                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1844

                         Christopher Eugene Wheeler, petitioner,
                                       Appellant,

                                           vs.

                                   State of Minnesota,
                                      Respondent.

                                   Filed June 29, 2015
                                        Affirmed
                                    Schellhas, Judge

                            Crow Wing County District Court
                               File No. 18-KX-98-000817

Cathryn Middlebrook, Chief Appellate Public Defender, F. Richard Gallo, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

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

         Considered and decided by Schellhas, Presiding Judge; Larkin, Judge; and Reyes,

Judge.
                        UNPUBLISHED OPINION

SCHELLHAS, Judge

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

sentence, arguing that the conditional-release portion of his sentence is unauthorized by

law. We affirm.

                                         FACTS

       In April 1998, 16-year-old victim L.W. disclosed sexual abuse to a mandated

reporter. L.W. subsequently told a police investigator that her adult brother, appellant

Christopher Eugene Wheeler, had forced her to engage in sexual intercourse “since she

was 10 years old . . . on numerous locations [sic] at various locations.” Respondent State

of Minnesota charged Wheeler with two counts of first-degree criminal sexual conduct

under Minn. Stat. § 609.342, subd. 1(a) (sexual penetration with complainant under 13

years of age and more than 36 months younger than actor), (g) (sexual penetration with

complainant under 16 years of age and with significant relationship to actor).

       The state and Wheeler reached a plea agreement in October 1998. In accordance

with that agreement, the state amended the complaint; Wheeler pleaded guilty to two

counts of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(g)

(sexual contact with complainant under 16 years of age and with significant relationship

to actor), and admitted to violating the terms of his probation on two prior convictions of

third-degree criminal sexual conduct; and the district court sentenced Wheeler to 97.5

months’ imprisonment and 10 years’ conditional release for the first conviction of

second-degree criminal sexual conduct, 90 months’ consecutive imprisonment and 10


                                            2
years’ consecutive conditional release for the second conviction of second-degree

criminal sexual conduct, and 18 months’ consecutive imprisonment and 10 years’

consecutive conditional release for each of the two probation violations.

       In July 2014, Wheeler moved for correction of his sentence under Minn. R. Crim.

P. 27.03, seeking removal of the conditional-release periods which he was then serving.

The district court denied the motion.

       This appeal follows.

                                        DECISION

       A sentence that is unauthorized by law may be corrected at any time. Minn. R.

Crim. P. 27.03, subd. 9. “[Appellate courts] review the district court’s denial of a motion

to correct a sentence for an abuse of discretion. Specifically, [appellate courts] review the

district court’s legal conclusions de novo and its factual findings under the clearly

erroneous standard.” Townsend v. State, 834 N.W.2d 736, 738 (Minn. 2013) (citation

omitted), cert. dismissed, 134 S. Ct. 1038 (2014).

       “When a statute mandates a period of conditional release, any sentence that omits

the conditional-release period is unauthorized.” Kubrom v. State, ___ N.W.2d ___, ___,

2015 WL 1514004, at *3 (Minn. App. Apr. 6, 2015) (citing State v. Humes, 581 N.W.2d

317, 319 (Minn. 1998)). Relatedly, a sentence that includes a conditional-release period,

despite the absence of a statute expressly providing for such inclusion, is a sentence that

is unauthorized by law. See State v. Brooks, 555 N.W.2d 761, 762 (Minn. App. 1996)

(stating that “[i]t appears that there is no statutory authority to require an offender who

has completed an executed sentence to serve a term of conditional release,” and holding


                                             3
that district court therefore “exceeded [its] statutory authority by ordering [defendant] to

serve a five-year term of conditional release following his release from prison”); cf.

Miller v. State, 714 N.W.2d 745, 747–48 (Minn. App. 2006) (reasoning that district court

had no sentencing power to impose consecutive terms of conditional release when

legislature did not provide clear statement authorizing same, and concluding that

defendant’s “consecutive conditional release sentences were unauthorized as a matter of

law”).1

       In 1992, the Minnesota Legislature mandated the inclusion of a conditional-release

period in the sentence for a conviction of criminal sexual conduct in the first, second,

third, or fourth degree.2 See 1992 Minn. Laws ch. 571, art. 1, § 25, at 2002 (providing

that “[t]he court shall sentence a person convicted for a violation of section 609.342,

609.343, 609.344, or 609.345 to serve a supervised release term of not less than five

years” and “shall sentence a person convicted for a violation of one of those sections a

second or subsequent time . . . to serve a supervised release term of not less than ten

years” (emphasis added));3 Humes, 581 N.W.2d at 319 (concluding that “the plain

language of [Minn. Stat. § 609.346, subd. 5(a)] clearly indicates that a conditional release

1
  As noted by the district court in this case, “[Miller] involved a matter of first impression
in 2006, and [Wheeler] has not provided any authority to establish that [Miller’s
prohibition of consecutive conditional-release periods] . . . appl[ies] retroactively” to
Wheeler’s 1998 sentence, which included consecutive conditional-release periods.
2
  That legislative mandate was originally codified at Minn. Stat. § 609.346, subd. 5(a)
(1992), and is now codified at Minn. Stat. § 609.3455, subds. 6–7 (2014). See 2005 Minn.
Laws ch. 136, art. 2, § 21, at 929, 931–32; 1992 Minn. Laws ch. 571, art. 1, § 25, at 2002.
3
 In 1993, this “supervised release” was renamed “conditional release.” See 1993 Minn.
Laws ch. 326, art. 9, § 9, at 2089.

                                              4
term must be included in the sentence of every sex offender covered” by it). But the

requirement of a conditional-release period does not apply to criminal sexual conduct that

was committed before August 1, 1992. See 1992 Minn. Laws ch. 571, art. 1, § 29, at

2002–04 (providing that “[s]ections . . . 10 to 26 are effective August 1, 1992, and apply

to crimes committed on or after that date”).

       In this case, Wheeler’s sentence for his criminal-sexual-conduct convictions

includes conditional-release periods. Wheeler now asserts that the plea record does not

show that he committed the offenses on or after August 1, 1992. Accordingly, he argues,

the conditional-release portion of his sentence is unauthorized by law, since no statute

that was applicable on the date(s) of his offenses provides for the inclusion of a

conditional-release period in a sentence for second-degree criminal sexual conduct.

       “It is well established that a defendant, by his plea of guilty, in effect judicially

admits the allegations contained in the complaint.” Rickert v. State, 795 N.W.2d 236, 242

(Minn. 2011) (quotation omitted). Indeed, “the entry of a guilty plea has the legal effect

of establishing the facts alleged in the complaint by judicial admission.” Id. at 243 n.3.

The date on which an offense occurred is a question of fact. State v. DeRosier, 719

N.W.2d 900, 903–04 (Minn. 2006).

       Here, the charging portion of the April 1998 complaint alleges that “on the past six

years at various locations,” Wheeler committed first-degree criminal sexual conduct by

“engag[ing] in sexual penetration with [L.W.]” before her 13th birthday while being more

than 36 months older than L.W. and by “engag[ing] in sexual penetration with [L.W.]”




                                               5
before her 16th birthday while being in a significant relationship with her. 4 Although

Wheeler pleaded guilty to two counts of second-degree criminal sexual conduct (sexual

contact with complainant under 16 years of age and with significant relationship to actor),

as charged in a “new complaint,” the record contains no amended complaint and nothing

to indicate that the state ever amended the April 1998 complaint’s offense-date

allegation. Therefore, by entering his guilty plea, Wheeler judicially admitted that the

offenses occurred “on the past six years.” And at his plea hearing, Wheeler also admitted,

in relevant part, (1) that he had had at least “two separate occasions” of sexual contact

with L.W. before her 16th birthday—i.e., before February 19, 1998—and (2) that he was

being charged with sexual contact “that took place in a time frame probably as far back as

1992.”

         The supreme court faced similar facts in Rickert, a case in which the defendant

pleaded guilty to first-degree criminal sexual conduct and received a sentence that

included “the 10-year conditional release term mandated by section 609.3455,

subdivision 6, for crimes committed on or after August 1, 2005.” 795 N.W.2d at 238. At

his plea hearing, “[the defendant] admitted that he engaged in sexual penetration with

[the victim] ‘on a number of occasions, between the time periods of 2003 and 2006.’” Id.

On appeal, the defendant argued that the plea record was “insufficient to establish that

4
  The parties also discuss language from the probable-cause portion of the April 1998
complaint—namely, that “[L.W.] stated that since she was 10 years old . . . Wheeler . . .
forced her to engage in sexual intercourse on numerous locations [sic] at various
locations.” Because the quoted language merely reports L.W.’s statement, rather than
alleging as fact the substance of that statement, we do not consider it. Cf. Rickert, 795
N.W.2d at 243 n.3 (stating that “a guilty plea has the legal effect of establishing the facts
alleged in the complaint” (emphasis added)).

                                             6
any conduct occurred after August 1, 2005.” Id. at 242. The supreme court rejected that

argument, first noting that the complaint alleged that the sexual penetration had occurred

“‘[o]n or about 2003 through 2006’” and determining that the defendant’s guilty plea was

a judicial admission of the offense-date allegation. Id. at 243 (emphasis added). The court

continued: “The word ‘through’ is commonly understood to mean ‘from the beginning to

the end.’ The American Heritage Dictionary of the English Language 1870 (3d ed. 1992).

Thus, by his guilty plea, [the defendant] judicially admitted that he sexually penetrated

[the victim] in 2006.” Id.

       Similarly here, Wheeler’s admission at his plea hearing—that the sexual contact

with which he was being charged “took place in a time frame probably as far back as

1992”—is tantamount to an admission that the sexual contact had occurred “since” 1992.

“Since” may mean “[c]ontinuously from the time when.” The American Heritage

Dictionary of the English Language 1624 (4th ed. 2006). Wheeler’s plea-hearing

admission, then, supports a finding that the sexual contact began sometime in 1992 and

extended beyond 1992. Such an interpretation of Wheeler’s plea-hearing admission is

bolstered by his judicial admission of the April 1998 complaint’s allegation that the

offenses occurred “on the past six years.” “On” may be “[u]sed to indicate occurrence at

a given time.” Id. at 1228. Consequently, Wheeler’s judicial admission supports a finding

that the sexual contact occurred at the given time of 1992 through 1998.

       Wheeler’s plea-hearing and judicial admissions defeat his attempts to rely on State

v. Goldenstein, 505 N.W.2d 332 (Minn. App. 1993), review denied (Minn. Oct. 19,

1993). In Goldenstein, the district court used guidelines with an effective date of


                                            7
August 1, 1989, to sentence the defendants for criminal sexual conduct alleged to have

occurred between May 1987 and May 1990. 505 N.W.2d at 336, 339. On appeal, this

court considered the impact of the state’s “fail[ure] to present evidence establishing that

the offense occurred after August 1, 1989,” ultimately concluding that the district court

“erred in sentencing [the defendants] as though the single incident of sexual misconduct

occurred after August 1, 1989.” Id. at 339–40, 348. But Goldenstein involved convictions

after a jury trial at which “no trial testimony addressed the dates of the offense.” Id. at

348. Wheeler, in contrast, made multiple admissions addressing the dates of his offenses,

rendering Goldenstein inapposite.

       We acknowledge that Wheeler’s plea petition indicates that the offenses, as

originally charged, were “committed on or about Feb. 19, 1992.” Apparently, this date—

L.W.’s tenth birthday—was used to correspond with L.W.’s statement to the investigator

that Wheeler had forced her to engage in sexual intercourse “since she was 10 years old.”

But the facts established by Wheeler’s guilty plea are not limited by the contents of his

plea petition, and the offense date on the petition does not control here. See Rickert, 795

N.W.2d at 242–43 (treating as established facts defendant’s admissions at plea hearing

and his judicial admissions of facts alleged in complaint); cf. State v. Bishop, 545 N.W.2d

689, 691–92 (Minn. App. 1996) (“[I]n determining whether the offenses in this case arose

out of the same behavioral incident, the trial court was not restricted to [defendant]’s

recitation of the facts in his [plea] petition. Rather, the court properly reviewed the entire

record, including the [plea] petition and the transcript of the plea hearing, to determine

whether [defendant]’s two offenses were separate and distinct.”).


                                              8
       We conclude that the district court did not clearly err in finding that some of the

sexual contact between Wheeler and L.W. took place after August 1992. Thus, the

conditional-release statute applies notwithstanding the possibility that some of the sexual

contact preceded August 1992. See Rickert, 795 N.W.2d at 242–43 (concluding that

amended conditional-release statute applied to defendant’s offense of first-degree

criminal sexual conduct, even though statute’s effective date was August 1, 2005, where

defendant judicially admitted to sexual penetration with victim “on or about 2003 through

2006” (quotation marks omitted)). The conditional-release portion of Wheeler’s sentence

was authorized by law.

       We also note that the supreme court recently stated that “where the sentence at

issue is imposed as part of a plea agreement, a motion to change that sentence impacts

more than simply the sentence, and Rule 27.03 does not apply.” State v. Coles, 862

N.W.2d 477, 481 (Minn. 2015). Such a motion “is properly viewed as a petition for

postconviction relief under Minn. Stat. § 590.01, not as a motion to correct a sentence

under Rule 27.03,” and is subject to the two-year time bar on postconviction petitions. Id.

at 482. Here, Wheeler’s 1998 sentence was imposed as part of a plea agreement, and

Wheeler did not move to correct his sentence until 2014. Nevertheless, because the state

did not raise this issue prior to oral argument, we do not consider it. See State v. Morrow,

834 N.W.2d 715, 724 n.4 (Minn. 2013) (stating that issue raised for the first time on oral

argument was waived).

       Affirmed.




                                             9
