                        This opinion will be unpublished and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
                                   A14-1364

                                 State of Minnesota,
                                    Respondent,

                                         vs.

                                Derik Chester Rekdal,
                                     Appellant.

                              Filed November 16, 2015
                              Reversed and remanded
                                  Connolly, Judge

                            Dakota County District Court
                            File No. 19HA-CR-11-1992


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

James Backstrom, Dakota County Attorney, Jessica Ann Bierwerth, Stacy Ann
St. George, Assistant County Attorneys, Hastings, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann,
Assistant Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and

Rodenberg, Judge.
                         UNPUBLISHED OPINION

CONNOLLY, Judge

       In this sentencing appeal, appellant challenges the district court’s imposition of

lifetime conditional release periods for two criminal sexual conduct convictions that

occurred virtually simultaneously in time when the record does not reflect that appellant

had any other previous or prior convictions for criminal sexual conduct. We reverse and

remand.

                                          FACTS

       In the fall of 2010 through the early months of 2011, appellant Derik Chester

Rekdal, 19 at the time, had sexual intercourse with two girls, ages 14 and 15. On August

15, 2011 appellant pleaded guilty to two counts of criminal sexual conduct in the third

degree as part of a plea agreement. At the plea hearing, the district court informed

appellant that once sentenced, he would be subject to a ten-year conditional release

period if he violated probation and was sent to prison.

       On October 18, 2011, at the sentencing hearing, a different district court judge

ruled that if the sentences were to be executed, then appellant would be sentenced to

lifetime conditional release. At the sentencing hearing, the district court judge accepted

the guilty plea stating, “[W]ith respect to your pleas of guilty to, I believe it was, Count I

and II of the complaint, both Criminal Sexual Conduct in the Third Degree, I’m going to

accept your pleas of guilty on those offenses.” The district court stayed the imposition of

the sentence on both counts and placed appellant on probation for ten years.




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       In 2012 and 2013, appellant admitted to several violations of his conditions of

probation. During this time, the district court continued appellant on probation. In May

of 2014, appellant admitted to a third probation violation. At the third probation violation

hearing, a third district court judge revoked appellant’s stay of imposition and imposed

executed prison sentences of 36 months on Count I and 48 months on Count II to run

concurrently. Additionally, the district court pronounced that appellant was subject to

lifetime conditional release on both counts.

                                     DECISION

       Consistent with the Minnesota Supreme Court decision in State v. Nodes, 863

N.W.2d 77, 82 (Minn. 2015), a defendant who, in a single hearing, is convicted of two

sex offenses, one immediately after the other, each arising out of separate behavioral

incidents, has a “prior sex offense conviction” under Minn. Stat. § 609.3455, subd. 1(g)

(2014), and is subject to lifetime conditional release. Appellant argues that the district

court simultaneously convicted appellant of two criminal sexual conduct offenses rather

than one conviction occurring immediately after the other. As a result, appellant argues

he was never convicted of any prior or previous sexual offense and can only be sentenced

to the ten-year conditional release period. The state agrees.

       Statutory interpretation is a question of law that is subject to de novo review.

Christianson v. Henke, 831 N.W.2d 532, 535 (Minn. 2013). First, the court must

determine whether the statute is ambiguous. State v. Jones, 848 N.W.2d 528, 535 (Minn.

2014). A statute is ambiguous “when the statutory language is subject to more than one

reasonable interpretation.” State v. Fleck, 810 N.W.2d 303, 307 (Minn. 2012). If a


                                               3
statute is susceptible to only one reasonable interpretation, the court interprets the statute

according to its plain meaning. State v. Nelson, 842 N.W.2d 433, 436 (Minn. 2014).

       When a court commits an offender to the custody of the commissioner of

corrections for a violation of criminal sexual assault in the third degree, “the court shall

provide that, after the offender has been released from prison, the commissioner shall

place the offender on conditional release for ten years.” Minn. Stat. § 609.3455, subd. 6

(2014).   Alternatively, when the court commits an offender to the custody of the

commissioner of corrections for a violation of criminal sexual assault in the third degree

“and the offender has a previous or prior sex offense conviction, the court shall provide

that, after the offender has been released from prison, the commissioner shall place the

offender on conditional release for the remainder of the offender’s life.” Minn. Stat.

§ 609.3455, subd. 7(b) (2014).

       By statutory definition, an offender has a

              ‘prior sex offense conviction’ if the offender was convicted of
              committing a sex offense before the offender has been
              convicted of the present offense, regardless of whether the
              offender was convicted for the first offense before the
              commission of the present offense, and the convictions
              involved separate behavioral incidents.

Minn. Stat. § 609.3455, subd. 1(g) (2014). By contrast, the definition of the phrase

“previous sex offense conviction” requires that the offender be “convicted and sentenced

for a sex offense before the commission of the present offense.” Minn. Stat. § 609.3455,

subd. 1(f) (2014).




                                              4
        “Conviction” is defined as “any of the following accepted and recorded by the

court: (1) a plea of guilty; or (2) a verdict of guilty by a jury or a finding of guilty by the

court.” Minn. Stat. § 609.02, subd. 5 (2014). In State v. Nodes, the Minnesota Supreme

Court held that Minn. Stat. § 609.02 “clearly and unambiguously provides that a

‘conviction’ occurs when the district court accepts the guilty plea and the acceptance is

on the record.” 863 N.W.2d at 81. “As long as one conviction is entered before the

second, it is a ‘prior conviction’ under the plain language of [Minn. Stat. § 609.3455].”

Id. at 82.

       This appeal involves a similar issue to the Minnesota Supreme Court’s decision in

State v. Nodes and thus, discussion of Nodes is warranted. Similar to the current case,

Nodes involved a defendant, who had never before been sentenced for a sex offense, and

who pleaded guilty to two sex offenses at the same hearing. On the record at the

sentencing hearing in Nodes the trial judge stated,

              I will now formally accept the pleas, and on count one
              adjudicate him guilty of criminal sexual conduct in the first
              degree, a felony, in violation of Minnesota Statute 609.342,
              [s]ubd. 1(a) and [s]ubd. 2(a), on or about February 26, 2013,
              and also on count three, criminal sexual conduct in the second
              degree, a felony, in violation of Minnesota Statute 609.343,
              [s]ubd. 1(a) and [s]ubd. 2(a) on or about March 19, 2013.

Id. at 79. The Nodes court held, “[a] defendant who, in a single hearing, is convicted of

two sex offenses, one immediately after the other, each arising out of separate behavioral

incidents, has a ‘prior sex offense conviction’ under Minn. Stat. § 609.3455.” Id. at 77.

The court in Nodes ruled that at the time the judge accepted the guilty plea of count one,

the defendant was “convicted” and thus, even though the passage of time between the


                                              5
conviction of count one and count two was slight, the defendant had a prior conviction

under Minn. Stat. § 609.3455 and was sentenced to lifetime conditional release. Id. at 81.

       By contrast, in the current case, at the original sentencing hearing, the district

court judge merely stated, “with respect to your pleas of guilty to, I believe it was, Count

I and II of the complaint, both Criminal Sexual Conduct in the Third Degree, I’m going

to accept your pleas of guilty on those offenses.” The acceptance of the guilty pleas

occurred simultaneously. Under Nodes, a conviction at the same hearing will only be

treated as a prior conviction if the defendant is “convicted of two sex offenses, one

immediately after the other, each arising out of separate behavior incidents.” Id. at 77

(emphasis added). The district court accepted the pleas simultaneously. As a result,

appellant was not convicted of one count before he was convicted of the other. By

definition, appellant had no previous or prior convictions at the time he was sentenced.

       Because the district court erred in imposing lifetime conditional release on

appellant, we reverse and remand the case to the district court for imposition of a ten-year

conditional release period on each count.

       Reversed and remanded.




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