This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A07-355

 

 

State ex rel. Jason Charles Melin, petitioner,

Appellant,

 

vs.

 

Joan Fabian, Commissioner of Corrections,

Respondent.

 

 

Filed May 29, 2007

Affirmed

Toussaint, Chief Judge

 

Chisago County District Court

File No. 13-CV-06-776

 

 

Bradford W. Colbert, Marisela Marquez, Certified Student Attorney, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

Lori Swanson, Attorney General, Kari Jo Ferguson, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2128; and

 

Brent D. Wartner, Director, Policy and Legal Services, 1450 Energy Park Drive, Suite 200, St. Paul, MN 55108 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This expedited appeal is from an order denying appellant Jason Charles Melin’s petition for a writ of habeas corpus.  Appellant challenges a decision of respondent Joan Fabian, Commissioner of Corrections, assigning his conditional-release expiration date as his projected release date.  Because we conclude that the Hearings and Release Unit (HRU)  did not exceed its authority in choosing that projected release date and that it did not violate principles of determinate sentencing by doing so, we affirm.

D E C I S I O N

            This court gives great weight to the district court’s findings in considering a petition for habeas corpus and will uphold those findings if they are reasonably supported by the evidence.  Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. Nov. 17, 1998).  This court, however, reviews questions of law de novo.  State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn. App. 1993), review denied (Minn. Mar. 11, 1993).

            Respondent argued in her brief that the department of corrections has “untrammeled authority” to assign expiration of sentence as a release date based on Minn. Stat. § 609.3455, subd. 8(b), which provides that if an offender violates a condition of release, “the commissioner may revoke the offender’s conditional release and order that the offender serve all or a part of the remaining portion of the conditional-release term in prison.” Minn. Stat. § 609.3455, subd. 8(b) (2006).  At oral argument, counsel for respondent withdrew this claim of “untrammeled authority.”  The legislature has directed that the department of corrections shall adopt by rule “standards and procedures for the revocation of supervised or conditional release, and shall specify the period of revocation for each violation of release.”  Minn. Stat. § 244.05, subd. 2 (2006).

            The rules adopted by respondent provide that

depending on the time remaining to be served on the sentence, the type of violation, and the needs of the offender, up to expiration of the sentence may be assigned as the term of re-imprisonment if there is a finding of risk to the public or if repeated violations of the conditions of release occur and the releasee is determined to be unamenable to supervision by the executive officer of hearings and release.

 

Minn. R. 2940.3800 D. (2005).  “Risk to the public” is defined as “the degree to which an individual is likely to cause injury, damage, loss, pain, or peril to the public or to engage in unlawful sexual behavior involving a victim.”  Minn. R. 2940.0100, subp. 29.

            Appellant was sentenced in 1998 to 36 months in prison and a ten-year conditional-release term for third-degree criminal sexual conduct.  He was released from prison on November 15, 1999, on supervised release, and completed his supervised-release term on October 24, 2000, when his sentence expired and he was placed on conditional release.

            In 2001, appellant was convicted of four offenses: (1) terroristic threats, (2) criminal damage to property; (3) motor-vehicle tampering; and (4) failure to register as a predatory offender.  In November 2002, appellant was stopped for speeding, and police found pornographic magazines and videos in his car.  When appellant’s sex-offender therapist was shown the pornography, she told appellant’s probation officer that appellant would be terminated from the sex-offender treatment program and that she felt that appellant was a threat to the community and should not be treated on an outpatient basis.  The probation officer instructed appellant to return to the jail until he could get the violation straightened out, but appellant allegedly failed to do so.  Appellant’s girlfriend also reported that appellant had consumed alcohol ten days before the traffic stop.  Based on these four alleged violations of appellant’s conditions of probation, a revocation report was issued and a hearing held on December 9, 2002, before the HRU.

Appellant’s primary challenge is to the April 2004 decision to assign him expiration of the conditional-release term as his projected release date.  The HRU decision in December 2002 set a projected release date for a year later.  But the order provided that appellant could be re-released only upon successful completion of sex-offender treatment and only if he had no major disciplinary infractions. 

            Appellant was admitted to the sex-offender treatment program at Lino Lakes in April 2003.  But he was terminated from the program in December 2003 for selling a sexually explicit magazine to another inmate.  In February 2004, at an annual review of appellant’s status, the HRU extended appellant’s re-incarceration for an additional 365 days.  The April 26, 2004 decision that appellant challenges directed that he remain in prison until the expiration of his conditional-release term but that he would be considered for release if he completed the sex-offender treatment program.  Appellant argues that the record does not support the HRU’s conclusion that he is a risk to public safety until he completes the sex-offender treatment program or the conclusion that he is unamenable to supervision and that the HRU assigned expiration of sentence without considering the time remaining in appellant’s sentence, the type of violations, an offender’s needs, as the rule requires.  We disagree.

Despite appellant’s record of positive accomplishments while in prison and on release, the HRU found he was a risk to the public in December 2002, when conditional release was initially revoked. The HRU report noted appellant’s possession of sexually explicit material while on conditional release and found that, although the material involved adults, there were concerns about the material because it “appeared to act out and portray women within the age group of [appellant]’s victim pool.”  The report also cited the concern of appellant’s sex-offender therapist that appellant “continues to be a threat to the community.”  The report also noted that the Lino Lakes sex-offender treatment program would no longer accept appellant and concluded that he was “an ongoing risk to the community if he is unable to complete treatment prior to release.”

Appellant points to his completion of a short-term sex-offender treatment program before his initial release from prison, his completion of a chemical-dependency treatment program in prison, his full-time employment upon release from prison, and participation in community sex-offender treatment upon release.  But appellant was convicted of four new offenses in 2001, and, although none of these was a sexual offense, they did indicate a risk to the public, along with appellant’s continued involvement in pornography, which led to his termination from the community sex-offender treatment program.  We conclude that this evidence is sufficient to support the HRU’s determination that appellant is a risk to public safety unless he completes sex-offender treatment. 

Appellant’s second argument is that the record does not support a finding that he is unamenable to supervision.  But the HRU did not make this finding, which is an alternative basis for assigning expiration of sentence (if there are also repeated violations of the conditions of release).  See Minn. R. 2940.3800 D.  Although the district court concluded that it was proper to assign appellant expiration of sentence based on his repeated violations, the HRU did not cite this basis for assigning expiration, which would also require a finding that appellant was “unamenable to supervision.”  The HRU’s decision, which was based on the independent ground of “risk to the public,” is not affected by this reasoning of the district court.

Appellant also argues that the HRU violated the rule by failing to consider the time remaining in his sentence, the type of violations he committed, and appellant’s own needs.  The rule, however, does not require explicit consideration of those factors.  See Minn. R. 2940.3800 D. (“depending on the time remaining to be served . . .” HRU may assign up to expiration of sentence).  And, since expiration was only conditionally assigned as appellant’s projected release date, any failure to comply with the rule would not be grounds for reversal.  The time remaining in appellant’s conditional-release term is not relevant to the basic decision that appellant should not be released until successfully treated, which is tied to the nature of appellant’s violations (possession and sale of pornography or sexually explicit materials), and meets appellant’s primary need, which is sex-offender treatment.

Appellant argues that this assignment of expiration of the conditional-release term as his projected release date constitutes indeterminate sentencing, in violation of this state’s policy of determinate sentencing.  But as the district court found, appellant has not been reimprisoned for an indeterminate period.  He cannot be held in custody past the October 25, 2009 expiration date of his conditional-release term.  This decision complies with the department of corrections’s rules and reimprisons appellant for an “appropriate period of time,” as required by Minn. Stat. § 244.05, subd. 3(2) (2004), unless appellant completes sex-offender treatment.  The resulting time that appellant may serve for his conditional-release violations may be disproportionate to his original sentence.  But appellant has the chance to reduce that time by an early completion of sex-offender treatment.  And the legislature has provided that, in general, “conditional release of sex offenders is governed by provisions relating to supervised release.”  Minn. Stat. § 609.3455, subd. 8(a) (2006).  Those provisions were followed in this case.

Appellant has not shown that respondent exceeded her authority in reimprisoning him to the expiration of his conditional-release term unless he completes sex-offender treatment.  Therefore, the district court properly denied appellant’s petition for a writ of habeas corpus.

Affirmed.