                        This opinion will be unpublished and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
                                   A15-1823

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                                Brian William Meger,
                                    Respondent.

                                 Filed July 25, 2016
                                      Affirmed
                                     Kirk, Judge

                             Scott County District Court
                              File No. 70-CR-05-27344

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Kathryn J.
Lockwood, Assistant Public Defenders, St. Paul, Minnesota (for respondent)

      Considered and decided by Larkin, Presiding Judge; Kirk, Judge; and Toussaint,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

KIRK, Judge

       Appellant State of Minnesota argues that the district court erred in: (1) applying

State v. Her retroactively to respondent Brian William Meger’s sentence; (2) construing

Meger’s request as a motion to correct an unauthorized sentence and not as a petition for

postconviction relief; and (3) not allowing Meger to withdraw his guilty plea. Because the

district court properly applied Her and modified Meger’s sentence to the maximum

contemplated in the plea agreement, we affirm.

                                         FACTS

       Nine years after Meger was sentenced for failing to register as a predatory offender,

the postconviction court vacated a ten-year conditional-release term under Minn. Stat.

§ 243.166, subd. 5a (2013), which was imposed after Meger was convicted for violating a

predatory-offender-registration requirement. The postconviction court modified Meger’s

sentence to the maximum sentence allowed at the time he entered his guilty plea, which

was 27 months.

       Meger was required to register as a predatory offender because of his 1995

conviction for attempted first-degree criminal sexual conduct. Minn. Stat. § 243.166,

subds. 1b(a)(1)(iii), 3(b) (2005). In 2005, the state charged Meger with failing to register

as a sex offender when he failed to inform law enforcement of his new address after

moving. At the September 7, 2006 plea hearing, Meger accepted a plea deal where, in

exchange for pleading guilty to the offense, he would receive a downward-departure

sentence of 20 months.


                                             2
       In January 2007, the district court added the ten-year conditional-release term after

receiving a letter from the Minnesota Department of Corrections inquiring whether it

intended to impose the term to Meger’s sentence under Minn. Stat. § 243.166, subd. 5a

(2006). Meger served his 20-month sentence and remained in prison for approximately six

additional years serving conditional release because the state could not find appropriate

housing for him.

       In June 2014, Meger moved to correct an unauthorized sentence under Minn. R.

Crim. P. 27.03, subd. 9, arguing that the conditional-release term should be vacated because

a jury had not found that he was a risk-level III offender at the time he failed to register.

On January 22, 2015, the postconviction court held a hearing on Meger’s motion, but later

denied it under this court’s opinion in State v. Her, which held that a defender’s risk-level

at the time of a registration violation is not constitutionally required to be found by a jury.

843 N.W.2d 590, 596 (Minn. App. 2014), rev’d, 862 N.W.2d 692 (Minn. 2015).

       Two weeks after the postconviction court denied Meger’s motion, the Minnesota

Supreme Court reversed this court’s ruling in Her, holding that an offender’s risk-level

status implicated the offender’s Sixth Amendment jury-trial right. 862 N.W.2d 692 (Minn.

2015). Meger immediately moved for reconsideration under the supreme court’s ruling in

Her, and the postconviction court granted his motion and held a hearing.

       The postconviction court issued an order vacating Meger’s ten-year conditional-

release term, concluding that it was unauthorized under Her because Meger’s risk-level

status was solely based on “unestablished, extra-judicial facts” contained in a letter from

the Minnesota Department of Corrections after he had been sentenced. It elected not to


                                              3
impanel a sentencing jury given the “far from ideal” procedural practices in Meger’s case,

the substantial time already served by Meger as he waited out his conditional-release term

in prison, and the possibility of double jeopardy attaching. Citing State v. Jones, the

postconviction court vacated Meger’s sentence and modified it to 20 months, the maximum

sentence contemplated at the time of the plea agreement. 659 N.W.2d 748 (Minn. 2003).

As Meger had already served the maximum, bargained-for sentence, the postconviction

court ordered his immediate release from custody.

       The state appeals.

                                     DECISION

I.     The postconviction court did not err in retroactively applying State v. Her to
       this case.

       We review a district court’s decision on a motion to correct a sentence not

authorized by law under Minn. R. Crim. P. 27.03, subd. 9, for an abuse of discretion.

Anderson v. State, 794 N.W.2d 137, 139 (Minn. App. 2011), review denied (Minn. Apr.

27, 2011). We review the district court’s legal conclusions de novo and its factual findings

for clear error. Townsend v. State, 834 N.W.2d 736, 738 (Minn. 2013) (citation omitted).

The determination whether a decision applies retroactively or nonretroactively is a legal

question that we review de novo. Odegard v. State, 767 N.W.2d 472, 474 (Minn. 2009)

(“[W]e review de novo a postconviction court’s legal conclusions, such as whether a

decision applies retroactively.”).

       Relying on the U.S. Supreme Court ruling in Teague v. Lane, 489 U.S. 288, 109 S.

Ct. 1060 (1989), the state asserts that Her announced a new watershed rule and that it



                                             4
should not be applied retroactively to cases on collateral review such as Meger’s because

his availability of appeal was exhausted in 2007 when his conviction became final, eight

years before Her was released.

       Generally, a defendant may not avail himself of a new constitutional rule if his

conviction is already final at the time the rule is announced. Teague, 489 U.S. at 310, 109

S. Ct. at 1075. “[A] case announces a new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became final.” Id. at 301, 109 S. Ct. at 1070.

But “[w]hen a decision merely interprets and clarifies an existing rule and does not

announce an altogether new rule of law, the court’s interpretation is merely a restatement

of existing law.” Danforth v. State, 761 N.W.2d 493, 501 (Minn. 2009) (quotation

omitted). “Old rules of federal constitutional criminal procedure apply both on direct and

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

omitted). And the supreme court’s rulings are generally given retroactive effect. State v.

Baird, 654 N.W.2d 105, 110 (Minn. 2002).

       Here, we conclude that Her is not a new rule of law and applies to Meger’s case.

Prior to 2006, the year that Meger’s conviction became final, the U.S. Supreme Court and

the Minnesota Supreme Court had collectively developed the Sixth Amendment principle

requiring a jury, not a judge, to find the necessary facts to impose a conditional-release

term exceeding the statutory maximum sentence for an offense.

       For example, in 2000, the U.S. Supreme Court held in Apprendi v. New Jersey that

a criminal defendant was entitled to a jury determination of every element that increases

the penalty for a crime beyond a reasonable doubt. 530 U.S. 466, 490, 120 S. Ct. 2348,


                                              5
2362-63 (2000). The following year, the Minnesota Supreme Court held in State v.

Grossman that judicial findings that enhanced a statutory maximum 30-year sentence for

first-degree criminal sexual conduct to 40 years under the patterned sex offender statute

violated Apprendi. 636 N.W.2d 545, 551 (Minn. 2001). In 2003, the Minnesota Supreme

Court followed Apprendi in Jones, holding that a defendant has a Sixth Amendment jury-

trial right on findings needed to impose a conditional-release term that exceeds the

prescribed statutory maximum sentence for an offense. 659 N.W.2d at 751. In 2004, the

U.S. Supreme Court held in Blakely v. Washington 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.” 542 U.S.

296, 301, 124 S. Ct. 2531, 2536 (2004) (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at

2362-63).

      Her is merely an application of the Sixth Amendment jury-trial right that governed

the Minnesota Supreme Court’s previous decisions in Jones and Grossman and U.S.

Supreme Court precedent. Her involved an almost identical set of facts to the instant case.

The defendant in Her challenged his sentence under rule 27.03, subd. 9, asserting that the

district court violated his Sixth Amendment jury-trial right by imposing a conditional-

release term on judicial findings concerning his risk-level-III status. 862 N.W.2d at 694.

In reversing, the supreme court drew from precedent, stating, “consistent with Blakely,

Jones, and Grossman, we conclude that the [ten]-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.” Id. at 697. Her applies to Meger’s case.


                                            6
II.    The postconviction court did not err in construing Meger’s motion as timely
       under Minn. R. Crim. P. 27.03, subd. 9.

       An offender may challenge a sentence by filing a petition for postconviction relief

under Minn. Stat. § 590.01, subd. 1(1), or by filing a motion to correct the sentence under

Minn. R. Crim. P. 27.03, subd. 9. Washington v. State, 845 N.W.2d 205, 210 (Minn. App.

2014). A motion to correct a sentence under Minn. R. Crim. P. 27.03, subd. 9, may be

treated as a postconviction petition. See Bonga v. State, 765 N.W.2d 639, 642-43 (Minn.

2009). The “remedy in rule 27.03, subdivision 9, . . . coexist[s] with the postconviction

remedy.” Vazquez v. State, 822 N.W.2d 313, 317 (Minn. App. 2012).

       “[T]he two-year time limit [in section 590.01, subdivision 4(a)] does not apply to

motions properly filed under” rule 27.03, subdivision 9. Vazquez, 822 N.W.2d at 318. But

“rule 27.03, subdivision 9, authorizes relief only if a party challenges a sentence, as

opposed to a conviction, and only if a party does so by asserting that a sentence is

‘unauthorized by law’ in the sense that the sentence is contrary to an applicable statute or

other applicable law.” Washington, 845 N.W.2d at 213 (citation omitted).

       The state argues that the district court abused its discretion by relying on Reynolds

v. State, 874 N.W.2d 257 (Minn. App. 2016), review granted (Minn. Mar. 29, 2016), to

allow Meger to challenge the conditional-release term under rule 27.03 and asserts that

Meger should have been barred by the two-year postconviction statute of limitations in

Minn. Stat. § 590.01, subd. 4(a) (2012).

       In Reynolds, we examined the same substantive question raised by the state as in the

case at bar—whether a defendant can raise a Blakely challenge of a judicially imposed



                                             7
conditional-release term in a rule 27.03 motion. 874 N.W.2d at 260-61. Applying Her,

we concluded that rule 27.03 is an appropriate vehicle to bring such a challenge so long as

the defendant only seeks to remove an unconstitutionally imposed sentence and does not

challenge the validity of the plea or conviction. Id. at 262.

       At oral argument, the state relied on State v. Collins to argue that Reynolds is no

longer precedential because it is currently under review by the Minnesota Supreme Court.

580 N.W.2d 36, 43 (Minn. App. 1988), review denied (Minn. July 16, 1988). The supreme

court granted review of Reynolds on March 29.

       We conclude that while Reynolds is currently under review by the Minnesota

Supreme Court, it remains good law until and unless it is overturned. Even though

Reynolds might not be “final,” we generally follow a rule of law until the Minnesota

Supreme Court announces a different rule of law. See State v. M.L.A., 785 N.W.2d 763,

767 (Minn. App. 2010) (“[T]his court[] is bound by supreme court precedent and the

published opinions of the court of appeals.”), review denied (Minn. Sept. 21, 2010). Here,

Reynolds is not only persuasive in that it is factually similar to the instant case, but it is also

a published opinion of this court, which we follow.

III.   The postconviction court did not abuse its discretion by vacating Meger’s
       conditional-release term and modifying his sentence to the maximum
       sentence allowable under the plea agreement.

       We review sentencing departures for an abuse of discretion. State v. Masood, 739

N.W.2d 736, 738 (Minn. App. 2007).

       Principally relying on State v. Wukawitz, the state argues that the postconviction

court erred by not allowing Meger to withdraw his plea, which the supreme court stated in


                                                8
Wukawitz as the preferable option when a conditional-release term violates a plea

agreement and the state is not unduly prejudiced by withdrawal. 662 N.W.2d 517, 527

(Minn. 2003).

       At the outset, we note that the state has limited itself to arguing for only plea

withdrawal as a remedy because it failed to brief or argue for any other remedy that the

postconviction court could have granted Meger. “Failure to brief or argue an issue on

appeal results in forfeiture of that issue on appeal.” Ouk v. State, 847 N.W.2d 698, 701,

n.7 (Minn. 2014), cert denied, 135 S. Ct. 1429 (2015). “Issues not raised or argued in

appellant’s [principal] brief cannot be revived in a reply brief.” State v. Petersen, 799

N.W.2d 653, 660 (Minn. App. 2011), review denied (Minn. Sept. 28, 2011).

       Wukawitz is factually distinguishable from the instant case in that Wukawitz did not

involve a Blakely challenge to an illegal conditional-release term, as we are presented here.

In Wukawitz, the statutorily mandated conditional-release term was legal, but it was

imposed in such a way where it exceeded the maximum sentence contemplated and agreed

upon by the parties at the plea hearing. 662 N.W.2d at 520. Here, Meger is not attacking

the validity of his guilty plea or the plea agreement. He is only challenging an unauthorized

sentence because he did not waive his Blakely rights at the plea hearing.

       It is within a postconviction court’s discretion to choose whether or not to impanel

a sentencing jury in the wake of a Blakely sentencing violation. Masood, 739 N.W.2d at

741. In Masood, appellant moved under rule 27.03 to correct the district court’s imposition

of an upward sentence departure of 144 months based on aggravating factors, arguing that

the upward sentence departure violated Blakely because it exceeded the presumptive


                                             9
maximum allowable sentence and the aggravating factors were not proven beyond a

reasonable doubt before a jury. 739 N.W.2d at 737-38. In affirming the district court’s

decision not to impanel a sentencing jury and instead modify the defendant’s sentence, we

noted that “the fact that the court has the authority to impanel a jury when there has been a

Blakely sentencing violation is not tantamount to a mandate to do so.” Id. at 740.

       One of the established remedies available to the postconviction court for this type

of Blakely violation is to modify the sentence to the maximum presumptive sentence. See

id. at 738; Grossman, 636 N.W.2d at 548; Jones, 659 N.W.2d at 753-54 (ordering

postconviction court to modify defendant’s sentence for criminal sexual conduct to include

a conditional-release term that was supported by jury verdict so long as the final sentence

did not exceed the maximum presumptive sentence under law).

       The postconviction court did not err in vacating the illegal ten-year conditional-

release term and modifying Meger’s sentence to the maximum allowable under the plea

agreement.

       Affirmed.




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