In the Matter of

the Risk Level Determination of K.S.

Filed May 23, 2006

Affirmed

Dietzen, Judge

Minnesota Office of Administrative Hearings

Agency File No. 1-1100-16114-2

John M. Stuart, Minnesota Public Defender, F. Richard Gallo, Jr., Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, Angela M. Helseth, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*

U N P U B L I S H E D O P I N I O N

DIETZEN, Judge

By writ of certiorari, relator challenges the determination of the Department of Corrections administrative-law judge that relator is required to register as a “predatory offender” and that the End-of-Confinement Review Committee (ECRC) had authority to assign him a risk level, arguing that his convictions do not qualify him for predatory- offender registration and that the reversal of his felony conviction nullified the prison sentence and, therefore, deprived the ECRC of jurisdiction to assign a risk level. Because we conclude that relator’s Nebraska conviction qualified him for predatory-offender registration and that the ECRC’s risk-level assignment is not invalidated by the later reversal of relator’s felony conviction, we affirm.

FACTS

In July 2003, relator Kenneth Dale Stark allegedly exposed himself to an eight-year-old girl near a park in Hastings. Relator was subsequently charged with felony fifth-degree criminal sexual conduct in violation of Minn. Stat. § 609.3451, subd. 1(2), subd. 3 (2002), which requires that a defendant have a previous conviction under subdivision 1, clause (2), of that statute, or under Minn. Stat. § 617.23, subd. 2(1), or under “a statute from another state in conformity with” either of those two Minnesota statutes. Minn. Stat. § 609.3451, subd. 3 (2002). The offense was charged as a felony because the state alleged relator’s 1992 Nebraska conviction of criminal sexual assault of a child enhanced the offense.

Relator pleaded guilty to the offense and was sentenced to 21 months in prison. While incarcerated, relator underwent a risk-level assessment and was assigned a Risk Level III by the ECRC pursuant to its authority under Minn. Stat. § 244.052 (2004). Relator was assigned the highest risk level based on his extensive history of inappropriate sexual behavior, including several out-of-state convictions of sexual offenses. Relator’s assignment of a risk level triggered statutory community notification upon release from prison.

Relator appealed his conviction, arguing that the district court should have dismissed the felony charge on the ground that his 1992 Nebraska conviction of “sexual assault of a child” could not be used to enhance the charge. This court found that Minn. Stat. § 609.3451, subd. 3, the statute under which relator was convicted, permits an enhanced felony charge based on a prior out-of-state conviction only if the foreign statute is “in conformity” with section 609.3451 or the other Minnesota statutes enumerated in that section. This court reversed the felony conviction, finding that the Nebraska statute was not “in conformity” because it prohibited sexual contact with a minor and, unlike section 609.3451, was not directed at exhibitionism or indecent exposure; and remanded the case for adjudication as a gross misdemeanor. See State v. Stark, 2004 WL 1615224 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).

Upon reversal of his felony conviction, relator was released from prison and appealed the assignment of a risk level to a Department of Corrections (DOC) administrative-law judge (ALJ), arguing that the ECRC lacked statutory authority to assign him a risk level because he was not a “predatory offender” requiring registration and that his confinement was improper given the reversal of his felony conviction.

Following written submissions by the parties, the ALJ determined that relator was a “predatory offender” required to register under Minn. Stat. § 243.166, based on his prior Nebraska and South Dakota convictions; and that the ECRC had a legal basis to set the risk level because, at the time of its assessment, relator was lawfully confined. The ALJ concluded that the ECRC had jurisdiction to assign relator a risk level. Relator appealed by writ of certiorari.

D E C I S I O N

Relator raises two arguments on appeal. First, relator argues that he was not required to register as a “predatory offender” at the time of the ECRC’s risk-level determination because his convictions were not qualifying offenses under Minn. Stat. § 243.166 (2004). Respondent contends that relator was required to register as a “predatory offender” at the time of his risk-level assignment based on his Nebraska and South Dakota convictions. Respondent does not argue that relator was required to register based on his Minnesota conviction.

Questions of statutory interpretation are reviewed de novo. In re Risk Level Determination of C.M., 578 N.W.2d 391, 395 (Minn. App. 1998). “If an administrative agency’s authority is questioned, a [reviewing] court independently reviews the enabling statute.” In re R.B.P., 640 N.W.2d 351, 353-54 (Minn. App. 2002). The object of statutory interpretation is to ascertain and effectuate legislative intent. See Minn. Stat. § 645.16.

A “predatory offender” means a person who is required to register as a predatory offender under Minn. Stat. § 243.166. Minn. Stat. § 244.052, subd. 1(5) (2004). Minn. Stat. § 243.166, subd. 1(b) (2004), provides that a person shall register as a predatory offender if: (1) the person was convicted of or adjudicated delinquent in another state for an offense that would be a violation of a law described in paragraph (a) if committed in this state; (2) that person enters the state to reside, or to work or attend school; and (3) ten years have not elapsed since the person was released from confinement or, if the person was not confined, since the person was convicted or adjudicated delinquent for the offense that triggers registration.

Nebraska Conviction

Relator concedes that his Nebraska conviction of sexual assault of a child would be a violation of a qualifying Minnesota statute enumerated in Minn. Stat. § 243.166, subd. (1)(a), thus satisfying the first of the three requirements for registration for out-of-state convictions. Relator argues, however, that the ALJ erred in determining that the remaining two requirements were met, i.e., that relator “resided” in Minnesota during his period of incarceration, and that the ten-year registration period for the qualifying Nebraska conviction did not lapse prior to his appearance before the ECRC.

Minn. Stat. § 243.166, subd. 1(b), does not define “reside.” Words and phrases lacking express statutory definition “are construed . . . according to their common and approved usage.” Minn. Stat. § 645.08(1) (2004); see also State v. Diedrich, 410 N.W.2d 20, 23 (Minn. App. 1987) (citation omitted). The dictionary defines “reside” as, “[t]o live in a place permanently or for an extended period.” The American Heritage Dictionary 1483 (4th ed. 2000); see also Black’s Law Dictionary 1308 (6th ed. 1990) (defining reside as to “live, dwell, abide, sojourn, stay, remain, lodge . . . [or] have a settled abode for a time”).

Relator argues that his incarceration in a Minnesota prison does not qualify as “residing” in the state because there was no intent on his part to live in Minnesota. But the common definition of “reside” does not necessarily require subjective intent. And this court has determined that, because the terms “reside” and “resident” have not gained one generally accepted meaning, the best rule for interpreting the terms in a given statutory enactment is to examine the “subject-matter, object, and purpose of the statute.” In re Handy, 672 N.W.2d 214, 218 (Minn. App. 2003), review denied (Minn. Feb. 17, 2004).

Here, the fundamental purpose of the registration statute is to gather information and aid law enforcement in tracking offenders and investigating sexual offenses. State v. Lilleskov, 658 N.W.2d 904, 908 (Minn. App. 2003). And the intended goal of the statute is to “monitor sex offenders” who are present in the community. Id. To read a subjective intent into the term “reside” under this statutory scheme would exclude from registration incarcerated offenders, who have committed a qualifying predatory offense in another state and have established their presence in Minnesota by committing a criminal offense here, simply because the offenders were not intending to remain in Minnesota at the time they committed the criminal offense. Such a result would be contrary to the purpose of the registration statute. Consequently, relator was “residing” in Minnesota during his incarceration, thus satisfying the second requirement for registration under Minn. Stat. § 243.166, subd. 1(b).

The third requirement for registration based on out-of-state convictions under Minn. Stat. § 243.166 is that ten years have not elapsed since the person was released from confinement or, if not confined, since the person was convicted. Minn. Stat. § 243.166, subd. 1(b)(3). Although the precise date of relator’s release is unclear, the date of release was no earlier than July 1994. Here, relator appeared before the ECRC on June 21, 2004, which was about ten days before the expiration of his requirement to register for the Nebraska offense. Thus, relator was required to register as a “predatory offender” for his Nebraska conviction at that time and was subject to the ECRC’s risk-level assessment and assignment authority.

Because relator’s Nebraska conviction satisfied the three requirements for registration of out-of-state convictions, we conclude that relator was a “predatory offender” required to register at the time of the ECRC’s risk-level assessment and assignment under Minn. Stat. § 243.166, subd. 1(b). Further, because we conclude that relator was required to register for the Nebraska conviction, we need not address whether he was required to register for the South Dakota conviction.

II.

Second, relator argues that he does not qualify for community notification in Minnesota because he was assigned a “risk level” while wrongfully confined, and without such wrongful confinement, the ECRC lacked jurisdiction to assign a risk level. Respondent argues that, at the time of the ECRC hearing, relator was properly confined based on his felony conviction, and a subsequent reversal does not invalidate the risk-level assignment.

“Whether an agency has jurisdiction over a matter is a legal question and, therefore, a reviewing court need not defer to agency expertise.” In re License Application of N. Metro Harness, Inc., 711 N.W.2d 129, 134 (Minn. App. 2006) (citation omitted). “The party seeking review on appeal has the burden of proving that the agency has exceeded its statutory authority or jurisdiction.” Id.

The Minnesota Supreme Court has stated:

Jurisdiction of an administrative agency consists of the powers granted it by statute. Lack of statutory power betokens lack of jurisdiction. It is therefore well settled that a determination of an administrative agency is void and subject to collateral attack where it is made either without statutory power or in excess thereof.

McKee v. County of Ramsey, 310 Minn. 192, 195, 245 N.W.2d 460, 462 (1976).

Under the Sex Offender Community Notification Act codified as Minn. Stat. § 244.052 (2004), the ECRC has statutory authority to determine the offender’s risk level at least 90 days before an offender’s release from confinement. Minn. Stat. § 244.052, subd. 3(d). “Confinement” means “confinement in a state correctional facility or a state treatment facility.” Id. at subd. 1(1). The ECRC determines the public risk posed by an offender and assigns a risk level that corresponds to the offender’s risk of re-offending ranging from I (low risk of re-offense) to III (high risk of re-offense). Id. at subd. 3(e).

The notification statute empowers the law-enforcement agency in “the area where the predatory offender resides, expects to reside, is employed, or is regularly found” to disclose to the public, any information that the agency deems “relevant and necessary to protect the public and to counteract the offender’s dangerousness.” Id. at subd. 4(a). The statute permits the agency to disclose information on risk-level I offenders to other law enforcement and victims of and witnesses to the offender’s crime; to also disclose information on risk-level II offenders to schools, day care centers, and organizations that primarily serve individuals likely to be victimized by the offender; and to also disclose information on risk-level III offenders to other members of the community whom the offender is likely to encounter. Id. at subd. 4(b)(1)-(3); C.M., 578 N.W.2d at 394-95.

Here, there is no dispute that Minn. Stat. § 244.052 gives the ECRC statutory authority to assign a risk level to soon-to-be-released “predatory offenders” and that, at the time of its assignment, relator’s felony conviction and prison sentence were not yet overturned. The issue is whether the later reversal of relator’s felony conviction and prison sentence invalidates the ECRC’s assessment and assignment of relator’s risk level.

Generally, “events occurring after attachment of jurisdiction do not divest a court of a previously and correctly acquired ability to decide a case.” Berke v. Resolution Trust Corp., 483 N.W.2d 712, 716 (Minn. App. 1992), review denied (Minn. May 21, 1992). In the case of In re Ivey, 687 N.W.2d 666 (Minn. App. 2004), the relator challenged the district court’s order of civil commitment, arguing that he would not have agreed to extradition and would not have been subject to the DOC’s authority to file a petition for civil commitment, but for the ten-year conditional-release term later found to be defective. Id. at 670. This court reasoned that, at the time of his return to Minnesota, relator was subject to the DOC’s continuing supervisory authority under a valid sentencing order and concluded that “irregularities in the establishment of personal jurisdiction do not negate the assumption of personal jurisdiction.” Id. at 670.

We believe that the reasoning of the Ivey court applies equally to this case. When the ECRC performed its risk-level assessment and assigned relator to risk-level III, relator was properly confined pursuant to his sentence for felony criminal sexual conduct. Consequently, the subsequent reversal of relator’s felony conviction does not affect the validity of the ECRC’s risk-level assignment.

Relator argues that the reversal of his felony conviction nullified his sentence and his confinement, requiring that his “slate” be cleaned of all consequences resulting therefrom. See In re Reutter, 474 N.W.2d 343, 345 (Minn. 1991) (“A reversal, it is said, nullifies the original conviction and wipes the slate clean.”). But the Minnesota Supreme Court has implicitly rejected relator’s blanket assertion, declining to “nullify” consequences when the statutory purpose behind the consequence would not be served by nullification. See Johnson v. State, 673 N.W.2d 144, 150 (Minn. 2004) (declining to exclude DNA evidence linking defendant to a rape when the DNA was submitted under a sentencing order that was later reversed because purpose of the statute authorizing DNA sample for certain sex crimes is public safety and would not be served by suppression of the evidence).

Here, relator’s risk-level assignment triggers community notification, which serves the statutory purpose of transmitting information “relevant and necessary to protect the public.” Minn. Stat. § 244.052, subd. 4. This purpose would not be served by invalidating the risk-level assignment, particularly given that the risk-level assessment, and the resulting assignment, are based on an in-depth examination of an offender’s entire record and analysis of various statutory risk factors, as opposed to simply the conduct underlying the reversed conviction. Id. at subd. 3(c), (g). And the subsequent reversal of relator’s felony-level conviction and adjudication of a lesser offense does not vitiate the accuracy of the assignment and its value in protecting public safety. Consequently, we conclude that the ECRC’s jurisdiction to assign a risk level is not invalidated by a later reversal of a felony-level conviction under these circumstances.

Because relator was required to register as a predatory offender based on his Nebraska conviction at the time of the ECRC’s risk-level assignment and a later reversal of relator’s Minnesota conviction does not retroactively deprive the ECRC of jurisdiction to assign a risk level, we conclude that the ALJ did not err in determining that the ECRC had jurisdiction to assign relator a risk level.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.