                            This opinion will be unpublished and
                            may not be cited except as provided by
                            Minn. Stat. § 480A.08, subd. 3 (2016).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A15-2037

                                      State of Minnesota,
                                         Respondent,

                                              vs.

                                   Jack Warren Nomeland,
                                         Appellant.

                                  Filed February 13, 2017
                                  Reversed and remanded
                                        Reyes, Judge

                              Pennington County District Court
                                  File No. 57-CR-14-459

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

Al Rogalla, Pennington County Attorney, Thief River Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and T. Smith,

Judge.

                           UNPUBLISHED OPINION

REYES, Judge

         Appellant challenges the district court’s imposition of a ten-year conditional-release

term following his conviction for failure to register as a predatory offender. Because the
jury did not find, and appellant did not admit, that appellant was a risk-level-III offender

at the time of the offense, we reverse and remand.

                                          FACTS

       On June 17, 2014, the state charged appellant Jack Nomeland with failure to register

as a predatory offender in violation of Minn. Stat. § 243.166, subd. 5(a) (2014). At the jury

trial, appellant stipulated that he is an individual required to register his address, motor

vehicle, and place of employment, and that his obligation to register had not lapsed at the

time of the offense. Appellant denied having violated the statute.

       The district court received into evidence, as court exhibits, documents referencing

appellant’s status as a predatory offender with a risk level of III. However, the jury

received these exhibits with the references to appellant’s status as a predatory offender and

risk level redacted. Further, appellant did not admit that he was assigned a risk level of III

or waive his right to have the jury make that finding.

       The jury found appellant guilty of failure to register but did not make a finding about

appellant’s risk level. The presentence investigation report (PSI) recommended a prison

sentence of 16 months with a ten-year conditional-release term. Subsequently, the district

court sentenced appellant to 14 months in prison and imposed a ten-year conditional-

release term. This appeal follows.1




1
  The state filed a letter informing this court that it would not be submitting a responsive
brief. Therefore, we will decide this appeal on the merits without the state’s brief pursuant
to Minn. R. Civ. App. P. 142.03.

                                              2
                                       DECISION

         Appellant argues that his Sixth Amendment right to a trial by jury was violated when

the district court imposed a ten-year conditional-release term without the jury finding, or

appellant admitting, that at the time of the offense, he was a risk-level-III offender. We

agree.

         As a preliminary matter, appellant did not raise this issue before the district court.

Generally, this court will not decide issues not raised before the district court. State v.

Busse, 644 N.W.2d 79, 89 (Minn. 2002). However, we will address appellant’s argument

because Minn. R. Crim. P. 27.03, subd. 9, allows a court to “correct a sentence not

authorized by law.”       See State v. Maurstad, 733 N.W.2d 141, 148 (Minn. 2007);

Washington v. State, 845 N.W.2d 205, 210 (Minn. App. 2014) (noting that rule 27.03

allows court to sua sponte correct sentence). “The imposition of a 10-year conditional-

release term without a jury’s finding or a defendant’s admission that he was a risk-level-

III offender at the time of the offense is a sentence that is not authorized by law.” Reynolds

v. State, ___ N.W.2d ___, ___, 2016 WL 7118915, at *2 (Minn. Dec. 7, 2016).

         We review an alleged violation of constitutional rights de novo. State v. Bobo, 770

N.W.2d 129, 139 (Minn. 2009). In Apprendi v. New Jersey, the United States Supreme

Court held 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.” 530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63

(2000). In Minnesota, the presumptive sentence prescribed by the sentencing guidelines is

“the maximum sentence a judge may impose solely on the basis of the facts reflected in the


                                               3
jury verdict or admitted by the defendant.” State v. Shattuck, 704 N.W.2d 131, 141 (Minn.

2005) (quoting Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004)).

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

              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 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.

In State v. Her, the supreme court held that whether an individual is a risk-level-III offender

at the time of the offense does not fall within the prior-conviction exception of Apprendi.

862 N.W.2d 692, 694 (Minn. 2015). The supreme court also concluded that the ten-year

conditional-release period imposed exceeded the presumptive sentence prescribed by the

sentencing guidelines because the jury did not determine whether Her was a risk-level-III

offender at the time of his offense. Id. at 694, 697, 700. Thus, appellant must have admitted

or the jury must have found that appellant was assigned to risk level III at the time of the

offense in order for the district court to impose a ten-year conditional-release period.

       Here, at sentencing, the state requested that the court “follow the recommendations

outlined in the [PSI].” However, appellant neither admitted that he was a risk-level-III

offender at the time of the charged offense nor did he waive his right to have the jury make

that finding. Additionally, the jury did not make any finding with regard to appellant’s risk

level, and the jury received evidence with appellant’s risk level redacted. Thus, the




                                              4
imposition of the ten-year conditional-release term violated appellant’s Sixth Amendment

right to a trial by jury and must be vacated.

       The remaining issue is whether a resentencing hearing, at which a jury would decide

whether facts exist to impose the ten-year conditional-release term, should take place on

remand. Appellant argues that remand for a resentencing hearing is prohibited and relies

on State v. Jones, 659 N.W.2d 748 (Minn. 2003), and Hankerson v. State, 723 N.W.2d 232

(Minn. 2006), as support for his argument. We find Hankerson persuasive.

       In Hankerson, the supreme court rejected Hankerson’s argument that a resentencing

hearing would violate the Double Jeopardy Clause because Hankerson failed to establish

that a resentencing hearing would be a second prosecution when the district court found

aggravating factors at the initial sentencing hearing. 723 N.W.2d at 239–40. In reaching

its conclusion, the supreme court noted that double jeopardy might prevent retrial on the

aggravating factors that would enhance a sentence beyond the statutory maximum on

resentencing: (1) “if the state in the first trial had not sought an aggravated sentence”; (2)

“if the district court had ‘acquitted’ [the defendant] of the aggravating factors”; or (3) “if

the state had presented insufficient evidence to support the district court’s adoption of the

aggravating factors in the first trial.” Id. at 238; see also State v. Thompson, 720 N.W.2d

820, 827, 831 n.4 (Minn. 2006) (using “enhancement” and “aggravating” to describe

factors that serve as basis for sentencing departure).

       As appellant argues, scenarios (1) and (3) exist here, and a resentencing hearing on

remand would violate the prohibition on double jeopardy. The state did not seek an

aggravated or enhanced sentence at trial. Further, the state presented insufficient evidence


                                                5
on appellant’s risk level to support imposition of the ten-year conditional-release term

because the jury received evidence with this information redacted. Therefore, we reverse

and remand for the district court to vacate the ten-year conditional-release term.

       Reversed and remanded.




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