                          This opinion will be unpublished and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
                                     A15-0466

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                  Forrest Grant Noggle,
                                       Appellant.

                                  Filed August 24, 2015
                                        Affirmed
                                      Smith, Judge

                               Dodge County District Court
                                 File No. 20-CR-07-474

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

Paul J. Kiltinen, Dodge County Attorney. Mantorville, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Stauber, Presiding Judge; Peterson, Judge; and Smith,

Judge.

                         UNPUBLISHED OPINION

SMITH, Judge

         We affirm because the mandatory conditional-release period under Minn. Stat.

§ 609.3455, subd. 6 (2006), applies to convictions for attempts of the enumerated crimes

and because a finding that the need for confinement outweighed the policies supporting

probation was not required when confinement would not result from revocation.
                                         FACTS

       On May 10, 2007, appellant Forrest Noggle initiated a chat conversation over the

internet with a law enforcement officer posing as a 14-year-old girl. Noggle “made clear

he would like to engage in sexual activities” with the girl, then arranged to meet her. On

his arrival at the meeting place, law enforcement officers arrested Noggle.

       The state charged Noggle with solicitation of children to engage in sexual conduct

and attempted third-degree criminal sexual conduct. Noggle pleaded guilty to attempted

third-degree criminal sexual conduct, and the district court dismissed the solicitation

charge. The district court stayed adjudication of guilt and placed Noggle on probation.

       In December 2008, the district court revoked the stay of adjudication after Noggle

violated his probation conditions, then it stayed imposition of his sentence. In 2013, the

state filed another probation violation report in both this case and a Benton County case,

where Noggle was on probation for possession of pornography involving minors. In

Benton County, Noggle’s probation was revoked and a 27-month sentence was imposed.

       In January 2015, the district court held a violation hearing for the 2013 probation

violation. Noggle’s defense counsel informed the district court that Noggle had already

served more than his 18-month sentence because of the Benton County case and that, if

his sentence was executed, Noggle would not serve additional time. The district court

found that Noggle had violated conditions of his probation and that the violations were

intentional and inexcusable, but it did not make a finding that the need for confinement

outweighed the policies favoring probation after confirming that Noggle waived that

finding.   The district court executed an eighteen-month sentence, to be served



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concurrently with Noggle’s Benton County sentence, and imposed a ten-year conditional

release term.

                                     DECISION

                                             I.

       Noggle argues that, because he was convicted of attempted third-degree criminal

sexual conduct, the district court erred by imposing a conditional-release period after his

prison commitment. Noggle contends that the language of Minn. Stat. § 609.3455, subd.

6 (2006), permits a conditional-release period only for a “violation” of section 609.345

and that an attempt is not a violation. In the alternative, Noggle suggests that the term

should be five years, not ten, because Minn. Stat. § 609.17, subd. 4(2) (2006), states that

defendants convicted of attempted crimes should be sentenced to no more than “one-half

of the maximum imprisonment” for the completed crime. A sentence that is unauthorized

by law may be corrected at any time. Minn. R. Crim. P. 27.03, subd. 9. “Interpretation

of a sentencing statute is a question of law which this court reviews de novo.” State v.

Borrego, 661 N.W.2d 663, 666 (Minn. App. 2003).

       A sentence that includes a conditional-release period that is not expressly

authorized by a statute 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 that the district court “exceeded [its] statutory authority by ordering

[defendant] to serve a five-year term of conditional release following his release from

prison”).



                                             3
       Noggle argues that if the legislature had intended to include attempts in the list of

enumerated offenses for which a conditional-release period may be imposed under Minn.

Stat. § 609.345, it would have done so expressly—as it has done in defining the terms

“conviction,” see Minn. Stat. § 609.3455, subd. 1(a)(b) (2006), and “sex offense,” see id.,

subd. 1(h) (2006). Instead, section 609.3455, subds, 9(b), 6, impose a conditional-release

period for “a violation of section . . . 609.345,” which language, Noggle argues, does not

include attempts.

       Noggle’s argument that the term “violation” does not include attempt is

unpersuasive. First, Minnesota courts routinely describe attempt crimes as violations of

both the attempt statute, Minn. Stat. § 609.17 (2006), and the statute defining the crime

attempted. See, e.g., State v. Vang, 847 N.W.2d 248, 255 (Minn. 2014) (“[A]ttempted

first-degree felony murder (drive-by shooting), in violation of Minn. Stat. §§ 609.17

(2012), 609.185(a)(3)”). Because a defendant cannot be convicted of attempt without an

underlying crime that was attempted, any conviction for an attempted crime is a violation

of both the attempt statute and the statute defining the underlying crime.

       Second, attempt convictions do not affect whether the conditional-release period is

mandatory or not. The Minnesota Sentencing Guidelines refer to attempt as a “sentence

modifier,” rather than a crime distinct from the attempted offense.            Minn. Sent.

Guidelines 2.A.5 (2015); see also Minn. Sent. Guidelines 2.G.1 (2015) (“Sentence

modifiers are statutes that aid in defining the punishment for the underlying offense.”).

       Third, the statute limiting punishment for attempts to one-half the punishment for

completed offenses does not govern the conditional-release period because the

subdivision is expressly limited to “imprisonment or fine.” Minn. Stat. § 609.17, subd.
                                             4
4(2). “The doctrine expressio unius est exclusio alterius means that the expression of one

thing is the exclusion of another.” State v. Caldwell, 803 N.W.2d 373, 383 (Minn. 2011).

Therefore, by stating that imprisonment and fines may be halved for attempt convictions,

we may infer that the legislature intentionally excluded conditional-release periods from

reduction. See id. In addition, the Minnesota Supreme Court has held that specific

statutes, like those that govern the sentencing of sex offenders, control over general

statutes, like the attempt statute. State v. Ronquist, 600 N.W.2d 444, 447 (Minn. 1999).

       Noggle cites State v. Johnson, 756 N.W.2d 883, 895 (Minn. App. 2008), review

denied (Minn. Dec. 23, 2008), for the contention that to impose the full ten-year

conditional-release period would ignore the policy of treating attempt crimes as less-

serious offenses than completed crimes. However, Johnson is inapposite because it

considers permissive consecutive sentencing under a provision that separately listed one

attempt offense but no others, not a mandatory conditional-release period imposed where

all attempts of the designated offenses are treated the same. Johnson, 756 N.W.2d at 895.

Therefore, the district court did not err by ordering a ten-year conditional-release period.

                                             II.

       Noggle also argues that the district court erred by revoking his probation without

making a finding that the need for confinement outweighed the policies favoring

probation.   “[W]hether a lower court has made the findings required under Austin

presents a question of law,” which we review de novo. State v. Modtland, 695 N.W.2d

602, 605 (Minn. 2005).

       A district court must make three findings to revoke a defendant’s probation:

(1) that the defendant violated a specific condition or conditions; (2) that the violations
                                              5
were intentional or inexcusable; and (3) that the need for confinement outweighs the

policies favoring probation.    State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).

“[D]efendants do not bear the burden of requesting that district courts make the required

Austin findings.” Modtland, 695 N.W.2d at 606.

       Here, defense counsel noted at the violation hearing that, if the district court

executed Noggle’s sentence, he would not serve any additional time because he had

already been in custody for longer than his sentence, therefore the executed sentence

would only trigger conditional release. The district court thus made findings on the first

two Austin factors. Regarding the third, the prosecutor asked, “Are they waiving [the]

third Austin factor?,” and defense counsel replied, “Yes, Your Honor.” The district court

made no findings on the third factor and proceeded directly to sentencing.

       Here, the district court properly allowed Noggle to waive a finding on the third

factor because none of the reasons behind the third Austin factor applied when

confinement was not a possible outcome.         Simply put, a finding that the need for

confinement outweighed the policies favoring probation would have been nonsensical

under the circumstances. Therefore, we find that the district court did not err by revoking

Noggle’s probation because a finding on the third Austin factor was not required when

confinement would not result from revocation.

       Affirmed.




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