                         This opinion will be unpublished and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
                                    A15-1475

                               State of Minnesota, ex rel.,

                           Gregory Eugene Ward, petitioner,
                                     Appellant,

                                           vs.

                                     Tom Roy,
                             Commissioner of Corrections,
                                   Respondent.

                                  Filed June 20, 2016
                                       Affirmed
                                      Ross, Judge

                              Anoka County District Court
                               File No. 02-CV-15-2961

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant Public
Defender, Erik I. Withall, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, Kelly S. Kemp, Assistant Attorney General, St. Paul,
Minnesota (for respondent)


      Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith,

Tracy M., Judge.
                         UNPUBLISHED OPINION

ROSS, Judge

       This appeal tests the precedential value of an opinion of this court when the supreme

court at first granted a petition for further review of that opinion but then denied the

petition, dismissing the appeal without prejudice and allowing the losing party to raise the

same substantive legal issues in the district court under a different procedural mechanism.

Gregory Ward challenges the district court’s decision denying his petition for writ of

habeas corpus and upholding the department of correction’s recalculation of his

conditional-release period. Ward bases his appeal on a theory we rejected on the merits in

the state’s prior appeal after the district court granted Ward’s motion to correct his sentence

under Minnesota Rule of Criminal Procedure 27.03, subdivision 9. Because Ward’s habeas

petition rests on the same substantive theory that we rejected when we resolved the state’s

appeal of his rule 27.03 motion, the district court rejected the theory in his habeas action.

Ward argues that the district court should not have relied on this court’s opinion because

the supreme court’s dismissal of his petition for further review without prejudice and with

direction to file a habeas petition effectively vacated this court’s opinion. We reach a

different conclusion. And we affirm.

                                           FACTS

       Ward pleaded guilty to second-degree criminal sexual conduct in 1995, and the

district court sentenced him to a prison term but stayed the execution on probationary

conditions. In 2011 the district court revoked Ward’s probation and imposed a 34-month

sentence with a mandatory ten-year conditional-release period. Ward completed his


                                              2
imprisonment term and began supervised release. But he could not find approved housing

after release, so the state jailed him, revoked his supervised release, and returned him to

prison. Ward continued to be unable to find approved housing during his supervised-release

term, so he remained in prison. The state applied the time he spent in jail to credit his

conditional-release term, but it did not apply any prison time. The department of

corrections recalculated Ward’s conditional-release term to run to January 29, 2023, rather

than the previously scheduled termination date of March 15, 2022.

       Ward moved to correct his sentence under Minnesota Rule of Criminal Procedure

27.03, subdivision 9. The district court granted Ward’s motion, but this court reversed. See

State v. Ward, 847 N.W.2d 29, 30 (Minn. App. 2014) (Ward I), review granted and stayed

(Minn. June 17, 2014), stay vacated and review denied (Minn. Mar. 17, 2005). We

determined that Minnesota Statutes section 609.346, subdivision 5(a) (1994), was

ambiguous. 847 N.W.2d at 33. We considered particularly the provision that the prisoner’s

conditional-release period is reduced by “the time the person served on supervised release,”

and we held that the legislature intended for conditional release to be reduced only by the

time served on supervised release in the community, not in confinement. Id. at 34. Because

Ward’s supervised release was revoked and he returned to prison, we upheld the

department’s decision not to subtract the time Ward spent in prison from his conditional-

release term. Id.

       The supreme court granted Ward’s petition for further review, but it stayed the

proceedings until it decided another case brought under rule 27.03, subdivision 9, State v.

Schnagl, 859 N.W.2d 297 (Minn. 2015). The Schnagl court held that the proper procedural


                                             3
method to challenge the department’s recalculation of a conditional-release term when the

offender’s supervised-release term is revoked is not rule 27.03 but a petition for habeas

corpus. Id. at 302–03. After it issued the Schnagl decision, the supreme court denied

Ward’s petition for further review “without prejudice to the filing of a petition for a writ of

habeas corpus in the district court.”

       Ward filed a habeas corpus petition in district court. In it he argued that his

conditional-release term should be reduced by the full length of his supervised-release

term, including the time he was incarcerated and not in the community. The district court

denied the petition, holding that it was bound by this court’s decision in Ward I. Ward

appeals.

                                        DECISION

       On a writ of habeas corpus, generally the petitioner bears the burden of showing his

detention is illegal. Breeding v. Swenson, 240 Minn. 93, 97, 60 N.W.2d 4, 7 (1953). But

because the district court only applied and interpreted statutes to reach its decision, our

review is de novo. See Rud v. Fabian, 743 N.W.2d 295, 298 (Minn. App. 2007).

       We begin with some background on the executed-sentence scheme for all offenders

and the specific conditional-release requirement for certain sex offenders. An offender’s

“executed sentence” is divided in two. Minn. Stat. § 244.101, subd. 1 (1994). The offender

first serves a prison term equal to at least two-thirds of his executed sentence. Id. The final

third of his executed sentence is the maximum supervised-release term. Id. If the offender

commits no disciplinary offenses in prison and complies with his supervised-release

conditions, he generally will serve the entire supervised-release term in the community.


                                              4
Id., subd. 2 (1994); Minn. Stat. § 244.05 (1994). But if the offender violates conditions of

supervised release, the department of corrections may revoke the supervised release and

re-imprison him for the balance of the executed sentence. Minn. Stat. § 244.05, subd. 3.

       Ward’s challenge finds the intersection of these provisions and the statute

mandating a ten-year, conditional-release period for sex offenders. In 1994, before Ward’s

offense, that mandate provided that certain offenders, like Ward, “shall be placed on

conditional release for ten years, minus the time the person served on supervised release.”

Minn. Stat. § 609.346, subd. 5(a). Ward and the commissioner dispute whether this means

that the department should subtract the final third of the executed sentence or it should

subtract only that part that the offender served in the community. We examined and decided

this issue in the prior appeal, holding that the legislature intended the offender’s

conditional-release term to be reduced only by the supervised-release time served in the

community. See 847 N.W.2d at 34.

       Although the supreme court denied his petition for further review, Ward argues that

our decision in that case is not binding because the supreme court denied review without

prejudice and allowed him to reassert his claims in a habeas petition. He reasons that the

supreme court would not have invited him to present to the district court a statutory-

interpretation issue that the district court was not truly free to decide on the merits. The

commissioner counters, urging us to follow our decision in Ward I as binding precedent.

The commissioner adds arguments supporting the department’s recalculation of Ward’s

conditional-release period that we did not consider in the previous appeal because the

commissioner was not a party and unable to intervene. See Schnagl, 859 N.W.2d at 302.


                                             5
       In the first challenge to the department’s recalculation of Ward’s conditional-release

period, we held that the department appropriately reduced that period by only the number

of days that he spent on supervised release in the community. 847 N.W.2d at 34. We

deemed ambiguous Minnesota Statutes section 609.346, subdivision 5(a), because time

“served on supervised release” may be interpreted as either the full time remaining in the

executed sentence after the imprisonment term or only the amount of time between the end

of imprisonment and the point supervised release is revoked. Id. at 33. We held that both

supervised and conditional release were designed to provide continuous supervision of the

offender after release from prison, observing that the conditional-release period is a fixed

term and that this implies that the legislature intended sex offenders to be supervised for a

minimum length of time. Id. We also observed that, because Ward’s supervised release

period was “revoked,” he was not actually serving supervised release during his time in

prison. Id. at 33–34. And finally, we observed that the commissioner had authority to enact

rules governing the procedures for granting supervised release, which the commissioner

did, defining “supervised release” as occurring only “in the community under supervision.”

Id. at 34 (citing Minn. R. 2940.0100, subp. 31 (1995)). We ultimately held that the

legislature intended conditional release to allow for supervision of the offender for a fixed

period after the offender returns to the community. Id.

       The reasoning of our decision is sound, and so we would follow it even if it were

not binding. In any event, we are bound to follow it as a published decision of the court.

See State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010), review denied (Minn. Sept.




                                             6
21, 2010). Ward cites no authority challenging the opinion’s precedential quality in this

procedural setting.

       And we recently determined that supervised-release time must be served in the

community after release from prison to count against the conditional-release period, where

the offender was serving his term of imprisonment on a concurrent sentence for an

unrelated offense. State ex rel. Pollard v. Roy, 878 N.W.2d 341, 349–50 (Minn. App.

2016), pet. for review filed (Minn. May 11, 2016). Although Pollard interprets a later,

renumbered version of the statute, Minn. Stat. § 609.3455, subd. 6 (Supp. 2005), the

language remained the same. See 1993 Minn. Laws ch. 326, art. 9, § 9, at 2089; 1998 Minn.

Laws ch. 367, art. 6, § 6, at 731; 2005 Minn. Laws ch. 136, art. 2, § 21, at 931. The

legislature reworded the statute in 2013 specifically to address both the Pollard and Ward

I situations, confirming that conditional release begins “after the offender has been released

from prison” and that “[a]n offender, while on supervised release, is not entitled to credit

against the offender’s conditional release term for time served in confinement for a

violation of release.” 2013 Minn. Laws ch. 96, §§ 3, 5, at 744–45. The 2013 amendment

applies only to crimes committed on or after the statute’s effective date of August 1, 2013,

and it therefore is not determinative here. Id. We do not rely on Pollard because our

decisions are not binding until the deadline for granting review by the supreme court has

expired, State v. Collins, 580 N.W.2d 36, 43 (Minn. App. 1998), review denied (Minn.

July 16, 1998), and because of slight differentiations in the circumstances. Pollard

nevertheless illustrates our understanding of the intersection of supervised release and

conditional release.


                                              7
      We affirm the district court’s denial of Ward’s habeas corpus petition on the basis

that the commissioner did not err in interpreting section 609.346, subdivision 5(a). We

need not address Ward’s or the commissioner’s additional arguments.

      Affirmed.




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