                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2012).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-1112

                            Michael Ray Whipple, petitioner,
                                      Appellant,

                                           vs.

                                   State of Minnesota,
                                      Respondent.

                               Filed December 29, 2014
                                       Affirmed
                                   Bjorkman, Judge

                           Crow Wing County District Court
                              File No. 18-K4-05-001644

Michael R. Whipple, Moose Lake, Minnesota (pro se appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Donald F. Ryan, Crow Wing County Attorney, Rockwell J. Wells, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

      Considered and decided by Bjorkman, Presiding Judge; Halbrooks, Judge; and

Connolly, Judge.

                        UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges the district court’s denial of his motion to correct his

sentence on the ground that his ten-year conditional-release period is not authorized by

the applicable sentencing statute. We affirm.
                                         FACTS

       In July 2005, the state charged appellant Michael Ray Whipple with two counts of

third-degree criminal sexual conduct based on allegations that he had sexual intercourse

with a mentally disabled 15-year-old girl on July 3, 2005. He pleaded guilty to one count

of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(b)

(2004), and the state dismissed the remaining charge. In November 2005, the district

court sentenced Whipple to 48 months’ imprisonment, the presumptive guidelines

sentence. The sentence included a ten-year conditional-release period under Minn. Stat.

§ 609.109, subd. 7 (2004) (repealed 2006), based on Whipple’s 1986 South Dakota first-

degree rape conviction.

       Whipple did not appeal. In March 2012, he petitioned the district court for

postconviction relief, seeking to withdraw his guilty plea. The district court denied his

request, concluding that his petition was time-barred; this court affirmed. Whipple v.

State, No. A12-1713, 2013 WL 2372168, at *3 (Minn. App. June 3, 2013), review denied

(Minn. Aug. 20, 2013).

       Whipple later moved the district court to correct his sentence under Minn. R.

Crim. P. 27.03, subd. 9, arguing that his ten-year conditional-release period was illegal

and that a five-year conditional-release period should have been imposed. The district

court denied the motion. Whipple appeals.

                                     DECISION

       Minn. R. Crim. P. 27.03, subd. 9, provides that a district court “may at any time

correct a sentence not authorized by law.” We will not reverse a district court’s denial of


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such a motion “unless the district court abused its discretion or the original sentence was

unauthorized by law.” State v. Amundson, 828 N.W.2d 747, 752 (Minn. App. 2013). A

sentence is unauthorized by law if it is contrary to the requirements of the applicable

sentencing statute. State v. Cook, 617 N.W.2d 417, 419 (Minn. App. 2000), review

denied (Minn. Nov. 21, 2000).

       Whipple argues that (1) the ten-year conditional-release period does not apply to

him because it was not the law at the time of his 19861 and 2005 convictions;

(2) consideration of his 1986 offense to increase the conditional-release period violates

the ex post facto provisions of the federal and state constitutions; and (3) the district court

erred by denying him an evidentiary hearing on his rule 27 motion. We address each

argument in turn.

       First, Whipple asserts that the sentencing statute in effect at the time of the 2005

offense does not, by its terms, permit imposition of a ten-year conditional-release period.

We disagree. Minn. Stat. § 609.109, subd. 7, states:

              Notwithstanding the statutory maximum sentence otherwise
              applicable to the offense or any provision of the Sentencing
              Guidelines, when a court sentences a person to prison for a
              violation of section 609.342, 609.343, 609.344, or 609.345,
              the court shall provide that after the person has completed the
              sentence imposed, the commissioner of corrections shall
              place the person on conditional release. If the person was
              convicted for a violation of section 609.342, 609.343,
              609.344, or 609.345, the person shall be placed on conditional
              release for five years, minus the time the person served on

1
  Whipple references criminal-sexual-conduct convictions from 1976 and 1982 rather
than the 1986 conviction on which the district court relied. Because the 1986 conviction
is sufficient to support a ten-year conditional-release period under Minn. Stat. § 609.109,
we do not address the earlier convictions.

                                              3
              supervised release. If the person was convicted for a
              violation of one of those sections after a previous sex offense
              conviction as defined in subdivision 5, or sentenced under
              subdivision 6 to a mandatory departure, the person shall be
              placed on conditional release for ten years, minus the time
              the person served on supervised release.

(Emphasis added.)     Subdivision 5 defines “sex offense” as “a violation of sections

609.342 to 609.345 or any similar statute of the United States, this state, or any other

state.” Minn. Stat. § 609.109, subd. 5 (2004). The ten-year conditional-release period in

subdivision 7, originally went into effect on August 1, 1998. 1998 Minn. Laws ch. 367,

art. 6, § 6, at 729-31 (enacting section 609.109).         In other words, the extended

conditional-release provision was in effect at the time of Whipple’s 2005 offense.

       Second, while Whipple does not deny that his 1986 conviction qualifies as a

previous sex offense, he asserts that consideration of his 1986 conviction to support the

ten-year conditional-release period violates the ex post facto provisions of the state and

federal constitutions. U.S. Const. art. I, § 10; Minn. Const. art. I, § 11. We are not

persuaded. Our supreme court rejected this argument in State v. Willis, holding that

“[t]he use of prior convictions to increase punishment for an underlying substantive

offense committed after the effective date of a statute providing for increased penalties

does not violate the ex post facto provisions of either the state or federal constitutions.”

332 N.W.2d 180, 185 (Minn. 1983). As in Willis, Whipple’s ten-year conditional-release

period is part of the criminal penalty for his 2005 criminal-sexual-conduct conviction—

not a penalty for his 1986 conviction. See id. (stating that an amendment to a statute that

increased a penalty for a current offense based on a previous conviction “increased the



                                             4
possible penalty for the latest crime”); Cook, 617 N.W.2d at 418, 420 (holding that a

prior 1988 conviction for intrafamilial sexual abuse was a qualifying conviction

triggering a ten-year term of conditional release under Minn. Stat. § 609.109, subd. 7).

“Merely allowing a conviction obtained before the [statute was enacted] to be used in the

assessment of the penalty for a subsequent offense does not violate the constitution.”

Willis, 332 N.W.2d at 185.

       Third, Whipple argues that the district court erred by denying his request for an

evidentiary hearing on his motion to correct his sentence. We disagree. Minn. R. Crim.

P. 27.03, subd. 9, does not require the district court to hold an evidentiary hearing on a

motion to correct a sentence. State v. Masood, 739 N.W.2d 736, 739 (Minn. App. 2007).

Accordingly, we conclude that the district court did not err by denying Whipple’s request

for an evidentiary hearing.

       Because the ten-year conditional-release period was authorized by law and we

discern no abuse of discretion by the district court, we affirm.

       Affirmed.




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