                           This opinion will be unpublished and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
                                      A15-0104

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   Forest Grant Noggle,
                                        Appellant.

                                 Filed October 5, 2015
                    Affirmed in part, reversed in part, and remanded
                                     Stauber, Judge

                               Benton County District Court
                                 File No. 05-CR-08-108

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

Philip K. Miller, Benton County Attorney, Rebecca A. Hoffman, Assistant County
Attorney, Foley, Minnesota (for respondent)

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

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

Judge.

                          UNPUBLISHED OPINION

STAUBER, Judge

         Appellant challenges his sentence for possession of a pornographic work involving

a minor, revocation of his probation, and imposition of a ten-year conditional-release
term. We affirm appellant’s sentence and the district court’s order revoking his

probation, but reverse the order imposing a ten-year conditional-release term and remand

to the district court for amendment to a five-year conditional-release term.

                                          FACTS

       In the case on appeal, appellant Forest Grant Noggle pleaded guilty in Benton

County to a charge of possession of a pornographic work involving minors between May

10 and 14, 2007. Noggle pleaded guilty on August 26, 2009, and, in accordance with the

plea agreement, received a stay of adjudication and supervised probation for five years.

       In August 2007, Noggle pleaded guilty to attempted third-degree criminal sexual

conduct in Dodge County, for an incident occurring on May 10, 2007, when Noggle

arranged on the Internet to meet a minor female for sex; this was a sting operation, and

the purported minor female was a police officer. When he was arrested on this charge, he

gave a statement to Benton County police that led to the charge that is the subject of this

appeal. In the Dodge County case, the district court stayed adjudication and placed

Noggle on probation. After a violation hearing in December 2008, the district court

adjudicated Noggle guilty but stayed imposition of sentence. After a second violation

hearing in September 2011, the district court continued the stay of imposition. After a

third violation hearing in January 2015, the district court imposed and executed an 18-

month prison sentence and also imposed a 10-year conditional-release term.

       On December 14, 201l, Noggle admitted to three violations of his probation

conditions in the Benton County case that is the subject of this appeal: (1) being in a

house with a minor child; (2) interruption of his sex-offender-treatment program because


                                             2
of a probation violation; and (3) possession of erotic stories that violated the spirit of the

treatment program. The district court entered the conviction, but stayed imposition of

sentence.

       On October 20, 2014, the Benton County district court held a contested probation-

revocation hearing and found that Noggle had committed multiple additional violations

of his probationary conditions, including accessing computer equipment without

permission; viewing nude photos; accessing pornography, particularly of minor girls;

purchasing a smart phone for Internet access; attempting to establish sexual relationships

online; communicating with a woman who said she was having a sexual relationship with

her daughter; and requesting sexual photos. The district court imposed an executed

sentence of 27 months and a ten-year conditional-release term.

       In this appeal, Noggle challenges both his executed sentence, which he asserts was

improperly calculated under the Minnesota Sentencing Guidelines, and the ten-year

conditional-release term, alleging that they were not authorized by law. Noggle also

contends that the district court abused its discretion by revoking his probation.

                                      DECISION

                                              I.

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

Crim. P. 27.03, subd. 9; State v. Cook, 617 N.W.2d 417, 418-19 (Minn. App. 2000),

review denied (Minn. Nov. 21, 2000). We review the district court’s decision on a

motion for correction of a sentence for an abuse of discretion. Cook, 617 N.W.2d at 419.

“A criminal sentence that is contrary to the requirements of the applicable sentencing


                                               3
statute is unauthorized by law.” Id. Generally, a sentencing court must pronounce a

sentence within the applicable range of the sentencing guidelines, and may not depart

upwardly from the presumptive sentence without identifying substantial and compelling

circumstances. State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014). This court reviews the

district court’s interpretation of the sentencing guidelines de novo. State v. Campbell,

814 N.W.2d 1, 4 (Minn. 2012).

       Noggle argues that his 27-month executed sentence is unauthorized because the

district court used the wrong severity level to determine the presumptive sentence. Minn.

Stat. § 617.247, subd. 4 (2006), prohibits possession of pornographic images of minors;

the maximum sentence for a first-time offense is up to $5,000 or five years in prison, and

up to $10,000 or ten years in prison for a subsequent offense. On the sex-offender

sentencing grid, a first-time violation with one criminal-history point is a “G” severity

level with a presumptive sentence of 20 months; a subsequent offense is an “F” severity

level, with a presumptive sentence of 27 months. Minn. Sent. Guidelines IV (sex-

offender grid). (2006). If the district court used the wrong severity level, the sentence

imposed amounts to an upward durational departure.

       A “subsequent offense” is a violation of the same statute; thus, Noggle’s prior

conviction of attempted third-degree criminal sexual conduct does not make this

conviction a “subsequent offense” and does not compel sentencing under severity level

“F.” See Minn. Stat. § 609.02, subd. 11 (2006) (defining “subsequent offense” to mean

that “prior to the commission of the violation or offense, the actor has been adjudicated




                                              4
guilty of a specified similar violation or offense”); State v. Brown, 433 N.W.2d 433, 435

(Minn. App. 1988) (same), review denied (Minn. Feb. 22, 1989).

       But Minn. Sent. Guidelines IV (sex-offender grid) also designates possession of

child pornography as a severity level F offense if the person is a predatory offender. In

2009, as part of his third-degree criminal-sexual-conduct conviction in Dodge County,

Noggle was required to register as a predatory offender under section 243.166. Thus, at

the time of sentencing on the subject offense, he was a registered sex offender under

section 243.166, and his presumptive sentence on this charge would be determined as a

severity level “F” on the sex-offender grid. See Minn. Sent. Guidelines IV (sex-offender

grid). We therefore affirm Noggle’s executed sentence of 27 months.

       As to the ten-year conditional-release term imposed, Noggle argues that (1) there

is insufficient record evidence of a previous conviction and (2) Minn. Stat. § 617.247,

subd. 9, is ambiguous because it fails to define the phrase “has previously been

convicted.”

       The statute under which Noggle was convicted states:

              Notwithstanding the statutory maximum sentence otherwise
              applicable to the offense or any provision of the sentencing
              guidelines, when a court commits a person to the custody of
              the commissioner of corrections for violating this section, the
              court shall provide that after the person has completed the
              sentence imposed, the commissioner shall place the person on
              conditional release for five years, minus the time the offender
              served on supervised release. If the person has previously
              been convicted of a violation of this section, section 609.342,
              609.343, 609.344, 609.345, 609.3541, 609.3453, or 617.246,
              or any similar statute of the United States, this state, or any
              state, the commissioner shall place the person on conditional



                                             5
              release for ten years, minus the time the offender served on
              supervised release.

Minn. Stat. § 617.247, subd. 9 (2006). The imposition of a conditional-release term

under this statute is mandatory. See State v. Humes, 581 N.W.2d 317, 319 (Minn. 1998)

(stating that “shall” in conditional-release statute required imposition of conditional-

release term). Once Noggle’s sentence was executed, the district court was obligated to

impose a conditional-release term.

       The Benton County district court file includes a sentencing order from Dodge

County dated December 16, 2008, which enters a conviction but stays sentencing on the

third-degree criminal-sexual-conduct charge from May 10, 2007. This sentencing order

was received by the Benton County district court in July 2009 as part of a packet of

evidence offered by the prosecutor in opposition to Noggle’s motion to dismiss for lack

of probable cause. Thus, at the time the conviction was entered on this charge, December

14, 2011, Noggle had a prior qualifying conviction, and the district court in this matter

had the Dodge County sentencing order in its file.

       But section 617.247, subdivision 9, increases the conditional-release term to ten

years if a person “has previously been convicted” of certain sex crimes. This section

does not include a definition of that phrase. In the statutory section dealing with

conditional release for criminal-sexual-conduct convictions, “previous sex offense

conviction” means that “the offender was convicted and sentenced for a sex offense

before the commission of the present offense.” Minn. Stat. § 609.3455, subd. 1(f) (2006)

(emphasis added). A “prior sex offense conviction” occurs when the offender is



                                              6
“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.” Id., subd. 1(g) (2006). The mandatory lifetime conditional-release

terms for criminal-sexual-conduct convictions specify that either a “previous” or a

“prior” conviction will result in a mandatory lifetime conditional-release term. Id., subd.

7(b) (2006). Noggle argues that because the legislature can clearly distinguish between

“previous” and “prior,” the phrase “has previously been convicted” either refers to a

conviction and sentence occurring before the present conviction or is ambiguous.

       A statute is ambiguous if it has more than one reasonable interpretation. State v.

Nelson, 842 N.W.2d 433, 436 (Minn. 2014). When a statute is ambiguous, this court may

employ the canons of statutory construction. Id. Minn. Stat. § 645.16 (2014) states:

                      The object of all interpretation and construction of
              laws is to ascertain and effectuate the intention of the
              legislature. Every law shall be construed, if possible, to give
              effect to all its provisions.

                      When the words of a law in their application to an
              existing situation are clear and free from all ambiguity, the
              letter of the law shall not be disregarded under the pretext of
              pursuing the spirit.

To ascertain legislative intent, a court may consider a former law or other laws on the

same or similar subjects. Id. The conditional-release requirement was added to section

617.247 in 2006, effective August 1, 2006, for crimes occurring on or after that date, and

was amended in 2013, providing no history. See 2006 Minn. Laws ch. 260, art. 1, § 39,

at 730; 2013 Minn. Laws ch. 96, § 7, at 746. The conditional-release statute for criminal-


                                             7
sexual-conduct convictions had defined “previous sex offense convictions” as a

conviction that occurred “before the commission of the present offense of conviction.”

Minn. Stat. § 609.109, subd. 5 (2004). We conclude that the wording of section 617.247,

subdivision 9 is ambiguous because it fails to define the phrase “has previously been

convicted.”

       When a criminal statute is ambiguous and the ambiguity cannot be resolved

through construction, courts apply the rule of lenity requiring that any ambiguity be

resolved in favor of the criminal defendant. Nelson, 842 N.W.2d at 443-44. Here, that

means that Noggle’s conditional-release term may only be enhanced to ten years if he has

a predicate conviction that occurred before commission of the present offense. Noggle’s

conviction in Dodge County occurred after commission of the present offense, and,

therefore, Noggle’s conditional-release term for this offense should be corrected to five

years. We therefore reverse the order imposing a ten-year conditional-release term and

remand to the district court for imposition of a five-year conditional-release term.

                                             II.

       Noggle argues that the district court abused its discretion by revoking his

probation and executing his sentence. We review the district court’s decision to revoke

an offender’s probation for an abuse of discretion. State v. Osborne, 732 N.W.2d 249,

253 (Minn. 2007). A district court must (1) identify the specific condition or conditions

violated; (2) determine whether the violation was intentional or inexcusable; and (3) find

that “the policies favoring probation no longer outweigh the need for confinement.” Id.

The court must base its decision on more than just “an accumulation of technical


                                             8
violations,” bearing in mind that the purpose of probation is rehabilitation; a court must

be convinced that an offender “cannot be counted on to avoid antisocial activity.” Id.

(quotation omitted). Noggle contends that the findings supporting the third factor are

insufficient.

       In finding that the need for confinement outweighs the policies favoring probation,

courts are directed to consider whether

                (i) confinement is necessary to protect the public from further
                criminal activity by the offender; or (ii) the offender is in
                need of correctional treatment which can most effectively be
                provided if he is confined; or (iii) it would unduly depreciate
                the seriousness of the violation if probation were not revoked.

State v. Modtland, 695 N.W.2d 602, 607 (Minn. 2005) (quotation omitted).

       The district court relied primarily on the third consideration: it would unduly

depreciate the seriousness of the violation if probation were not revoked. Noggle

presented evidence that there was an appropriate community-based treatment program

that he could attend and that program, Project Pathfinder, assessed Noggle and believed

the program could help him. But by the time of the second probation violation for this

charge, Noggle had been in treatment for over three years, and his probation violations

were becoming more serious. These violations included accessing the internet to view

pornographic photos of minors, purchasing a smart phone for internet access without his

probation agent’s knowledge, contacting people online about sexual encounters, and

requesting sexual photographs. He also had been discharged from one treatment program

because he was failing to make any further progress. The district court concluded that




                                              9
Noggle did not understand the “severity of [his] violations.” On this record, the district

court did not abuse its discretion by revoking Noggle’s probation.

       Affirmed in part, reversed in part, and remanded.




                                             10
