                           This opinion will be unpublished and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
                                      A15-1897

                                     State of Minnesota,
                                        Respondent,

                                             vs.

                                Joseph Benjamin Klanderud,
                                        Appellant.

                                 Filed October 31, 2016
                    Affirmed in part, reversed in part, and remanded
                                     Stauber, Judge

                                Isanti County District Court
                                    File No. 30CR15237

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

Jeffrey R. Edblad, Isanti County Attorney, Deanna N. Natoli, Assistant County Attorney,
Cambridge, Minnesota (for respondent)

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

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

Judge.

                          UNPUBLISHED OPINION

STAUBER, Judge

         On appeal from his convictions of two counts of first-degree criminal sexual

conduct, appellant argues that the district court erred by (1) convicting and sentencing
him on both counts because they arose from the same behavioral incident and

(2) imposing a lifetime conditional-release term. We affirm in part because the two

offenses did not arise out of the same behavioral incident. But we reverse in part and

remand because the district court erred by imposing a lifetime conditional-release term.

                                           FACTS

       In April 2015, appellant Joseph Klanderud was charged with six counts of first-

degree criminal sexual conduct, three counts in violation of Minn. Stat. § 609.342, subd.

1(a) (2014), and three counts in violation of Minn. Stat. § 609.342, subd. 1(g) (2014). The

complaint alleged that at the time of the offenses, appellant was living with his sister and her

daughter, A.B.C. The complaint also alleged that between December 1, 2014, and March

25, 2015, appellant engaged in a sexual relationship with A.B.C., who was 11 or 12 years

old at that time.

       Appellant pleaded guilty to count I of the complaint, first-degree criminal sexual

conduct under Minn. Stat. § 609.342, subd. 1(a), and count IV of the complaint, first-degree

criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(g). Consistent with the terms

of the plea agreement, appellant’s sentence was Hernandized, and he was sentenced to 168

months on count I, and a concurrent term of 180 months on count IV. The district court also

imposed a lifetime conditional-release term. This appeal followed.




                                               2
                                     DECISION

                                             I.

       By statute, a criminal defendant “may be convicted of either the crime charged or

an included offense, but not both.” Minn. Stat. § 609.04, subd. 1 (2014). An “included

offense” means any of the following:

              (1)    A lesser degree of the same crime; or

              (2)    An attempt to commit the crime charged; or

              (3)    An attempt to commit a lesser degree of the same
                     crime; or

              (4)    A crime necessarily proved if the crime charged were
                     proved; or

              (5)    A petty misdemeanor necessarily proved if the
                     misdemeanor charge were proved.

Id., subd. 1(1)-(5). Section 609.04 also forbids “multiple convictions under different

sections of a criminal statute for acts committed during a single behavioral incident.”

State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985) (stating that where two convictions

arising out of a single behavioral incident are formally adjudicated, section 609.04 should

be applied to vacate one of the formally adjudicated convictions). And unless a statutory

exception applies, “if a person’s conduct constitutes more than one offense under the

laws of this state, the person may be punished for only one of the offenses.” Minn. Stat.

§ 609.035, subd. 1 (2014). The purposes of Minn. Stat. § 609.04 (2014) and Minn. Stat.

§ 609.035 (2014) are to protect the defendant from multiple sentences and multiple

prosecutions and to ensure that “punishment will be commensurate with the criminality



                                             3
of defendant’s conduct.” State v. Williams, 608 N.W.2d 837, 841 (Minn. 2000)

(quotation omitted).

       Appellant argues that the district court erred by convicting and sentencing him on

both counts of first-degree criminal sexual conduct because the multiple convictions

violate Minn. Stat. § 609.04, subd. 1, and the multiple sentences violate Minn. Stat.

§ 609.35. This argument turns on whether the two offenses involved the same behavioral

incident.1 Whether multiple offenses form a single behavioral act is a question of fact,

which we review for clear error. State v. Grampre, 766 N.W.2d 347, 353 (Minn. App.

2009), review denied (Minn. Aug. 26, 2009). “But where the facts are established, the

determination is a question of law subject to de novo review.” Id. at 354 (quotation

omitted). The state has the burden of proving by a preponderance of the evidence that the

actions underlying multiple offenses did not occur as part of a single behavioral incident

or course of conduct. State v. McCauley, 820 N.W.2d 577, 591 (Minn. App. 2012),

review denied (Minn. Oct. 24, 2012).

       “Whether multiple offenses arose out of a single behavior[al] incident depends on

the facts and circumstances of the particular case.” State v. Bookwalter, 541 N.W.2d 290,

294 (Minn. 1995). In criminal-sexual-conduct cases, the criteria for determining whether

offenses arose out of a single behavioral incident include: (1) whether the conduct

involved was motivated by a desire to obtain a single criminal objective and (2) whether



1
  “Legal authorities use the terms ‘single course of conduct’ and ‘single behavioral
incident’ interchangeably.” State v. Mitchell, 881 N.W.2d 558, 563 n.2 (Minn. App.
2016), review denied (Minn. Aug. 23, 2016).

                                             4
the offenses occurred at substantially the same time and place, arose in a continuous and

uninterrupted course of conduct, and manifested an indivisible state of mind. State v.

Secrest, 437 N.W.2d 683, 685 (Minn. App. 1989), review denied (Minn. May 24, 1989).

       In State v. McLemore, 351 N.W.2d 927, 928 (Minn. 1984), the supreme court

concluded that three acts of sexual contact with a child that occurred over the course of a

weekend were not part of a single behavioral incident despite the unity of place and the

relatively short time period. Likewise, the supreme court concluded that two incidents of

sexual contact with the same victim occurring five hours apart but in the same place,

were not a part of the same behavioral incident, reasoning that “neither act bore any

essential relationship to the other.” State v. Stevenson, 286 N.W.2d 719, 720 (Minn.

1979). The supreme court commented, “[T]he underlying purpose of [Minn. Stat.]

§ 609.035 is to prevent punishment which is disproportionate to the culpability of the

defendant. Here, we are satisfied that multiple punishment of defendant is not barred by

the statute and is consistent with the purpose of the statute.” Id. Thus, as the supreme

court has concluded in previous cases, although there may be unity of time and place

between multiple offenses, they do not necessarily arise out of the same behavioral

incident. See Bookwalter, 541 N.W.2d at 295 (holding that sexual assault and attempted

murder were not part of a single behavioral incident where they occurred in or near the

victim’s vehicle at two distinct times and places, and that a single common criminal

objective failed to underlie both offenses); see also Stevenson, 286 N.W.2d at 720; State

v. Krampotich, 282 Minn. 182, 187-88, 163 N.W.2d 772, 776 (1968) (holding that

several crimes were not part of a single behavioral incident where, although all the crimes


                                             5
occurred during the same evening, the contact period extended two and one-half hours,

and, although all the crimes occurred in or by the victim’s automobile, the automobile

itself was moved from place to place); but see State v. Herberg, 324 N.W.2d 346, 349

(Minn. 1982) (holding that two incidents of first-degree criminal sexual conduct

committed against the same victim, separated by both time and place, arose out of a

single behavioral incident because the defendant’s motivation in both incidents was “to

satisfy his perverse sexual needs”).

       Here, appellant pleaded guilty to count I, first-degree criminal sexual conduct in

violation of Minn. Stat. § 609.342, subd. 1(a), which prohibits sexual penetration or

contact with another person if the complainant is under 13 years of age and the actor is

more than 36 months older than the complainant. Appellant also pleaded guilty to count

IV, first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g),

which prohibits sexual penetration with another person where the actor has a significant

relationship with the complainant and the complainant was under 16 years of age at the

time of the penetration. At appellant’s plea hearing, the following exchange occurred

between appellant and the prosecutor to establish the factual basis for these offenses:

              Prosecutor: Did you have sexual intercourse with [A.B.C.]?
              Appellant: Yes.
              Prosecutor: That consisted of you putting your penis inside her
              vagina; is that correct?
              Appellant: Yes.
              Prosecutor: Did that happen on more than one occasion?
              Appellant: Yes.
              Prosecutor: I believe you indicated it happened . . .
              approximately six times; is that accurate?
              Appellant: (No response).



                                              6
It is undisputed that appellant was convicted and sentenced for both offenses.

       Appellant argues that he cannot be convicted of both offenses because the “two

counts to which he pleaded guilty both alleged identical timeframes involving identical

sexual conduct with a single victim.” We acknowledge that both counts for which

appellant pleaded guilty alleged that the offenses occurred between December 1, 2014, and

March 25, 2015. But appellant’s admission that the sexual intercourse with A.B.C. occurred

“on more than one occasion” is sufficient to establish that appellant’s two convictions are

not based upon a single behavioral incident. The word “occasion,” in its plain meaning and

use, indicates separate incidents. See Random House Webster’s Unabridged Dictionary

1339 (2d ed. 1998) (defining “occasion” as “as marked by certain circumstances or

occurrences”). Thus, appellant’s admission that the sexual intercourse occurred on “more

than one occasion” indicates two distinct acts that are separated in time. Moreover,

appellant’s admission that the sexual intercourse happened “on more than one occasion”

indicates the accomplishment of multiple criminal-sexual-conduct offenses because they did

not arise out of a continuous and uninterrupted course of events. See Secrest, 437 N.W.2d

at 685 (stating that an offense consists of a single course of conduct if the conduct involved

is “motived by a desire to obtain a single criminal objective” and the offenses occur at

“substantially the same time and place, arise in a continuous and uninterrupted course of

conduct and manifest an indivisible state of mind”). And further support for the conclusion

that the offenses are not part of the same behavioral incident is demonstrated by the fact that

each offense can be explained without necessary reference to the other. See State v.

Marchbanks, 632 N.W.2d 725, 731 (Minn. App. 2001) (stating that offenses are not part of


                                               7
the same course of conduct if each offense can be explained without necessary reference

to the other). Although a more specific factual basis that developed the specific instances

of sexual contact would have been helpful, the existing factual basis is sufficiently

specific to establish that the offenses did not arise from the same behavioral incident.

Therefore, the district court did not err by convicting and sentencing appellant for both

counts of first-degree criminal sexual conduct.

                                             II.

       Appellant challenges the district court’s imposition of a lifetime conditional-

release term under Minn. Stat. § 609.3455 (2014).2 Minnesota law provides that when

the district court commits an offender to the custody of the commissioner of corrections

for a violation of first-degree criminal sexual conduct, 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. Conversely, an

offender who has a “previous or prior sex offense conviction” is generally subject to a

mandatory lifetime conditional-release term. Minn. Stat. § 609.3455, subd. 7. 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,



2
  The state contends that because appellant did not raise the lifetime conditional-release
issue in district court, he has waived the issue. Generally, this court will not consider
matters not argued and considered in the district court. Roby v. State, 547 N.W.2d 354,
357 (Minn. 1996). But a defendant’s right to appeal a sentence may not be waived. See
State v. Williams, 664 N.W.2d 432, 434 (Minn. App. 2003) (waiver of a defendant’s right
to appeal a sentence is invalid), review denied (Minn. Sept. 24, 2003). Moreover, we
may address any issue as justice requires. Minn. R. Civ. App. 103.04.

                                              8
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). “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).

       Appellant argues that the district court “simultaneously” convicted him of the two

criminal-sexual-conduct offenses rather than one conviction occurring immediately after

the other. Appellant argues that under these circumstances, he was never convicted of

any prior or previous sexual offense and, therefore, he should only be sentenced to the

ten-year conditional-release period.

       The issue raised by appellant involves the interpretation of Minn. Stat. § 609.3455,

which is an issue of law that is subject to de novo review. See Christianson v. Henke,

831 N.W.2d 532, 535 (Minn. 2013) (stating that statutory interpretation is a question of

law that is subject to de novo review). The goal of statutory interpretation is to ascertain

the legislature’s intent. State v. Rick, 835 N.W.2d 478, 482 (Minn. 2013). Courts will

interpret a statute according to its plain meaning without considering the canons of

statutory construction “[i]f the [l]egislature’s intent is clear from the statute’s plain and

unambiguous language.” Id. “But, if a statute is susceptible to more than one reasonable

interpretation, then the statute is ambiguous and [courts] may consider the canons of

statutory construction to ascertain its meaning.” Id.

       The supreme court recently discussed section 609.3455 in State v. Nodes, 863

N.W.2d 77 (Minn. 2015). Similar to this case, Nodes involved an offender who had


                                               9
never before been convicted of a sex offense and who pleaded guilty to two sex offenses

at the same hearing. Id. at 78-79. During sentencing, the district court 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 609.432,
              subd. 1(a) and subd. 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,
              subd. 1(a) and subd. 2(a) on or about March 19, 2013.

Id. at 79. The supreme court concluded that “[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. In so concluding, the supreme court emphasized that “[a]s 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. The court held that at the time the

judge accepted the guilty plea on count one, the defendant was “convicted” and thus,

even though the passage of time between the 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.

       Appellant argues that Nodes does not control here because that case did not

“address the question of how two convictions should be treated when they were entered

simultaneously, rather than sequentially.” We agree. After the factual basis for

appellant’s plea was stated on the record, the district court made the following finding:

“[The] Court does find you’ve knowingly and voluntarily waived your rights. There is a

sufficient factual basis for your plea to Count 1 and Court 4. Pleas are accepted.


                                             10
Judgment of guilt will be entered.” Unlike Nodes, appellant’s convictions were not

entered sequentially. Instead, the district court accepted both pleas simultaneously.

       The state argues that the district court’s purported acceptance of appellant’s guilty

pleas at the plea hearing was actually an “off-the-cuff” remark and that appellant’s pleas

were not actually accepted until the sentencing hearing. In making this argument, the

state emphasizes that in Nodes, the “formal acceptance of the plea did not occur at the

plea hearing but, instead, at sentencing.” But the Minnesota Rules of Criminal Procedure

provide that a district court “may postpone its acceptance or rejection [of a guilty plea]

until it has received the results of a pre-sentence investigation.” Minn. R. Crim. P. 15.04,

subd 3 (emphasis added). Because the pre-sentence investigation results would not be

received until after the plea hearing and before the sentencing hearing, it is not

uncommon for a district court to wait until sentencing to accept a guilty plea.

Consequently, the fact that the district court in Nodes accepted the defendant’s guilty plea

at the sentencing hearing does not support the state’s position that the district court

accepted appellant’s guilty pleas at the sentencing hearing. Instead, the record

unambiguously shows that at the plea hearing, appellant’s pleas were accepted and

judgment of guilt was entered. The record also clearly shows that the pleas and

adjudications were accepted simultaneously. Therefore, appellant had no previous or

prior convictions at the time he was sentenced.

       Because appellant had no previous or prior convictions at the time he was

sentenced, the district court erred by imposing a lifetime conditional release on appellant.




                                             11
Accordingly, we reverse and remand to the district court for imposition of a ten-year

conditional-release period on each offense.

      Affirmed in part, reversed in part, and remanded.




                                              12
