                        This opinion will be unpublished and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
                                   A13-2362

                                 State of Minnesota,
                                      Appellant,

                                         vs.

                                 Richard Allen Ihnot,
                                    Respondent.

                              Filed September 14, 2015
                                      Reversed
                                  Schellhas, Judge

                             Anoka County District Court
                              File No. 02-K6-95-011844

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

Anthony C. Palumbo, Anoka County Attorney, Marcy S. Crain, Assistant County
Attorney, Anoka, Minnesota (for appellant)

Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
respondent)

      Considered and decided by Reyes, Presiding Judge; Schellhas, Judge; and Harten,

Judge.*




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                           UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant challenges the district court’s order modifying the expiration of

respondent’s conditional-release term. We reverse.

                                            FACTS

         A jury convicted respondent Richard Allen Ihnot of four counts of first-degree

criminal sexual conduct against his live-in girlfriend’s child. On February 16, 1996, the

district court sentenced Ihnot to 244 months’ imprisonment. On May 30, 2000, the court

added a mandatory ten-year conditional-release term to Ihnot’s sentence.1

         On August 17, 2009, the Minnesota Department of Corrections (DOC) placed

Ihnot on supervised release for a period of 77 months and 21 days with an expiration date

of February 5, 2016. Ihnot’s conditional-release term was scheduled to expire on

August 14, 2019. On June 8, 2010, the DOC returned Ihnot to custody for alleged

violations of his supervised-release conditions. The record is unclear about how long

Ihnot remained in custody or whether he remains in custody. But the parties agree that as

a result of Ihnot’s return to custody, the DOC extended the expiration date of Ihnot’s

conditional-release term to April 6, 2025.

         In August 2013, Ihnot moved the district court to correct his sentence under Minn.

R. Crim. P. 27.03, subd. 9, seeking to reduce his conditional-release term by an amount




1
    Ihnot does not challenge the addition of the conditional-release term.


                                               2
equal to his original supervised-release term of 77 months and 21 days.2 After hearing

argument from both parties, the court granted Ihnot’s motion to correct his sentence,

ordering that “[Ihnot] is entitled to have the 77 months and 21 days he was on supervised

release deducted from his conditional release period.” The state appealed, and we stayed

the appeal pending the supreme court’s decision in State v. Schnagl, 859 N.W.2d 297

(Minn. 2015). After the supreme court issued Schnagl, we dissolved the stay.

                                     DECISION

         Relying on Schnagl, appellant State of Minnesota argues that the district court

erred by modifying Ihnot’s sentence under Minn. R. Crim. P. 27.03, subd. 9, because

Ihnot could seek review of the DOC’s decision only through a petition for writ of habeas

corpus under Minn. Stat. § 589.01 (2014). This argument involves the interpretation of

statutes and rules, which is a question of law subject to de novo review. See State v.

Riggs, 865 N.W.2d 679, 682 (Minn. 2015) (“Statutory interpretation presents a question

of law, which [appellate courts] review de novo.”); State v. Johnson, 744 N.W.2d 376,

379 (Minn. 2008) (“Interpretation of the rules of criminal procedure is a question of law,

which [appellate courts] review de novo.”).

         Schnagl’s executed sentence included a five-year conditional-release term.

Schnagl, 859 N.W.2d at 299. While Schnagl was serving his term of supervised release,

the DOC revoked his supervised release on two separate occasions due to supervised-

release violations. Id. “When Schnagl was later released from custody to begin his

conditional-release term, the [DOC] notified Schnagl that he was not entitled to credit for

2
    Ihnot did not name the DOC as a party.

                                              3
the time spent in custody for his supervised-release violations, and therefore his

conditional-release expiration date was extended.” Id. Schnagl moved to correct his

sentence under Minn. R. Crim. P. 27.03, subd. 9. Id. The state argued that the district

court lacked jurisdiction over the matter and that Schnagl’s motion lacked merit. Id. The

court concluded that it had jurisdiction over the matter but denied Schnagl’s motion on

the merits. Id. at 299−300. On appeal, the state renewed its jurisdictional argument. Id. at

300. We rejected that argument and affirmed the district court, “explaining that Schnagl

was not entitled to credit against his conditional-release term for time spent in custody for

supervised-release violations.” Id. (footnote omitted).

       The supreme court granted Schnagl’s petition for further review, concluded that

“the district court had subject matter jurisdiction over Schnagl’s motion,” and then

considered the “proper procedure [for Schnagl] to obtain judicial review of the [DOC]’s

decision.” Id. at 301−02. The supreme court concluded that

              a motion to correct a sentence under Minn. R. Crim. P. 27.03,
              subd. 9, is not the proper procedure to obtain judicial review
              of the [DOC]’s administrative decision implementing the
              sentence imposed by the district court. Instead, judicial
              review of the [DOC]’s administrative decision implementing
              the sentence imposed may be obtained by a petition for a writ
              of habeas corpus in which the [DOC] is a named party.

Id. at 303 (footnote omitted).

       Here, through a motion to correct his sentence under rule 27.03, subd. 9, Ihnot has

challenged the DOC’s extension of his conditional-release term that resulted from the

revocation of his supervised release. Schnagl dictates that the proper procedure for Ihnot

to obtain judicial review of the DOC’s administrative decision to extend his conditional-


                                             4
release term is a petition for a writ of habeas corpus in which the DOC is a named party.

See id. Because Ihnot’s motion to correct a sentence under Minn. R. Crim. P. 27.03, subd.

9, was an improper procedure to obtain judicial review of the DOC’s administrative

decision, we reverse the district court’s order granting his motion.

       Ihnot argues that the state waived this procedural argument by failing to raise it to

the district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (“[Appellate

courts] generally will not decide issues which were not raised before the district

court . . . .”). We disagree. In district court, Ihnot sought review of the DOC’s

administrative decision that extended his conditional-release term, not the district court’s

sentence. See Schnagl, 859 N.W.2d at 302 (stating that “a request for the correction of a

release term challenges the decision of the Commissioner of Corrections,” which “does

not involve the legality of the sentence imposed by the district court” (emphasis in

original)). The state cannot waive a procedural argument that belongs to the DOC, a

nonparty. In the absence of the DOC as a party, the district court’s order that “[Ihnot] is

entitled to have the 77 months and 21 days he was on supervised release deducted from

his conditional release period” could very well be a nonbinding advisory opinion. See id.

at 303 (“In the absence of the [DOC] as a party, a district court’s order directing the

[DOC] to correct the expiration date of a conditional-release term could very well be a

non-binding advisory opinion.”).

       Because we reverse for Ihnot’s failure to use the proper procedure to obtain review

of the DOC’s administrative decision, we need not reach the merits of the state’s

statutory-interpretation argument. We note, as did the supreme court in Schnagl, that


                                             5
“[n]othing in this opinion . . . preclud[es Ihnot] from filing a petition for habeas corpus if

he continues to seek relief from the [DOC]’s decision and remains in custody.” See id. at

304 n.9.

       Reversed.




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