                           This opinion will be unpublished and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
                                      A16-0923

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                Christopher Robert Politano,
                                        Appellant.

                                 Filed November 7, 2016
                                 Reversed and remanded
                                      Hooten, Judge

                              Hennepin County District Court
                                File No. 27-CR-09-47894

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, Richard Schmitz, St. Paul,
Minnesota (for appellant)

         Considered and decided by Bratvold, Presiding Judge; Peterson, Judge; and Hooten,

Judge.
                         UNPUBLISHED OPINION

HOOTEN, Judge

       In this appeal of the denial of his motion to correct an unlawful sentence, appellant

argues that the district court erred by treating his motion as an untimely petition for

postconviction relief barred by the statute of limitations. We reverse and remand.

                                           FACTS

       On May 24, 2011, Appellant Christopher Robert Politano pleaded guilty to one

count of failing to register as a predatory offender. Although Politano admitted to the

elements of the offense, he did not admit that he had been assigned a community

notification risk level of III at the time of the offense.        After Politano admitted to

committing the offense, the district court inquired whether a conditional-release term was

required.

       After a short recess for the attorneys to discuss their responses to the district court’s

inquiry, the prosecutor advised the district court that a ten-year conditional-release term

was required. The district court, over Politano’s objection, imposed an additional ten-year

conditional-release term, but offered Politano an opportunity to withdraw his guilty plea if

he was unwilling to accept the conditional-release term. Politano’s attorney stated that if

Politano wished to withdraw his plea, he would file a motion at a later date. Politano never

filed a motion to withdraw his plea.

       On May 9, 2012, Politano filed a petition for postconviction relief, arguing that the

conditional-release term rendered his plea unknowing and involuntary. The district court




                                               2
denied the petition, and this court affirmed. Politano v. State, No. A12-1862 (Minn. App.

May 20, 2013).

       On January 21, 2016, following the Minnesota Supreme Court’s decision in State v.

Her, 862 N.W.2d 692 (Minn. 2015), Politano filed a motion for sentence correction under

Minn. R. Crim. P. 27.03, subd. 9. In his motion, he argued that the imposition of a ten-

year conditional-release term under Minn. Stat. § 243.166, subd. 5a (2008) was dependent

upon whether he was assigned a risk level III at the time of his offense and that, similar to

the facts in Her, his sentence violated his Sixth Amendment right to have a jury decide this

factual issue prior to sentencing.

       The district court determined that Politano’s motion was properly reviewed as a

petition for postconviction relief. After determining that Her did not create a retroactive

rule which would qualify as an exception to the two-year statute of limitations for filing

petitions for postconviction relief, the district court denied Politano’s petition as time-

barred. In this appeal of that decision, Politano only challenges the legality of his

conditional-release term, not the validity of his plea or conviction.

                                      DECISION

       The U.S. Supreme Court has stated that the Sixth Amendment 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 Minnesota Sentencing Guidelines establish the maximum sentence a district court may


                                              3
impose without additional fact-finding by a jury or an admission by the defendant. See

State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).

       When a risk level III predatory offender is convicted of failure to register, a ten-year

conditional-release term is required by statute. Minn. Stat. § 243.166, subd. 5a (2008).

This risk assessment is performed by a committee under the authority of the commissioner

of corrections, not the convicting court. Minn. Stat. § 244.052, subd. 3a (2008). The

Minnesota Supreme Court recently determined that whether an individual was a risk level

III predatory offender at the time of his conviction did not fall within the prior conviction

exception to the Blakely doctrine. Her, 862 N.W.2d at 694. Therefore, a district court may

impose a ten-year conditional-release term based on a defendant’s status as a risk level III

offender only if the status has been either admitted by the defendant or found by a jury

beyond a reasonable doubt. Id. at 693.

                                              I.

       As a threshold issue, Politano argues that his motion was properly filed as a rule

27.03 motion. The district court determined that Politano’s motion was not a rule 27.03

motion, but instead a petition for postconviction relief. This argument requires us to

interpret rule 27.03. Appellate courts “review the interpretation of procedural rules de

novo.” State v. Martinez-Mendoza, 804 N.W.2d 1, 6 (Minn. 2011).

       This court addressed this issue in great detail in Reynolds v. State. 874 N.W.2d 257

(Minn. App. 2016), review granted, (Minn. Mar. 29, 2016). In Reynolds, the district court

treated Reynolds’ rule 27.03 motion as a petition for postconviction relief and concluded

that his petition was time-barred because it was “filed after the deadline for petitions


                                              4
seeking postconviction relief.” Id. at 260. This court reversed, concluding that Reynolds’

challenge could be filed under rule 27.03, and therefore “the two-year statutory time limit

[did] not apply.” Id. at 259–60. Our conclusion in Reynolds was predicated on a

determination that Reynolds was challenging only the validity of a term of his sentence,

not his underlying conviction or plea. Id. at 261.

       There are no material differences between Reynolds’ and Politano’s challenges.

Unlike Politano’s 2012 petition for postconviction relief, his motion for sentence correction

does not challenge the validity of his plea. Instead, like Reynolds, he only challenges the

imposition of the ten-year conditional-release period. Therefore, Politano’s motion was

properly filed under rule 27.03, and the two-year statute of limitations does not apply.

                                             II.

       The state argues that Her does not apply retroactively to collateral sentence review.

The district court concluded that Politano’s petition was a Blakely petition and that Blakely

petitions are not retroactive to collateral sentence challenges. “[W]e review de novo a

postconviction court’s legal conclusions, such as whether a decision applies retroactively.”

Odegard v. State, 767 N.W.2d 472, 474 (Minn. App. 2009).

       At the outset, we note that the supreme court in Her determined that imposing a

ten-year conditional-release period without a jury finding or Her admitting that he was a

risk level III predatory offender at the time of his offense, violated Her’s Sixth Amendment

rights. 862 N.W.2d at 696–97. Thus, if Her applies retroactively to Politano’s sentence

challenge, it directly affects the analysis under rule 27.03, subd. 9, which allows a district




                                              5
court to “at any time correct a sentence not authorized by law.” The district court concluded

Her does not apply retroactively to Politano’s challenge. We disagree.

       In denying Politano’s motion, the district court stated:

                      This court also looks at whether Her established a
              retroactive rule. The Minnesota Supreme Court has held that
              Blakely, the case upon which Her stands, is not retroactive
              under the collateral review of postconviction relief. State v.
              Houston, 702 N.W.2d 268, 274 (Minn. 2005). Holding the
              state to the highest burden of proof for aggravating sentencing
              elements does not shift the bedrock of the constitutional
              guarantees in regards to criminal procedure. Id. at 273. This
              exception to the time limits of filing a motion for
              postconviction relief does not apply.
                      [Politano]’s motion is properly treated as a motion for
              postconviction relief. As such, the two-year time limitation
              applies. Her does not establish retroactively applicable change
              in constitutional criminal procedure and no exception applies
              to this statute of limitations. [Politano] filed his motion beyond
              the time allowed and this court cannot consider it.

       The district court appears to have used a three-step reasoning process in determining

that Her does not apply to cases on collateral review. First, the district court relied on State

v. Houston for the proposition that Blakely was not a watershed rule of constitutional

procedure and therefore did not apply retroactively for purposes of collateral attacks on

final sentences. See Houston, 702 N.W.2d at 273–74. Second, the district court stated that

Blakely was the “case upon which Her stands.” Finally, the district court concluded that

because Blakely is not available for collateral attacks on final sentences, and Her stands on

Blakely, Her is not available for collateral attacks on final sentences.

       This reasoning appears to have a fatal flaw caused by the district court reading

Houston too broadly. Houston addressed one narrow issue, “[w]hether Blakely applies



                                               6
retroactively to convictions final at the time Blakely was decided.” 702 N.W.2d at 270

(emphasis added). Blakely was decided in 2004. Politano pleaded guilty in 2011. Because

Blakely was in effect at the time Politano made his plea, the retroactive effect of Blakely,

as resolved in Houston, is not an issue in this case.

       Therefore, for the district court’s conclusion to be correct, Her must not be

retroactive when considered alone and outside of its relationship to Blakely. Generally, a

new constitutional rule is not available to defendants whose convictions are final at the

time the rule is announced. Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075

(1989). However, rules that are “a predictable extension of a pre-existing doctrine” are

“[o]ld rules of . . . constitutional criminal procedure [that] apply both on direct and

collateral review.” Campos v. State, 816 N.W.2d 480, 488 (Minn. 2012) (quotations

omitted). For the rule to be applicable on collateral review, the extension of precedent

must be so logical that “reasonable jurists hearing petitioner’s claim at the time his

conviction became final would have felt compelled by existing precedent to rule in his

favor.” Houston, 702 N.W.2d at 271 (quotations omitted).

       The principle that a defendant must admit, or a jury must decide, all facts other than

a prior conviction that are necessary to impose a conditional-release term is based on more

than 15 years of collective U.S. Supreme Court and Minnesota Supreme Court precedent.1


1
  See Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362–63 (“Other 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,
542 U.S. at 303, 124 S. Ct. at 2537 (“[T]he statutory maximum for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.”) (quotation omitted); State v. Grossman, 636

                                              7
The issue in Her was narrow: “whether this type of fact, a committee’s assignment of a

risk level to an offender, is the Sixth–Amendment equivalent of a prior conviction.” Her,

862 N.W.2d at 698. The Minnesota Supreme Court in Her applied Blakely to Her’s rule

27.03 collateral attack on his plea, and vacated his conditional-release term, presenting its

decision as an application of the collective case law following Apprendi. Id. at 697

(“Applying our approach from Grossman, . . . [and] consistent with Blakely, Jones, and

Grossman, we conclude that the 10-year period of conditional-release imposed in this case

exceeded the statutory maximum for Her’s offense of failing to register as a predatory

offender.”).

       As made clear by the supreme court’s reliance on prior decisions, Her did not break

new ground, but rather clarifies the boundaries of Apprendi’s prior conviction exception.

Therefore, because Her is not a new rule of constitutional criminal procedure, the decision

applies retroactively to Politano’s collateral sentence challenge.

       Having concluded that Politano’s motion was properly filed under rule 27.03 and

that Her applies retroactively to Politano’s challenge to the ten-year conditional-release

term, we reverse that portion of his sentence and remand to the district court for further

proceedings consistent with this decision.

       Reversed and remanded.



N.W.2d 545, 551 (Minn. 2001) (determining Apprendi required that type of findings
needed to impose enhanced punishment under Minnesota’s statute increased sentences for
certain sex offenders be found by jury); State v. Jones, 659 N.W.2d 748, 753–54 (Minn.
2003) (determining that imposition of conditional-release term constituted sentence for
purposes of Apprendi and Blakely).

                                              8
