that:

The civil commitment process is not to be utilized as a substitute for criminal incarceration to incapacitate chronic sex offenders. See State v. Danforth, 573 N.W.2d 369 (Minn. App. 1997) review denied [Minn. Feb. 19, 1998]. [Appellant's] argument is flawed because that is precisely what he is asking this court to do. * * * The seriousness of petitioner's conduct which led to the conviction and the likelihood that he may engage in criminal conduct after his release, must be weighed against [appellant] in assessing his danger to the public and the incompatibility of his release with the welfare of society.

In connection with the denial of resentencing, the district court: (1) refused to make a finding that, because appellant would be transferred to the Minnesota Sexual Psychopathic Personality Treatment Center, he would not present a danger to the public and his release would not be incompatible with the welfare of society; and (2) recognized that appellant had committed violent offenses, which were "aggravated by the fact that they were committed against a minor and involved the use of a firearm." Based on these conclusions, the district court did not err in denying appellant's petition for resentencing. See White, 400 N.W.2d at 155 (reversing postconviction court's resentencing of petitioner because postconviction court was unable to make required finding that petitioner's release would not present danger to public).

Furthermore, based on the severe aggravating factors in this case, the request for a presumptive sentence is completely without merit. See State v. Glaraton, 425 N.W.2d 831, 834 (Minn. 1988) (recognizing that when severe aggravating circumstances are present, only absolute limit on sentence duration is statutory maximum); see also State v. Strommen, 411 N.W.2d 540, 545 (Minn. App. 1987) (affirming durational departure by factor of 4.19 from presumptive sentence because of severe aggravating circumstances), review denied (Minn. Oct. 28, 1987). Given appellant's horrifying conduct, the district court properly denied his petition for resentencing. See Shelly v. State, 412 N.W.2d 761, 763 (Minn. App. 1987) (affirming postconviction court's denial of resentencing while recognizing that aggravating factors likely would have supported durational departure from sentencing guidelines), review denied (Minn. Nov. 24, 1987).