                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A15-0466

Court of Appeals                                                         Anderson, J.
                                                              Took no part, Chutich, J.

State of Minnesota,

                      Respondent,

vs.                                                                 Filed: July 6, 2016
                                                             Office of Appellate Courts
Forrest Grant Noggle,

                      Appellant.

                                   ______________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Paul J. Kiltinen, Dodge County Attorney, Gary ReMine, Assistant Dodge County
Attorney, Mantorville, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.

                                   ______________________

                                       SYLLABUS

      The plain language of Minn. Stat. § 609.3455, subd. 6 (2014), does not authorize

the imposition of a 10-year conditional-release term for appellant’s conviction of

attempted third-degree criminal sexual conduct.

      Reversed and remanded.

      Considered and decided by the court without oral argument.


                                             1
                                      OPINION

ANDERSON, Justice.

      Appellant Forrest Grant Noggle was convicted of attempted third-degree criminal

sexual conduct. Minn. Stat. § 609.17 (2014); see Minn. Stat. § 609.344, subd. 1(b)

(2014). After Noggle violated the terms of his probation, the district court sentenced him

to 18 months in prison and imposed a 10-year conditional-release term under Minn. Stat.

§ 609.3455, subd. 6 (2014). The sole issue on appeal is whether section 609.3455,

subdivision 6, authorizes a 10-year conditional-release term for the crime of attempted

third-degree criminal sexual conduct. We hold that it does not. Therefore, we reverse the

decision of the court of appeals and remand to the district court with an instruction to

vacate the 10-year conditional-release term.

                                               I.

      On May 10, 2007, Noggle initiated an online chat conversation with an adult

police officer posing as a 14-year-old girl, “Jessica.” Noggle stated that he wanted to

engage in sexual activities with Jessica and then arranged to meet her. On his arrival at

the agreed upon meeting place, police officers arrested Noggle. Noggle admitted that he

believed “Jessica” was 14 years of age and that he discussed having sex with her while

chatting with her online. Noggle pleaded guilty to attempted third-degree criminal sexual

conduct. Minn. Stat. § 609.17; see Minn. Stat. § 609.344, subd. 1(b). The district court

stayed adjudication of guilt and placed Noggle on probation.

      In December 2008, after Noggle violated his probation conditions, the district

court revoked the stay of adjudication but stayed the imposition of Noggle’s sentence. In

                                               2
January 2015, after Noggle again violated his probation conditions, the district court

executed an 18-month prison sentence and imposed a 10-year conditional-release term.

See Minn. Stat. § 609.3455, subd. 6.        Noggle did not object to the district court’s

imposition of the 10-year conditional-release term.1 After Noggle appealed, the court of

appeals affirmed the imposition of the 10-year conditional release term. State v. Noggle,

No. A15-0466, 2015 WL 4994693 (Minn. App. Aug. 24, 2015).2 We granted Noggle’s

petition for review on the question of whether Minn. Stat. § 609.3455, subd. 6, authorizes

a 10-year conditional-release term for Noggle’s conviction of attempted third-degree

criminal sexual conduct.3

                                              II.

       The sole issue presented in this case is whether Minn. Stat. § 609.3455, subd. 6,

authorizes a 10-year conditional-release term for the crime of attempted third-degree



1
        With respect to an allegedly illegal sentence of the type presented here, Noggle did
not forfeit his claim by failing to object before the district court. See State v. Maurstad,
733 N.W.2d 141, 146-47 (Minn. 2007) (“[A] defendant may not waive sentencing issues
in some contexts—for example, when a particular kind of sentencing error results in an
illegal sentence.” (citing Minn. R. Crim. P. 27.03, subd. 9)).
2
      The decision of the court of appeals also affirmed the district court’s revocation of
Noggle’s probation. Noggle, 2015 WL 4994693, at *3. We do not address that issue
because it was not raised by Noggle in his petition for review to our court. State v.
Koppi, 798 N.W.2d 358, 366-67 (Minn. 2011).
3
       By order dated January 25, 2016, we scheduled this case for nonoral consideration
because the State did not file a brief. See Minn. R. Crim. P. 29.04, subd. 9(2) (stating that
“a party forfeits oral argument . . . for not timely filing its brief”); see also Minn. R. Civ.
App. P. 142.03 (“If the respondent fails or neglects to serve and file its brief, the case
shall be determined on the merits.”).


                                              3
criminal sexual conduct. Interpreting a sentencing statute is a question of law, which we

review de novo. See State v. Leathers, 799 N.W.2d 606, 608 (Minn. 2011).

       The Minnesota Legislature has the “exclusive authority to define crimes and

offenses and the range of the sentences or punishments for their violation.” Minn. Stat.

§ 609.095(a) (2014). Therefore, a district court may not impose any “other or different

sentence or punishment . . . for the commission of a crime than is authorized” by statute.

Id. A sentence that is unauthorized by law may be corrected “at any time.” Minn. R.

Crim. P. 27.03, subd. 9; see, e.g., State v. Schnagl, 859 N.W.2d 297, 301-02 (Minn. 2015)

(stating that Rule 27.03, subdivision 9, “provides for review of the legality of the district

court’s sentence” and that “[w]e have approved of the use of [that rule] to correct the

conditional-release term of a previously imposed sentence” (emphasis omitted)).

       Here, Noggle was convicted of attempted third-degree criminal sexual conduct.

Attempt is defined in Minn. Stat. § 609.17, which provides as follows:

       Subdivision 1. Crime defined. Whoever, with intent to commit a crime,
       does an act which is a substantial step toward, and more than preparation
       for, the commission of the crime is guilty of an attempt to commit that
       crime, and may be punished as provided in subdivision 4.

Minn. Stat. § 609.17, subd. 1.

       Under Minn. Stat. § 609.3455, subd. 6, a mandatory 10-year conditional-release

term applies to a defendant’s violation of any of five enumerated statutes, which define

certain sex crimes. The statute defining attempt, Minn. Stat. § 609.17, subd. 1, is not one

of the five enumerated statutes.     Nor does the word “attempt” appear anywhere in

subdivision 6. More specifically, subdivision 6 provides as follows:


                                             4
       Subd. 6.          Mandatory ten-year conditional release term.
       Notwithstanding the statutory maximum sentence otherwise applicable to
       the offense . . . when a court commits an offender to the custody of the
       commissioner of corrections for a violation of section 609.342, 609.343,
       609.344, 609.345, or 609.3453, 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 (emphasis added).

       The statute defining the offense that Noggle attempted—third-degree criminal

sexual conduct, Minn. Stat. § 609.344—is enumerated in subdivision 6. But Noggle was

never charged or convicted of the crime defined by section 609.344. Rather, Noggle

was convicted only of the crime of attempted third-degree criminal sexual conduct.

Thus, the question is whether Noggle’s conviction of the crime of attempted third-degree

criminal sexual conduct, see Minn. Stat. § 609.17, subd. 1, can be considered “a

violation of” the statutory offense that Noggle attempted, see Minn. Stat. § 609.344,

subd. 1(b).

                                            A.

       The court of appeals affirmed the district court’s imposition of a 10-year

conditional-release term based on two rationales: (1) any conviction for an attempted

crime is “a violation of both the attempt statute and the statute defining the underlying

crime”; and (2) attempt is not a distinct crime but rather is merely a “sentence modifier.”

Noggle, 2015 WL 4994693 at *2.

       First, the court of appeals reasoned that, “[b]ecause a defendant cannot be

convicted of attempt without an underlying crime that was attempted, any conviction for

an attempted crime is a violation of both the attempt statute and the statute defining the

                                             5
underlying crime.” Noggle, 2015 WL 4994693 at *2. The court of appeals stated that

“Minnesota courts routinely describe attempt crimes as violations of both the attempt

statute . . . and the statute defining the crime attempted.” Id. As authority, the court of

appeals quoted State v. Vang, 847 N.W.2d 248, 255 (Minn. 2014) (“[A]ttempted first-

degree felony murder (drive-by shooting), in violation of Minn. Stat. §§ 609.17 (2012),

609.185(a)(3) . . . .”). But the quoted language was merely an excerpt from a string

citation in the statement of facts, which listed the allegations from the complaint.

Moreover, the quoted language cannot be logically read to state that the attempted first-

degree felony murder of the victim in Vang was a violation of the underlying statute

defining first-degree felony murder, Minn. Stat. § 609.185(a)(3), because the victim did

not die.   Thus, because a necessary element of the underlying statute was not

committed—namely,      “caus[ing] the death of a human being,”               Minn. Stat.

§ 609.185(a)(3)—the defendant could not have “violated” that statute.          Rather, the

citation to section 609.185(a)(3) was provided as a cross-reference, i.e., to describe the

offense that the defendant attempted to commit.

       In several other cases, we have used language that may have unintentionally

suggested that attempt convictions were “violations of” the statutes defining the offenses

that were attempted. See, e.g., Ouk v. State, 847 N.W.2d 698, 700 (Minn. 2014) (stating

that appellant was found guilty of “two counts of attempted first-degree murder, in

violation of Minn. Stat. § 609.05, Minn. Stat. § 609.17 (2012), and Minn. Stat.

§ 609.185(3)”); State v. White, 684 N.W.2d 500, 502 (Minn. 2004) (stating that appellant

was convicted of “attempted first-degree premeditated murder of [the victim], in violation

                                            6
of Minn. Stat. §§ 609.17, subd. 2 and 609.185(a)(1) (2002)”); State v. Ronquist, 600

N.W.2d 444, 445 (Minn. 1999) (stating that appellant was convicted of “attempted

criminal sexual conduct in the first-degree in violation of Minn. Stat. § 609.342, subd.

1(e)(i) (1998) and Minn. Stat. § 609.17 (1998)”); Dale v. State, 535 N.W.2d 619, 621

(Minn. 1995) (stating that appellant was convicted of “attempted first-degree criminal

sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (1994) and Minn. Stat.

§ 609.17 (1994)”). But these statements were not made as part of any legal analyses or

holdings.   Rather, they were summaries of the convictions or charges against the

defendants in those cases. And the above-quoted convictions did not “violate” the statute

defining the offenses attempted—such a result would have been illogical because the

necessary elements of the uncompleted offenses were only attempted.            Rather, the

statutory citations were provided as explanatory references, to connect the crime of

attempt to the relevant uncompleted offenses. Regardless of any suggestions to the

contrary gleaned from our prior cases, we now take this opportunity to clarify that a

defendant’s conviction solely for an attempt, Minn. Stat. § 609.17, is not a “violation” of

the statute defining the offense attempted.

       Second, the court of appeals reasoned that attempt is a “ ‘sentence modifier,’

rather than a crime distinct from the attempted offense.” Noggle, 2015 WL 4994693, at

*2. We do not agree. The attempt statute and our case law treat an attempt as a crime

rather than solely as a procedural sentence modifier. See Minn. Stat. § 609.17, subd. 1

(“Crime defined. Whoever, with intent to commit a crime, does an act which is a

substantial step toward, and more than preparation for, the commission of the crime is

                                              7
guilty of an attempt . . . .” (emphasis added)). For example, in State v. Olkon, we

described the “essential elements of the crime of attempt” and stated that “the crimes of

conspiracy and attempt each require distinct elements of proof and are entirely separate

crimes.” 299 N.W.2d 89, 104 (Minn. 1980) (emphasis added).

      To support its conclusion that attempt is merely a “sentence modifier” rather than

a separate offense, the court of appeals relied on language in the Minnesota Sentencing

Guidelines. Noggle, 2015 WL 4994693 at *2 (“The Minnesota Sentencing Guidelines

refer to attempt as a ‘sentence modifier,’ rather than a crime distinct from the attempted

offense.” (citing Minn. Sent. Guidelines §§ 2.A.5; 2.G.l)). The guidelines refer to the

offense of attempt as a “sentence modifier” because the presumptive sentence duration

for attempt is one-half of that for the underlying offense. Minn. Stat. § 609.17, subd. 4;

Minn. Sent. Guidelines §§ 2.A.5; 2.G.2.4 But nowhere do the sentencing guidelines

suggest that the label of “sentence modifier” means that an attempt is not an offense

separate from the offense attempted. And more importantly, no Minnesota statute or

precedent from our court has ever stated that attempt is a sentence modifier rather than a




4
       In Section 2.A.5, the guidelines state: “When the current offense includes a
sentence modifier, such as attempt or conspiracy, the severity level is found by
determining the severity level for the underlying offense.”

      In Section 2.G.2, the guidelines state: “When an offender is sentenced for an
attempted offense under Minn. Stat. § 609.17 or for conspiracy to commit an offense
under Minn. Stat. § 609.175, the presumptive duration is one-half of that found in the
appropriate cell on the applicable Grid for the underlying offense.”



                                            8
separate offense.5 As discussed above, we have held that the crimes of attempt and

conspiracy—both labeled as “sentence modifiers” in the sentencing guidelines—are

“separate crimes” with “distinct elements.” Olkon, 299 N.W.2d at 104.

      It is nonetheless true that, as a matter of criminal-law theory, attempt is an

inchoate crime that must be connected to an uncompleted substantive crime that was

attempted.   This connection is necessary to determine whether a defendant took a

“substantial step toward” committing the uncompleted crime, Minn. Stat. § 609.17, subd.

1, and to determine the presumptive sentence for an attempt conviction, see Minn. Stat.

§ 609.17, subd. 4; Minn. Sent. Guidelines § 2.G.2. But this connection does not mean

that an attempt is not a separate offense—and it does not mean that a conviction of

attempt and a conviction of a completed substantive crime are one and the same.

                                           B.

      In this case, the district court committed Noggle to the commissioner of

corrections for attempted third-degree criminal sexual conduct. But Noggle did not

“violate” the statute defining the uncompleted offense, third-degree criminal sexual

conduct, Minn. Stat. § 609.344, subd. 1(b), because he did not commit a necessary

element of that statute—namely, he did not engage in sexual penetration. (Nor was it

possible for him to do so because “14-year-old Jessica” did not exist.) The statute

defining Noggle’s crime of attempt, Minn. Stat. § 609.17, is not enumerated in Minn.

Stat. § 609.3455, subd. 6. Nor does any language appear in subdivision 6 that plainly

5
       Indeed, no Minnesota statute or decision from our court has ever used the exact
phrase “sentence modifier” in any context.


                                           9
includes an attempt. Thus, the district court did not commit Noggle “to the custody of the

commissioner of corrections for a violation of section 609.342, 609.343, 609.344,

609.345, or 609.3453,” as required by Minn. Stat. § 609.3455, subd. 6.           (Emphasis

added.) Therefore, the district court’s imposition of a 10-year conditional-release term

was not authorized by subdivision 6.

       In addition, Noggle persuasively argues that the Legislature’s omission of attempts

from subdivision 6 may be intentional. Other provisions of the same statute demonstrate

that the Legislature was aware of, and understood how to include, attempts. See Minn.

Stat. § 609.3455, subd. l(b) (defining the word “conviction” to include “a violation of, or

an attempt to violate” the enumerated sex-crime statutes (emphasis added)); id., subd.

l(h) (defining “sex offense” to mean “any violation of, or attempt to violate” the

enumerated sex-crime statutes (emphasis added)). These definitions indicate that the

Legislature understood that the phrase “violation of [enumerated statutes]” does not

include the crime of attempt without the added clause “or attempt to violate.” If the

Legislature had intended to include attempts in subdivision 6, it would have inserted the

same “or attempt to violate” clause after the “violation of” clause, as it did elsewhere, or

it would have used one of the defined terms that includes attempts. Subdivision 6 never

uses the defined terms “conviction” or “sex offense,” both of which include attempts and

are used frequently in other subdivisions of the same statute.

       Even if the omission of attempts in subdivision 6 were inadvertent or an oversight

by the Legislature, we must apply the plain language of the statute, which does not

authorize a 10-year conditional-release term for attempted crimes. Holding that such a

                                            10
term is authorized would require us to read in additional language (“or attempt to

violate”) or an additional enumerated statute (Minn. Stat. § 609.17), which is forbidden

by our rules of statutory construction. Minn. Stat. § 645.16 (2014) (“[T]he letter of the

law shall not be disregarded . . . .”); see Premier Bank v. Becker Dev., LLC, 785 N.W.2d

753, 760 (Minn. 2010) (“[O]ur rules of construction ‘forbid adding words or meaning to a

statute’ that are purposely omitted or inadvertently overlooked.” (quoting Genin v. 1996

Mercury Marquis, 622 N.W.2d 114, 117 (Minn. 2001))). Applying subdivision 6 to

attempts would require us to rewrite the statute to state, for example:

       Notwithstanding the statutory maximum sentence otherwise applicable to
       the offense . . . when a court commits an offender to the custody of the
       commissioner of corrections for a violation of, or an attempt to violate,
       section 609.342, 609.343, 609.344, 609.345, or 609.3453, 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.

       Because we cannot read in additional language, but rather must apply the plain

language of the statute as written, we hold that Minn. Stat. § 609.3455, subd. 6, does not

authorize a 10-year conditional-release term for Noggle’s conviction of attempted third-

degree criminal sexual conduct. Therefore, the 10-year conditional-release term imposed

by the district court was unauthorized by law and must be vacated. See Minn. Stat.

§ 609.095(a); Minn. R. Crim. P. 27.03, subd. 9.6 For the above reasons, we reverse the


6
       Our holding is not precluded by State v. Garcia, 582 N.W.2d 879, 881 (Minn.
1998). In Garcia, we affirmed a 10-year conditional-release term for a defendant who
was convicted of attempted first-degree criminal sexual conduct. But that term was
imposed under a previous version of the statute at issue here. Minn. Stat. § 609.346,
subd. 5 (1996), repealed, Act of Apr. 6, 1998, ch. 367, art. 6, § 16, 1998 Minn. Laws 666,
735. Moreover, the defendant in Garcia never argued that his conditional-release term
                                                        (Footnote continued on next page.)

                                             11
decision of the court of appeals and remand to the district court with an instruction to

vacate Noggle’s 10-year conditional-release term.

       Reversed and remanded.



       CHUTICH, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.




(Footnote continued from previous page.)
was unauthorized because it was an attempt. Rather, he argued only that amending his
sentence to include a conditional-release term was precluded by due process and double
jeopardy because his plea agreement did not include such a term. Garcia, 582 N.W.2d at
881. Because the illegal-sentencing argument here was not presented in Garcia, that
decision is not controlling in this case.


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