This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Dennis Wayne Cobb, petitioner,



State of Minnesota,


Filed June 1, 1999

Reversed and remanded

Shumaker, Judge

Hennepin County District Court

File No. 96053007

Dennis Wayne Cobb, #171959, Stillwater Correctional Facility, 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, Beverly J. Benson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Harten, Judge.



Appellant Dennis Wayne Cobb appeals from an order denying postconviction relief on the ground that the sentence imposed by the trial court was not authorized by law. Although the sentence is not improper if the necessary statutory determinations are made, the trial court did not make such determinations. Thus, we reverse and remand.


Appellant was indicted on two counts of first-degree criminal sexual conduct and one count each of felony kidnapping and felony motor vehicle theft. He was charged by complaint in an unrelated case with second-degree assault.

Just prior to jury selection for the trial on the indictment, respondent and appellant entered a plea agreement. The agreement was that appellant would plead guilty to one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c) (1996), and respondent would dismiss the remainder of the indictment and the complaint, and would recommend that appellant be sentenced to prison for 450 months, or 371/2 years.

Appellant agreed to this disposition because he had two prior Illinois convictions in 1986 for criminal sexual assault and he was concerned that a present sex offense conviction would subject him to mandatory life imprisonment.

The trial judge accepted appellant's plea in accordance with the agreement and during the sentencing stated:

And you have a previous sex offense conviction for criminal sexual assault in Sagmund County in Illinois. That was defined under their statutes as an act of sexual penetration with a victim with the use of force, and that is substantially similar to the Minnesota statutes.

After his commitment to prison, appellant petitioned for postconviction relief, challenging the trial judge's authority to impose a sentence of 371/2 years. He argued that the judge had authority to impose either a 30-year sentence or a life sentence but nothing in between. The judge denied his petition, and he appeals the denial. Respondent agrees that the sentence was unauthorized but contends that the proper sentence is life.[1]


Statutory construction is a question of law that the appellate court reviews de novo. State v. Johnson, 514 N.W.2d 551, 553 (Minn. 1994).

Appellant pleaded guilty to criminal sexual conduct in the first degree under Minn. Stat. § 609.342, subd. 1(c) (1996). The statutory maximum sentence for that crime is 30 years in prison. Minn. Stat. § 609.342, subd. 2 (1996). However, there are two statutory exceptions to this maximum sentence. Id. Both exceptions pertain to repeated sex crimes.

The first exception provides that the "court shall sentence a person to imprisonment for life" if "the court determines on the record at the time of sentencing" that (1) the person was previously sentenced as a patterned sex offender under Minn. Stat. § 609.1352 (1996); or (2) the person was convicted of one previous sex offense prior to August 1, 1989, and received at least a double upward departure from the presumptive sentence; or (3) the person has two previous sex offense convictions under Minn. Stat. §§ 609.342, .343, or .344. Minn. Stat. § 609.346, subd. 2a (1996).

Apparently relying on the plea agreement, the trial court made no determination that would fit the first or the third circumstance. As to the second circumstance, the court noted one prior conviction from Illinois that would be substantially the same as a conviction under Minn. Stat. § 609.342, subd. 1 (1996), and there is evidence in the record that the conviction occurred in 1986, but there is no record of the sentence that was imposed. Thus, on this record, the trial judge did not determine the requirements for imposing a mandatory life sentence.

The second exception to the statutory maximum sentence is found in Minn. Stat. § 609.346, subd. 2b (1996). That subdivision is labeled "Mandatory 30-year sentence," but the text of the statute provides that the court shall commit a person to prison "for not less than 30 years, notwithstanding the statutory maximum sentence" if three requirements are met. The first requirement is that the person's conviction be under Minn. Stat. § 609.342, subd. l(c), or under other related provisions. Minn. Stat. § 609.346, subd. 1b(1). The second requirement is that "the court determines on the record at the time of sentencing" that the crime involved an aggravating factor, other than that applicable to repeat sex crime convictions, that would support an upward departure. Minn. Stat. § 609.346, subd. 2b(2)(i) (1996). The third requirement is that there be "a previous sex offense conviction" under Minn. Stat. § § 609.342, or .343, or .344. Minn. Stat. § 609.346, subd. 2b(2)(ii) (1996).

Appellant's present conviction was for a violation of Minn. Stat. § 609.342, subd. 1(c). Thus, the first requirement for applying the "30-year minimum" statute is met. The trial court determined on the record that one prior Illinois conviction involved penetration with the use of force. That crime arguably fits Minn. Stat. § 609.342, subd. 1(c), which requires that the victim have fear of imminent great bodily harm. Appellant admitted that he threatened the current victim with a knife and said he would kill her if she did not comply. Ostensibly the third requirement is met. But the trial court did not identify any aggravating factors that would support an upward durational departure. Minn. Stat. § 609.346, subd. 2b(2)(i) (1996). The record does not contain all the determinations necessary for imposing a 30-year minimum sentence.

Both appellant and respondent argue that the exception under Minn. Stat. § 609.346, subd. 2b (1996), mandates a 30-year sentence. Surely, that is what the label to the section states. But it is clear from the text that 30 years is merely the minimum sentence. Labels and titles of statutes do not control over clear provisions of statutory text. See Minn. Stat. § 645.49 (1996); Johnson v. State Farm Mut. Auto. Ins. Co., 574 N.W.2d 468, 471 (Minn. App. 1998) (legislature provided that headnotes "are mere catchwords to indicate the contents of the section or subdivision and are not part of the statute.")

The matter must be remanded to the trial court for the appropriate sentencing determinations. If the trial court is able to make the requisite determinations under Minn. Stat. § 609.346, subd. 2 (1996), the court is not precluded from imposing the sentence to which the parties agreed. If, however, the trial court determines that sentence should be imposed under Minn. Stat. § 609.346, subd. 2a, or that any other sentence more onerous than that bargained for must be imposed, appellant is entitled to withdraw his plea and renegotiate or have a trial. See Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979) (an unconditional promise that is part of a plea agreement must be honored or the guilty plea may be withdrawn).

Reversed and remanded.

[1] Respondent agrees that the matter should be remanded with instructions to the trial court (1) to impose a 30-year sentence if respondent has no opposition and to preclude appellant from withdrawing his plea, or (2) to allow a plea withdrawal if respondent seeks a life sentence or a renegotiated plea to multiple offenses.