This opinion will be unpublished and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

A06-907

 

Rudolph Gordon Cooper, Jr., petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed July 3, 2007

Affirmed

Hudson, Judge

 

Hennepin County District Court

File No. 05017030

 

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

 

Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

 

Rudolph Gordon Cooper, Jr., OID No. 165939, Minnesota Correctional Facility – Lino Lakes, 7525 Fourth Avenue, Lino Lakes, Minnesota 55014 (pro se appellant)

 

            Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant Rudolph Gordon Cooper appeals the district court’s denial of his postconviction petition in which appellant challenged his 2005 sentence for felony first-degree DWI.  Appellant argues that the imposition of conditional release as a part of his sentence violates his Sixth Amendment right to a jury trial under Blakely; violates his right to due process and equal protection; constitutes double jeopardy; and conflicts with the supervised-release statute.  We affirm.

FACTS

Appellant was charged on March 20, 2005, with two counts of felony driving while impaired (DWI) and one count of gross misdemeanor driving after cancellation.  On May 17, 2005, appellant pleaded guilty to one count of felony first-degree DWI; the other two counts were dismissed.  The district court sentenced appellant to 42 months in prison with a five-year period of conditional release. 

            Appellant filed a petition for postconviction relief on February 10, 2006, arguing that the five-year period of conditional release is unconstitutional because it is effectively a second sentence, which results in an ultimate sentence that exceeds the statutory maximum.  The district court denied appellant’s petition for postconviction relief in its order of March 28, 2006.  This appeal follows. 

D E C I S I O N

A defendant may petition for postconviction relief “to vacate and set aside the judgment and to . . . grant a new trial or correct the sentence or make other disposition as may be appropriate.”  Minn. Stat. § 590.01, subd. 1 (Supp. 2005).  A petitioner seeking postconviction relief has the burden to establish, by “a fair preponderance of the evidence,” the facts alleged in the petition.  Minn. Stat. § 590.04, subd. 3 (2004).  In order to meet that burden, a petitioner’s allegations must “be supported by more than mere argumentative assertions” lacking factual support.  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).   

            “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).  “We review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record” and “will not reverse the findings unless they are clearly erroneous.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.  But a postconviction court’s legal determinations are reviewed de novo.  Berkow v. State, 573 N.W.2d 91, 95 (Minn. App. 1997), aff’d, 583 N.W.2d 562 (Minn. 1998).  

1.  Double Jeopardy

            Appellant argues that Minn. Stat. § 169A.276, subd. 1(d) (2004), is unconstitutional because it violates the double-jeopardy clause of the federal and state constitutions.  Specifically, appellant argues that imposition of conditional release constitutes a separate sentence because it has a separate expiration date from the prison sentence.  Appellant then concludes that, because he received two different sentences and was sentenced twice for the same crime, the statute violates the double-jeopardy clause.

            The constitutionality of a statute presents a question of law that this court reviews de novo.  State v. Wolf, 605 N.W.2d 381, 386 (Minn. 2000).  Minnesota statutes are presumed to be constitutional, and the party challenging a statute on constitutional grounds “must demonstrate, beyond a reasonable doubt, that the statute violates a provision of the constitution.”  State v. Grossman, 636 N.W.2d 545, 548 (Minn. 2001).  The double-jeopardy clauses of the federal and state constitutions protect criminal defendants from “three distinct abuses:  a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.”  State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998). 

            Appellant’s argument that Minn. Stat. § 169A.276, subd. 1(d), violates the double-jeopardy clause fails.  First, his claim that he was sentenced twice is not supported by the record; appellant was sentenced once to 42 months in prison with a five-year period of conditional release.  Second, mandatory imposition of conditional release is not unconstitutional; it does not violate the double-jeopardy clause.  See State v. Calmes, 632 N.W.2d 641, 649 (Minn. 2001) (holding that the imposition of a mandatory conditional release term does not violate double jeopardy). 

            In sentencing appellant, the district court properly applied Minn. Stat. § 169A.276, subd. 1(d), which states:

            Notwithstanding the statutory maximum sentence provided in section 169A.24 (first-degree driving while impaired), when the court commits a person to the custody of the commissioner of corrections under this subdivision, it shall provide that after the person has been released from prison the commissioner shall place the person on conditional release for five years.

 

Id.  In denying appellant’s petition for postconviction relief, the district court correctly explained:

            Minnesota Statutes § 169A.24 states that the criminal penalty for a First Degree driving while impaired is that a defendant “may be sentenced for not more than seven years”; it continues that the defendant must also submit to the mandatory penalties of § 169A.276.  See Minn. Stat. § 169A.24, subd. 2.  The mandatory penalties include a five year period of conditional release which is “notwithstanding the statutory maximum sentence provided in section 169A.24.”  See Minn. Stat. § 169A.276, subd. (1)(d).

 

Appellant pleaded guilty to first-degree DWI, in violation of Minn. Stat. § 169A.24 (2004), which provides that a person convicted of first-degree DWI “is subject to the mandatory penalties described in section 169A.276 (mandatory penalties; felony violations).”  Id., subd. 1.  Because appellant had five prior DWI convictions, a five-year conditional release period was required by statute.  Minn. Stat. §§ 169A.24, subd. 2, .276, subd. 1(d).

            We further note that appellant’s sentence did not exceed the terms of the plea agreement.  Because appellant did not order a transcript, it is difficult to discern exactly what occurred at the sentencing hearing.[1]  But the record indicates, and appellant admits, that during the sentencing hearing, the district court informed appellant that he would be sentenced to a five-year conditional release term after serving 42 months.  Furthermore, in its postconviction order the district court stated that the conditional release terms were included in appellant’s plea agreement:  “In this case, the [appellant] pleaded guilty pursuant to the terms of the plea negotiation, which included as a condition a five year period of conditional release.”  Thus, the sentence did not exceed the terms of the plea agreement.  See State v. Jumping Eagle, 620 N.W.2d 42, 44–45 (Minn. 2000) (holding that appellant had the right to withdraw his guilty plea where the conditional release term resulted in a sentence that exceeded the upper limit of the court-accepted plea petition, thus violating that agreement); State v. Wukawitz, 662 N.W.2d 517, 528–29 (Minn. 2003).  We conclude that appellant was properly sentenced.

2.  Blakely

            Appellant argues that according to the sentencing guidelines, the maximum sentence he should have received under Apprendi and Blakely was 66 months.  He contends that his sentence of 42 months, plus the conditional release period of 60 months, amounted to a 102-month sentence, which exceeds the 66-month maximum.  Appellant argues that his sentence thus violates Apprendi and Blakely.  We disagree.

            Neither Apprendi nor Blakely prevents the district court from imposing the mandatory five-year period of conditional release.  See Minn. Stat. § 169A.276, subd. 1(d) (2004).  Respondent directs us to State v. Jones, a criminal sexual conduct case, holding that “[t]he imposition of the 5-year conditional release term under Minn. Stat. § 609.109, subd. 7, is permissible under Apprendi.”  659 N.W.2d 748, 753 (Minn. 2003).  The court in Jones determined that the five-year conditional release term did not require the district court to make any additional findings of fact; it was mandated by the statute.  Id.  The same analysis applies here, except the applicable statute is Minn. Stat. § 169A.276, subd. 1(d).  The relevant language of Minn. Stat. § 609.109, subd. 7 (the sex-offender statute), is almost identical to that of Minn. Stat. § 169A.276, subd. 1(d) (the DWI statute).  Just as in Jones, here the district court did not have to make any additional findings of fact and did not err in sentencing appellant.

3.  Equal Protection and Due Process

            Appellant argues that Minn. Stat. § 169A.276, subd. 1(d) (2004), violates the equal-protection and due-process clauses of the federal and state constitutions.  Minnesota statutes are presumed to be constitutional, and the party challenging a statute on constitutional grounds “must demonstrate, beyond a reasonable doubt, that the statute violates a provision of the constitution.”  Grossman, 636 N.W.2d at 548.  Appellant fails to demonstrate the statute’s unconstitutionality.

            Appellant’s equal-protection argument is that no offender or group of offenders “[is] supposed to be judged more harshly.”  Appellant contends that conditional release is unconstitutional unless it “applies to all crimes and/or all offenders.”  Appellant provides mere assertions, without legal support or citation.  “An assignment of error based on mere assertion and not supported by any argument or authorities” is waived unless “prejudicial error is obvious on mere inspection.”  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation omitted).  Even if we were to consider this argument, it is meritless as the state has not treated similarly situated persons differently here.  See State v. Nw. Preparatory Sch., Inc., 228 Minn. 363, 365, 37 N.W.2d 370, 371 (Minn. 1949) (stating that the law requires the state to treat all similarly-situated persons alike).  Appellant’s sentence was no different from that imposed upon any similarly situated defendant charged under Minn. Stat. § 169A.24 (2004).  In other words, the conditional release term is only applied to those DWI offenders who (1) are convicted of first-degree driving while impaired having committed the instant violation “within ten years of the first of three or more qualified prior impaired driving incidents; or (2) have previously been convicted of a felony under this section.”  Id., subds. 1(1), (2), 2.  Thus, appellant’s equal-protection claim has no merit.

            Appellant further asserts that Minn. Stat. § 169A.276, subd. 1(d), also violates the due-process clause, because by adding the conditional release period, the sentence exceeded the maximum sentence under the guidelines.  This argument is substantively the same as appellant’s Blakely argument and, for the reasons articulated in that portion of this opinion, we again reject appellant’s claim.

4.  Conflicting Statutes

            Appellant argues that Minn. Stat. § 169A.276, subd. 1(d), is unconstitutional because “it directly violates and contradicts” Minn. Stat. § 244.05, subd. 1 (2004), which provides that:  except for sex offenders, the supervised release of a non-sex offender inmate “shall be equal to the period of good time the inmate has earned, and shall not exceed the length of time remaining in the inmate’s sentence.”  As respondent correctly asserts, appellant confuses the terms “supervised release” and “conditional release,” which are not interchangeable.[2]  Section 244.05, subdivision 1, deals with supervised release, while section 169A.276, subdivision 1(d), refers to conditional release.  The statutes do not conflict because they cover completely different concepts. 

5.  Guilty Plea

            In his pro se brief, appellant requests that we vacate the five-year period of conditional release in his sentence; he does not request withdrawal of his guilty plea.  Briefly, at the end of his petition for postconviction relief, appellant states that the district court could address the following arguments if it would like to do so, “even though [the arguments were] not specifically raised by the petitioner, such as . . . his right not to be induced to enter a plea of guilty by misunderstanding or lack of knowledge.”  Appellant does not otherwise elaborate on this vague claim, and he provides no factual support for the claim.  Furthermore, the district court did not address the validity of appellant’s guilty plea in its order denying appellant’s request for postconviction relief.  Moreover, appellant does not argue that his guilty plea was invalid in his appellate brief, although he does assert this claim in his reply brief.  Issues not raised in appellant’s brief cannot be revived in a reply brief.  McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).  For all of the above reasons, we decline to address this issue.

            But even if this court were to attempt to consider the validity of appellant’s guilty plea, it is virtually impossible to do so without a transcript.  And as noted earlier, appellant did not request a transcript.  As a general rule, the appellant bears the burden of providing an adequate record.  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995).  It is the appellant’s duty to order a transcript “of those parts of the proceedings not already part of the record which are deemed necessary for inclusion in the record.”  Minn. R. Civ. App. P. 110.02, subd.1(a). 

            Because the district court did not abuse its discretion in denying appellant’s petition for postconviction relief, and because Minn. Stat. § 169A.276, subd. 1(d) (2004), is not unconstitutional, we affirm.

            Affirmed.