This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-1982

 

Timothy John O’Meara, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed July 29, 2003

Affirmed

Willis, Judge

 

Becker County District Court

File Nos. K899765 and KX99766

 

Mark D. Nyvold, 1030 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for appellant)

 

Mike Hatch, Attorney General, Tricia L. Matzek, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Joseph Evans, Becker County Attorney, P.O. Box 476, Detroit Lakes, MN  56502 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the denial of his petition for postconviction relief, arguing that the district court improperly sentenced him as a patterned sex offender and imposed consecutive 40-year prison sentences.  We affirm.

FACTS

             Appellant Timothy John O’Meara was convicted of two counts of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (1998).  O’Meara waived his right to a jury trial and stipulated that in May 1999 he and N.H., who was then age ten, were alone together at O’Meara’s home and that a video camera was used to record his activities with N.H.  O’Meara also stipulated that in June 1999 he was similarly alone together at his house with B.K., who was then age nine, and that a video camera was also used to record his activities with B.K.  Pursuant to a valid search warrant, police seized the videotape used to record the encounters.

            The videotape showed the two boys naked and showed O’Meara instructing them to masturbate.  Detective John Sieling, who had watched the videotape, testified that O’Meara had put his hands on B.K.’s penis “three to four times.”  Detective Sieling also testified that O’Meara had put his hands on N.H.’s penis.

            The district court found O’Meara guilty.  At O’Meara’s sentencing hearing, Dr. Rick Ascano, a psychologist who examined O’Meara, testified that (1) he has experience assessing sex offenders; (2) he conducted a clinical interview with O’Meara, performed a battery of psychological tests on him, and reviewed various documents related to his history of sexual misconduct; (3) he is familiar with the statutory definition of “patterned sex offender”; and (4) in his opinion, O’Meara is a patterned sex offender and a risk to public safety.  Dr. Ascano opined that O’Meara needed a minimum of three to five years of treatment and that rehabilitation might be impossible.  He noted that a 60-month prison term, which would be the presumptive sentence if the district court imposed concurrent guideline sentences, would be inadequate to rehabilitate O’Meara if he lacked the “proper motivation.”  Dr. Ascano also testified that it is “questionable” that the presumptive sentence would be adequate because of  O’Meara’s 20-year history of sexual misconduct.

The district court found that O’Meara is a danger to public safety because (1) he has two prior felony convictions for criminal sexual conduct, (2) he committed the acts with  B.K. and N.H. “shortly after [he] was released and while he was on parole” for the prior convictions, and (3) he “violated a position of trust in committing the acts perpetrated upon” B.K. and N.H. because “he was entrusted with the safekeeping of the victims while they spent the night at his house.”  The court also found that, based on Dr. Ascano’s report, O’Meara is “in need of long-term treatment * * * beyond the presumptive term of the imprisonment and supervised release.”  And the court further found that O’Meara’s offenses “were motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration.”  Based on these findings, the court concluded that O’Meara is a patterned sex offender and sentenced him to two consecutive 40-year prison terms with a conditional-release period of 10 years upon completion of the prison sentence.

            In August 2000, O’Meara filed a notice of appeal of his conviction and sentence, but his notice was filed three days after the deadline for him to appeal, and it was dismissed.  In April 2002,  O’Meara petitioned for postconviction relief.  He argued that (1) his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), because the factors supporting the sentence were not proven beyond a reasonable doubt; (2) Dr. Ascano’s testimony does not support a finding that O’Meara is a patterned sex offender; (3) his sentence violates due process and equal protection; (4) his sentence is unreasonable, inappropriate, and excessive; (5) the imposition of consecutive sentences under the patterned-sex-offender statute requires the presence of “severe aggravating factors,” which he contended were not present; (6) the district court failed to use a zero criminal-history score when it imposed a consecutive sentence for his second conviction; and (7) his sentence constitutes cruel and unusual punishment.  The district court denied O’Meara’s petition, and this appeal follows.

D E C I S I O N

“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 (Minn. 2000) (citation omitted).  The denial of a petition for postconviction relief is reviewed on an abuse-of-discretion standard, and the inquiry is limited to determining whether there is sufficient evidence to sustain the court’s findings of fact.  McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).  But when the facts are not in dispute, we review de novo the postconviction court’s decision on a pure question of law.  See Garza v. State, 619 N.W.2d 573, 576 (Minn. App. 2000).

Minnesota’s patterned-sex-offender statute, Minn. Stat. § 609.108 (1998), requires a sentence of

not less than double the presumptive sentence under the sentencing guidelines and not more than the statutory maximum, or if the statutory maximum is less than double the presumptive sentence, for a period of time that is equal to the statutory maximum, if:

(1) the court is imposing an executed sentence * * * on a person convicted of committing or attempting to commit a violation of section * * *  609.343 * * *;

(2) the court finds that the offender is a danger to public safety; and

(3) the court finds that the offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release.

 

Minn. Stat. § 609.108, subd. 1(a).  If a violation of Minn. Stat. § 609.343 (1998) is “motivated by, committed in the course of, or committed in furtherance of sexual contact or penetration,” the statutory maximum is 40 years.  Id. § 609.108, subd. 2.  Further, if a person is convicted of criminal sexual conduct “a second or subsequent time, * * * the person shall be placed on conditional release for ten years.”  Id. § 609.109, subd. 7(a) (1998).

Application of Apprendi

            O’Meara argues that the district court abused its discretion by denying his petition for postconviction relief.  He first contends that his sentence violates Apprendi, in which the Supreme Court held that other than the fact of a prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  The Minnesota Supreme Court has held that Apprendi applies to sentencing under Minnesota’s patterned-sex-offender statute.  See State v. Grossman, 636 N.W.2d 545, 549 (Minn. 2001).

O’Meara contends that Apprendi should be applied retroactively to his sentencing.  A new constitutional rule of criminal procedure is not applied retroactively to cases on collateral review unless it (1) “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” or (2) “requires the observance of those procedures that * * * are implicit in the concept of ordered liberty.”  Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 1075-76 (1989) (quotations omitted).  This court has held that Apprendi does not satisfy either of the criteria set forth in Teague and does not, therefore,apply retroactively on collateral review.  See Meemken v. State, 662 N.W.2d 146 (Minn. App. 2003); see also United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) (holding that “Apprendi is not of watershed magnitude and * * * Teague bars petitioners from raising Apprendi claims on collateral review”).  We decline, therefore, to apply Apprendi retroactively to O’Meara’s postconviction petition.

Evidence That Appellant Is a Patterned Sex Offender

            O’Meara next argues that there is insufficient evidence to support the district court’s finding that he is a patterned sex offender.  O’Meara apparently concedes that the record supports the court’s findings on the first two prongs of Minn. Stat. § 609.108, subd. 1(a), but he contends that Dr. Ascano gave an “equivocal” opinion regarding whether O’Meara needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release.  The finding that an offender needs long-term treatment or supervision beyond the presumptive term of imprisonment and supervised release

must be based on a professional assessment by an examiner experienced in evaluating sex offenders that concludes that the offender is a patterned sex offender. The assessment must contain the facts upon which the conclusion is based, with reference to the offense history of the offender or the severity of the current offense, the social history of the offender, and the results of an examination of the offender’s mental status * * * . The conclusion may not be based on testing alone. A patterned sex offender is one whose criminal sexual behavior is so engrained that the risk of reoffending is great without intensive psychotherapeutic intervention or other long-term controls.

 

Minn. Stat. § 609.108, subd. 1(a)(3).

Dr. Ascano’s testimony establishes that he is experienced in evaluating sex offenders and that he concluded, in accordance with the requirements set forth in the statute, that O’Meara is a patterned sex offender.  We conclude, therefore, that there is sufficient evidence to support the district court’s finding that O’Meara is a patterned sex offender.

Unavailability of Treatment Violates Due Process and Equal Protection

            O’Meara also argues that his sentence violates his constitutional rights to due process and equal protection of the laws because he will be incarcerated in a “close-custody level institution” and will therefore be deprived of psychological treatment for at least 40 years.  He cites Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255 (1948), for the proposition that sentencing a defendant on the basis of “material misinformation” violates the defendant’s due-process rights.  He asserts that the district court sentenced him without knowing that treatment would not be available.  But O’Meara cites nothing in the record to support his assertions that treatment is unavailable or, if it is unavailable, that the district court was unaware of this fact.  Nor does O’Meara “establish the loss of a protectable property or liberty interest” in psychological treatment.  See State v. Mitchell, 577 N.W.2d 481, 492 (Minn. 1998).  O’Meara’s assignment of error based on mere assertion and unsupported by argument or authority is waived unless the claimed errors are obvious.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971). 

            O’Meara also contends that his sentence violates equal protection because it is more severe than the sentence imposed in other patterned-sex-offender cases.  The guarantee of equal protection of the laws requires the state to treat all similarly situated persons alike.  State v. Northwestern Preparatory Sch., Inc., 228 Minn. 363, 365, 37 N.W.2d 370, 371 (1949).  But it does not require the state to treat “things that are different in fact or opinion as though they were the same in law.”  State v. Behl, 564 N.W.2d 560, 568 (Minn. 1997) (citation omitted).  O’Meara has not shown that the facts here are so similar to those in the other patterned-sex-offender cases that he cites as to give rise to an equal-protection violation.  Further, the district court has wide discretion regarding sentencing, and the fact that “different judges cho[o]se to exercise this discretion in * * * widely different ways is not in and of itself a denial of equal protection.”  State v. Gamelgard, 287 Minn. 74, 78, 177 N.W.2d 404, 407 (1970).  We conclude that O’Meara’s sentence does not violate his constitutional rights to due process or equal protection of the laws.

Reasonableness and Proportionality Under Minn. Stat. § 244.11 (2002)

            O’Meara argues that his sentence is “unreasonable, inappropriate, excessive, unjustifiably disparate, or not warranted by the findings of fact issued by the district court.”  See Minn. Stat. § 244.11, subd. 2(b) (2002).  But the district court, having found that the requirements of Minn. Stat. § 609.108, subd. 1(a), were satisfied, was required to impose at least a double departure from the presumptive guidelines sentence.  See State v. Danforth, 573 N.W.2d 369, 377 (Minn. App. 1997) (holding that district court “does not have the discretion to withhold imposition of a double departure”), review denied (Minn. Feb. 19, 1998).  And a greater-than-double departure from the minimum sentence under the patterned-sex-offender statute does not require the district court to make findings regarding aggravating factors.  See State v. McCoy, 631 N.W.2d 446, 453-54 (Minn. App. 2001).  Further, the district court made findings pursuant to Minn. Stat. § 609.108, subd. 2, which increases the statutory maximum to 40 years.

“Severe Aggravating Factors” for Consecutive Sentencing Under Patterned-Sex-Offender Statute

 

            O’Meara also argues that the imposition of consecutive sentences under the patterned-sex-offender statute requires a finding of “severe aggravating circumstances.”  But Minn. Stat. § 609.108 does not require the district court, when sentencing a defendant as a patterned sex offender, to make any findings other than those listed in the statute.  And the supreme court has stated that the statute itself is a “statutorily created aggravating factor.”  State v. Stirens, 506 N.W.2d 302, 305 (Minn. 1993) (quotation omitted).    

Further, consecutive sentences are permissive for multiple current felony convictions of crimes against persons, and consecutive sentencing under these circumstances is not a departure from the sentencing guidelines.  See Minn. Sent. Guidelines II.F.2.  O’Meara concedes that the district court’s imposition of consecutive sentences here is not a departure under the sentencing guidelines.  But he contends that consecutive sentencing is a departure under the patterned-sex-offender statute, citing State v. Halvorson, 506 N.W.2d 331 (Minn. App. 1993).  In Halvorson, however, this court held that, under the facts of that case, consecutive sentences were a departure from the guidelines.  Id. at 340.  Because O’Meara’s offenses involved multiple victims, his consecutive sentences are not a departure, and Halvorson is therefore not applicable.

            Finally, when more than one person is the victim of criminal sexual conduct, consecutive sentencing is appropriate to recognize the severity of each instance of criminal behavior.  State v. Cermak, 442 N.W.2d 822, 824 (Minn. App. 1989).  Whether consecutive sentences should be imposed is a question within the discretion of the district court.  State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992).  Because O’Meara was convicted of criminal sexual conduct involving multiple victims, consecutive sentencing was not a departure requiring the presence of severe aggravating circumstances, and the district court had discretion to impose consecutive sentences to recognize the severity of O’Meara’s acts.

Zero Criminal-History Score for Departure Imposed on Second Count

O’Meara contends that the district court failed to use a zero criminal-history score when it imposed a consecutive sentence for his second conviction.  A criminal-history score is determined by assigning points for prior convictions according to the severity level of the prior crimes.  Minn. Sent. Guidelines II.B.1.a.  For each permissive consecutive sentence, the criminal-history score is zero.  Minn. Sent. Guidelines II.F.

O’Meara cites nothing in the record to support his contention that the district court failed to use a zero criminal-history score.  But even if we assume that the district court erred, the error was harmless.  With a zero criminal-history score and consecutive sentencing, O’Meara’s presumptive guidelines sentence for his second conviction would have been 21 months.  See Minn. Sent. Guidelines IV.  But because O’Meara was sentenced as a patterned sex offender, the district court was required to impose a minimum sentence of double the presumptive guidelines sentence, or 42 months.  See Minn. Stat. § 609.108, subd. 1(a).  There is no presumptive sentence under the patterned-sex-offender statute, and O’Meara’s criminal-history score was only important for determining his minimum sentence.  Further, the district court made findings pursuant to Minn. Stat. § 609.108, subd. 2, and it therefore had discretion to impose a sentence between 42 months and 40 years.  As we noted earlier, the district court’s findings pursuant to the patterned-sex-offender statute provide the aggravating factors necessary to justify a greater-than-double durational departure from the minimum sentence.

Cruel and Unusual Punishment

            O’Meara argues finally that his sentence is unconstitutional because it constitutes cruel and unusual punishment.  O’Meara once again assigns error based on mere assertion and unsupported by argument or authority, and his claims are therefore waived unless the claimed errors are obvious.  See Schoepke,290 Minn. at 519-20, 187 N.W.2d at 135.  Further, O’Meara’s sentence is within the limits of the patterned-sex-offender statute, which, the supreme court has held, does not violate the constitutional prohibition of cruel and unusual punishment.  See Stirens, 506 N.W.2d at 305; State v. Christie, 506 N.W.2d 293, 300 (Minn. 1993).

            We decline to apply Apprendi retroactively to O’Meara’s petition for postconviction relief.  Further, O’Meara has not shown that there is insufficient evidence to support the district court’s finding that he is a patterned sex offender.  His sentence does not violate his rights to due process or equal protection of the laws, is not unreasonable or disproportional, and does not require a showing of “severe aggravating circumstances.”  Any error that the district court committed by failing to use a zero criminal-history score was harmless, and O’Meara’s sentence does not constitute cruel and unusual punishment.  Finally, we have considered the argument raised by O’Meara in his pro se supplemental brief and conclude that it does not provide a basis for relief.

            Affirmed.