                           This opinion will be unpublished and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
                                      A15-1137

                                    State of Minnesota,
                                        Respondent,

                                             vs.

                                     Lamont Bugg, Jr.,
                                        Appellant

                                 Filed February 22, 2016
                                 Reversed and remanded
                                      Worke, Judge

                              Hennepin County District Court
                                 File No. 27-CR-14-6595

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy R. Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Kirk,

Judge.

                          UNPUBLISHED OPINION

WORKE, Judge

         Nearly a year after appellant was sentenced for failure to register as a predatory

offender, the district court sua sponte amended his sentence to add a ten-year conditional-
release term under Minn. Stat. § 243.166, subd. 5a (Supp. 2013). The conditional-release

term was added based on the district court’s implicit finding that appellant was a risk-level-

III offender at the time of his failure to register. Appellant argues that the addition of the

conditional-release term violates his Sixth Amendment rights, and we reverse and remand.

                                       DECISION

       An alleged violation of constitutional rights presents a question of law, which we

review de novo. State v. Bobo, 770 N.W.2d 129, 139 (Minn. 2009).

       On May 13, 2014, appellant Lamont Bugg, Jr., pleaded guilty and was sentenced to

18 months in prison for failing to register as a predatory offender, in violation of Minn.

Stat. § 243.166, subd. 5(a) (2012). On April 14, 2015, a management analyst at Minnesota

Correctional Facility-Faribault sent the district court a letter stating that pursuant to statute,

if an offender fails to register, and at the time of the violation is assigned to risk level III,

the commissioner of corrections shall place the offender on conditional-release for ten

years. See Minn. Stat. § 243.166, subd. 5a. The letter pointed out that Bugg’s warrant of

commitment was silent regarding a conditional-release term and asked that an amended

sentencing order be issued. On April 30, 2015, the district court issued an amended

sentencing order requiring that “[a]fter [d]efendant has completed the sentence imposed,

the commissioner shall place the person on conditional release for 10 years.”

       Bugg argues that the district court’s imposition of a ten-year conditional-release

term under Minn. Stat. § 234.166, subd. 5a, without any jury finding or admission that at

the time of the offense he was a risk-level-III offender violates his Sixth Amendment rights.

We agree.


                                                2
       The Sixth Amendment to the United States Constitution requires that, “[o]ther than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 2536 (2004) (quoting

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63 (2000)). The

presumptive sentencing range in the Minnesota Sentencing Guidelines determines the

maximum sentence a district court may impose without additional fact-finding by a jury or

an admission by the defendant. State v. Shattuck, 704 N.W.2d 131, 141–42 (Minn. 2005).

       Minn. Stat. § 243.166, subd. 5a, provides:

                     Notwithstanding the statutory maximum sentence . . .
              when a court commits a person to the custody of the
              commissioner of corrections for violating subdivision 5 and, at
              the time of the violation, the person was assigned to risk level
              III under section 244.052, the court shall provide that after the
              person has been released from prison, the commissioner shall
              place the person on conditional release for ten years.

The Minnesota Supreme Court recently held in State v. Her that the ten-year conditional-

release term in Minn. Stat. § 243.166, subd. 5a, may not be imposed without an admission

by the defendant or a finding by a jury based on proof beyond a reasonable doubt that at

the time the defendant violated Minn. Stat. § 243.166, subd. 5(a), he was designated a risk-

level-III offender. 862 N.W.2d 692, 693 (Minn. 2015). The supreme court reversed this

court’s ruling that the prior-conviction exception applies to a determination of an

offender’s risk level. Id. at 700.

       Bugg did not admit that he was a risk-level-III offender at the time of the violation,

and a jury did not make this determination. Accordingly, as the state concedes, imposition


                                             3
of the ten-year conditional-release term violated Bugg’s Sixth Amendment rights. See Her,

862 N.W.2d at 693. We therefore reverse the amended sentencing order adding the

conditional-release term.

       The only remaining question is the remedy. In Her, the supreme court declined to

determine the proper remedy for the constitutional violation. 862 N.W.2d at 700 n.4. The

court stated that “[b]ecause neither party has addressed, nor did we grant review on, the

appropriate remedy for the constitutional violation in this case, we express no opinion on

the subject and leave it to the district court on remand to determine the remedy.” Bugg

argues that we should prohibit the district court from impaneling a sentencing jury on

remand because re-imposition of the conditional-release term after a jury finding would

violate double jeopardy. He also argues that imposition of the conditional-release term

would violate his plea agreement. The state argues that we should follow Her and allow

the district court to determine whether it is appropriate to impanel a sentencing jury.

       Bugg brought his challenge to the amended sentencing order directly to this court;

therefore, the district court has not had an opportunity to address any of Bugg’s arguments.

This court generally will not decide issues, including constitutional issues, not raised before

the district court. State v. Busse, 644 N.W.2d 79, 89 (Minn. 2002). But this court may

decide issues not raised before the district court if “the interests of justice require their

consideration and addressing them would not work an unfair surprise on a party.” Id.

(quotation omitted). Although it is appropriate to reverse the amended sentencing order,

we do not believe that the interests of justice require us to consider Bugg’s remedy claims

at this time. There are issues related to the appropriate remedy that are not fully developed


                                              4
in the briefing and would be better addressed initially by the district court. We further note

that the decision to convene a sentencing jury generally rests within the discretion of the

district court. State v. Masood, 739 N.W.2d 736, 740 (Minn. App. 2007). If, on remand,

the district court chooses to convene a sentencing jury and the conditional-release term is

re-imposed, Bugg may appeal the district court’s decision at that time. We therefore permit

the parties to re-argue this issue before the district court and leave it to the district court to

determine the appropriate remedy.

       Reversed and remanded.




                                                5
