This opinion will be unpublished and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

A06-1214

 

In the Matter of the Welfare of: H.V.

 

Filed June 5, 2007

Affirmed

Stoneburner, Judge

 

Winona County District Court

File No. J70550309

 

John M. Stuart, Minnesota Public Defender, Jodie L. Carlson, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Charles E. MacLean, Winona County Attorney, Kevin P. O’Laughlin, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, MN 55987 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant, a juvenile adjudicated delinquent by reason of having committed third-degree criminal sexual conduct, argues that the mandatory registration requirement as applied to juveniles violates the Sixth Amendment, the Due Process Clause, and the separation-of-powers doctrine.  Because we find no merit in appellant’s legal arguments, we affirm.

FACTS

 

            Appellant H.V., whose date of birth is December 6, 1988, engaged in consensual-sexual intercourse with K.L.S., whose date of birth is March 18, 1991.  At the time of the contact, H.V. was 15 years old, and K.L.S. was 13 years old.  Respondent state filed a delinquency petition alleging that H.V. committed third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b) (2004), which criminalizes sexual penetration of a person who is at least 13 years old but less than 16 years old by a person who is more than 24 months older.  Adjudication for the offense charged triggers mandatory registration as a predatory offender under Minn. Stat. § 243.166, subd. 1(a)(1)(iii) (2004).

            H.V. requested a jury trial, arguing that the registration requirement constitutes criminal punishment, which, under the Sixth Amendment, cannot constitutionally be imposed on him without a jury trial.  The district court denied H.V.’s request for a jury trial, noting that “courts have consistently held adult registration requirements not to be punitive because they serve the regulatory purpose of assisting police in their investigations.”

            The matter was submitted to the district court under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court found that H.V. committed the offense charged and adjudicated him delinquent.  The disposition in this matter was consolidated with the disposition on several other files involving H.V., and H.V. was required to register as a predatory offender under Minn. Stat. § 243.166, subd. 1(a)(1)(iii).  H.V. appeals, asserting that the registration requirement must be vacated as unconstitutionally imposed, or, alternatively, that his conviction should be reversed and the matter remanded for a jury trial.

D E C I S I O N

 

            A person adjudicated delinquent for violating Minn. Stat. § 603.344 (2004), is required to register as a predatory offender under Minn. Stat. § 243.166, subd. 1(a)(1)(iii) (2004).  When a juvenile who is required to register becomes subject to a juvenile court disposition, the court shall inform the juvenile of the duty to register and, “if the [juvenile] fails to comply with the registration requirements, information about the offender may be made available to the public through electronic, computerized, or other accessible means.”  Minn. Stat. § 243.166, subd. 2 (2004).  The court is precluded from modifying the juvenile’s duty to register.  Id.  Information about predatory offenders who fail to comply with registration for more than 30 days is publicly available through the Bureau of Criminal Apprehension (BCA) and applies to all noncompliant offenders over the age of 16.  Id., subd. 7a(a) (2004).[1]  Violation of the registration statute is a felony, and the registration requirement exists for a minimum of ten years.  Id., subds. 5(a) and 6(a) (2004).

            H.V. argues that the statute, as applied to juveniles, unconstitutionally violates due-process rights, the right to a jury trial, and the separation-of-powers doctrine.  The constitutionality of a statute is reviewed de novo.  State v. Barnes, 713 N.W.2d 325, 330 (Minn. 2006).  “Statutes are presumed constitutional and [should] be declared unconstitutional with extreme caution and only when absolutely necessary.”  State v. Tennin, 674 N.W.2d 403, 407 (Minn. 2004) (quotation omitted).  To successfully challenge the constitutionality of a statute, the defendant must overcome the heavy burden of demonstrating that the challenged statute is unconstitutional beyond a reasonable doubt.  Id.

I.          Due Process and Sixth Amendment rights

            H.V.’s due-process and Sixth Amendment arguments overlap, and we will address them together.  H.V. argues that the registration statute is punitive as applied to juveniles and frames the issue as “whether the process that is due a juvenile—a court trial instead of a jury trial—is sufficiently reliable to use as a basis for imposing a sentencing condition.”  We previously addressed this argument in In re Welfare of C.D.N., 559 N.W.2d 431, 434 (Minn. App. 1997), review denied (Minn. May 20, 1997).

            C.D.N. was a consolidated appeal involving two juveniles who asserted, as does H.V., that Minn. Stat. § 243.166 (1996), violated their right to due process “because it imposes an adult sanction without providing them the right to a jury trial, a significant procedural safeguard available in the adult court system.”  559 N.W.2d at 433.  In C.D.N., we held that the registration statute, as applied to juveniles who are adjudicated delinquent for listed offenses without jury trials, does not violate due-process rights.  Id. at 435.  But we “respectfully invite[d] the legislature to review the prudence of requiring all juveniles adjudicated for criminal sexual conduct to register as predatory [sex] offenders.”  Id.

            Appellant acknowledges the authority of C.D.N. but argues that the holding should be revisited because changes in the registration statute enacted after that decision was issued have rendered the statute punitive, triggering the constitutional right to a jury determination before the requirement can be imposed.  Despite the statutory changes, however, the supreme court and this court have continued to hold that the statute is not punitive and does not trigger fundamental rights.

            In 1999, the supreme court addressed a constitutional challenge to the registration requirement imposed on an adult defendant who had been charged with, but not convicted of, criminal sexual conduct in the third degree.  Boutin v. LaFleur, 591 N.W.2d 711, 716-18 (Minn. 1999).  Boutin, who was convicted of third-degree assault, was required to register because the offense for which he was convicted arose out of the same set of circumstances that led to the criminal sexual conduct charge.[2]  Id. at 713.  Boutin argued that the registration requirement was unconstitutional as applied to him because it infringed on his constitutionally protected presumption of innocence by presuming that he was guilty of a predatory offense even though he was not convicted of that offense.  Id. at 716.

            The supreme court, noting that it had previously recognized the presumption of innocence as a fundamental right that only applies to statutes which are punitive or criminal in nature, determined that the registration statute “is a civil, regulatory statute” that does not implicate fundamental rights.  Id.at 717.  The supreme court applied the following factors outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68 (1963):

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment – retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

 

Boutin, 591 N.W.2d at 717 (quotation omitted).

            In 2002, the supreme court, referencing Boutin and the Kennedy factors, reaffirmed its holding that predatory-offender registration for adult criminal defendants “is a regulatory rather than punitive consequence.”  Kaiser v. State, 641 N.W.2d 900, 905 & n.9, 907 (Minn. 2002).  That same year, this court revisited the fairness of the registration statute in the context of juvenile delinquency.  In re Welfare of J.R.Z., 648 N.W.2d 241, 244, 247-249 (Minn. App. 2002), review denied (Minn. Aug. 20, 2002).  J.R.Z., an 11-year-old juvenile, challenged the imposition of a lifetime predatory-offender registration requirement.  Id. at 247.  Interpreting the 2000 version of the registration statute, this court again held that the registration statute is not punitive and upheld the requirement imposed on J.R.Z.  Id. at 248 (citing C.D.N., 559 N.W.2d at 433-34).  We acknowledged that the result for J.R.Z. may have been “harsh,” but noted that “the decision concerning the reach of the statute rests with the legislature.”  Id.  We again invited the legislature “to review the prudence of requiring all juveniles adjudicated for criminal sexual conduct to register as predatory [sex] offenders.”  Id. at 249 (quotation omitted).  Because the version of the statute examined in J.R.Z. already contained most of the changes cited by H.V., we decline H.V.’s invitation to reexamine our prior holdings.

            Very recently, a plurality of the Minnesota Supreme Court narrowed the characterization of the registration statute as it applies to enrolled tribal members who live on a reservation.  State v. Jones, 729 N.W.2d 1, 2-3, 12 (Minn. 2007).  In Jones, three supreme court justices held that the state has jurisdiction to require Jones, who is Native American and lives on a reservation, to register under Minn. Stat. § 243.166, because the statute is “criminal/prohibitory.”  Id. at 3, 12.  Drawing a distinction between the terms “punitive” and “prohibitory,” the plurality did not overrule Boutin and Kaiser,concluding that those cases are distinguishable from Jones.  Id. at 11-12.  Two justices concurred in the holding that the state has jurisdiction to require tribal members living on the reservation to register because exceptional circumstances exist giving the state jurisdiction, regardless of whether the statute is civil or criminal.  Id. at 12-15.  The concurring justices found it “tenuous and unnecessary” to characterize the registration statute as “criminal” in order to find jurisdiction.  Id. at 12.

            We conclude that Jones does not diminish the authority of Boutin, Kaiser, and C.D.N.  The registration statute, in the context of whether it triggers constitutional rights associated with criminal prosecutions, is civil/regulatory in nature and does not trigger the constitutional rights asserted by H.V. in this case.

            H.V. also argues that “[b]ecause the registration requirement imposes additional punishment on a juvenile based on the court’s finding that the juvenile committed a registrable offense,” it constitutes a sentence enhancement for which a jury needs to determine the facts under Apprendi v. New Jersey,530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000), and Blakely v. Washington, 542 U.S. 296, 313, 124 S. Ct. 2531, 2543 (2004).  But because registration is not punitive, it is not a sentence enhancement, and H.V.’s constitutional challenges to the registration statute based on Apprendi and Blakely are without merit.

II.        Separation of Powers

            H.V. argues, for the first time on appeal, that the registration requirement violates the separation-of-powers doctrine because “it interferes with the court’s discretion to impose appropriate sentencing conditions.”  Generally, this court will not consider issues that were not initially raised in the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Nonetheless, we briefly address the issue to note that H.V.’s argument on this constitutional challenge also lacks merit.

            Article III, Section 1, of the Minnesota Constitution provides: “The powers of government shall be divided into three distinct departments: legislative, executive, and judicial.  No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.”  “Due respect for coequal branches of government requires [courts] to exercise great restraint in considering the constitutionality of statutes particularly when the consideration involves what is a legislative function and what is a judicial function.”  State v. Losh, 721 N.W.2d 886, 891 (Minn. 2006) (quotation omitted).

            As discussed in some detail above, the registration requirement is not punitive, and is not a sentence or a sentence enhancement.  Although the registration statute requires the sentencing court to give a defendant notice of the duty to register and prohibits the court from modifying a defendant’s duty to register, the statute further provides that if the court does not give notice to the defendant, the assigned corrections agent shall notify the defendant of the duty to register.  Minn. Stat. § 243.166, subd. 2.  Because “[i]mposition of a sentence rests solely with the trial court” and the statute allows a corrections agent to provide notice of the duty to register, the registration requirement is not a part of the sentence.  Kaiser, 641 N.W.2d at 907.  Even if the requirement could be considered to be a part of the sentence, the registration statute does not violate the separation-of-powers doctrine because the legislature can limit the exercise of judicial discretion in sentencing.  See State v. Olson, 325 N.W.2d 13, 18 (Minn. 1982) (stating that the legislature can restrict the exercise of judicial discretion in sentencing by setting mandatory sentences).

            Although the legislature has twice declined our invitation to reexamine the wisdom of imposing predatory offender registration on all juveniles adjudicated of predicate offenses, we nonetheless reissue the invitation, particularly in the context of cases such as this one in which there is record evidence that the juvenile delinquent is not a sexual predator.

            Affirmed.