author: DIETZEN, Judge

text:
    Roland C. AMUNDSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-1245.
    Court of Appeals of Minnesota.
    May 23, 2006.

      Ronald I. Meshbesher, Meshbesher & Spence, Ltd., Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Patrick Diamond, Assistant County Attorneys, Minneapolis, MN, for respondent.
    Considered and decided by WORKE, Presiding Judge; DIETZEN, Judge; and COLLINS, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

DIETZEN, Judge

Appellant challenges the denial of his petition for postconviction relief, arguing that the 2002 appointment of the Honorable H. Richard Hopper, formerly a district court judge, by the chief justice of the Minnesota Supreme Court to preside over criminal charges against appellant was unconstitutional because Judge Hopper was not a “retired judge” within the meaning of article VI, section 10 of the Minnesota Constitution and the applicable statutes. Because Judge Hopper was a “retired judge” under the Minnesota Constitution, we affirm.

FACTS

Appellant Roland C. Amundson served as a judge on the Minnesota Court of Appeals from 1991 until 2002. Before being appointed to the Minnesota Court of Appeals in 1991, appellant served as personal representative and executor of an estate. The Amy Day Trust, which was a beneficiary of the estate, was created to provide for a mentally handicapped woman. In 1994, after six years of probate proceedings, the estate was settled, the trust received its distributive share, and appellant assumed control of the trust. Ordinarily, judges are precluded from serving as fiduciaries for non-family members, but appellant obtained a waiver from the Minnesota Board of Judicial Standards to serve as trustee. See Minn.Code Jud. Conduct Canon 4E(1).

Appellant embezzled more than $300,000 from the trust for his own use. When appellant’s actions were discovered in 2002, he resigned as a judge of the court of appeals and was disbarred. He was then charged in Hennepin County with five counts of theft by swindle. The chief justice of the Minnesota Supreme Court appointed the Honorable H. Richard Hopper, who formerly served as a judge of the district court, to preside over all matters relating to the Amy Day Trust. The appointment order identified Judge Hopper as a “Retired Judge of the District Court of the First Judicial District of the State of Minnesota” and it indicated that the appointment was made pursuant to Minn. Stat. § 2.724, subd. 3(a), which authorizes the chief justice to assign any retired judge to serve “as a judge of any court except the Supreme Court.”

Judge Hopper was appointed to the district court in 1989. In 1990, he was elected to the seat and served in that position until 1996. In February 1996, Judge Hopper, who was then 48 years old, requested that the governor accept his “resignation” from the bench. The governor accepted Judge Hopper’s resignation and ordered that Judge Hopper’s “retirement” become effective on June 1, 1996. The director of judicial appointments informed the state court administrator of the upcoming judicial vacancy, indicating that the governor had “granted retirement” to Judge Hopper. The governor accepted Judge Hopper’s “resignation” and recognized that the judge’s “decision to resign from the bench could not have been an easy one.”

Judge Hopper was assigned, without objection, to appellant’s case in 2002. Following appellant’s guilty plea to five counts of theft by swindle, Judge Hopper ordered that appellant receive upward sentencing departures on all five counts based on aggravating factors (vulnerability of the victim, abuse of a position of trust, and major economic offense). The concurrent sentences totaled 69 months. Appellant did not file a direct appeal from the convictions or sentences.

In December 2004, nearly two-and-one-half years after his conviction and sentencing, appellant filed a postconviction petition, arguing that the appointment of Judge Hopper violated the Minnesota Constitution and applicable statutes. The postconviction petition was considered by a sitting district court judge who had not previously heard any aspect of the case. That judge denied relief, concluding that the assignment did not violate the state constitution. This appeal follows.

ISSUES

I. Is this appeal time-barred?

II. Is appellant’s claim moot?

III. Did the district court err by concluding that Judge Hopper was a “retired judge” eligible for assignment by the chief justice to act as a judge of the district court?

IV. Does the de facto judge doctrine apply?

ANALYSIS

I.

As a threshold matter, respondent contends that this court should dismiss appellant’s appeal as an untimely collateral attack on his conviction because his petition for postconviction relief was filed two- and-a-half years after his initial sentence. We disagree.

Minn.Stat. § 590.01, subd. 4(a) (Supp. 2005), provides: “No petition for postcon-viction relief may be filed more than two years after the later of: (1) the entry of judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate court’s disposition of petitioner’s direct appeal.” This time limit became effective on August 1, 2005. 2005 Minn. Laws c. 136, art. 14, § 13 (providing “[a]ny person whose conviction became final before August 1, 2005, shall have two years after the effective date of this act to file a petition for postconviction relief.”).

Respondent concedes that this statute does not apply retroactively to appellant and that this court is not statutorily precluded from considering appellant’s appeal. Respondent nonetheless argues that we should dismiss this appeal based on State v. Harris, 667 N.W.2d 911 (Minn.2003), and State v. DeShay, 669 N.W.2d 878 (Minn.2003).

In Harris, the defendant was convicted after a trial over which a judicial officer appointed by the chief judge of the district court presided. 667 N.W.2d at 913-14. On direct appeal to the Minnesota Supreme Court, the defendant argued for the first time that the judicial officer lacked jurisdiction to hear the case. Id. The supreme court, despite the defendant’s failure to raise the issue in the trial court, analyzed the merits of respondent’s jurisdictional argument, stating: “Although we look with disfavor upon Harris’s delay in raising the issue of the judicial officer’s lack of authority until after his conviction, we nonetheless believe that it would be unjust not to consider his claim on direct appeal.” Id. at 921.

Respondent argues that this court should view appellant’s lack of timeliness in raising the jurisdictional issue “with disfavor” and, accordingly, dismiss appellant’s claim. Like the Harris court, however, we conclude that, despite the lack of timeliness, it would be unjust to not consider appellant’s jurisdictional claim. It is immaterial that the defendant in Harris raised the issue on direct appeal while appellant raised it in a postconviction petition two-and-one-half years after his conviction.

Respondent next argues that we should dismiss this appeal as untimely based on DeShay. But respondent has failed to establish how DeShay supports its claim that the appeal was untimely. In DeShay, the appellant was convicted after a jury trial presided over by a judicial officer. DeShay, 669 N.W.2d at 883-84. During the pendency of his appeal, but after the submission of briefs and oral arguments, the supreme court filed its Harris opinion. Id. at 884 n. 5 (citing Harris, 667 N.W.2d 911). DeShay moved to reopen the appeal to allow for additional briefing and oral argument in light of Harris, and the state opposed the motion, arguing that it was untimely. The supreme court decided the case, but reserved the Hams issue, stating that it could be raised in a posteonviction proceeding. Id.

Because we conclude that it is in the interests of justice to consider appellant’s jurisdictional challenge and respondent has provided no legal authority requiring dismissal of appellant’s jurisdictional claim as untimely, we decline to dismiss the claim.

II.

Respondent next contends that appellant’s claim should be dismissed as moot and that any opinion would be merely advisory. Respondent argues that appellant seeks what he already has, i.e., a guilty plea and sentence, and that any opinion by this court would, therefore, be advisory. Respondent points to appellant’s plea for relief, which asks this court to “grant [ ] appellant’s petition for postconviction relief, and remand this case to the district court, with directions, to vacate his conviction and sentence, and allow [ ] appellant to reenter a plea of guilty and be re-sentenced by a duly appointed qualified district court judge.”

The determination of whether a cause of action is moot presents a question of law. Isaacs v. Am. Iron & Steel Co., 690 N.W.2d 373, 376 (Minn.App.2004), review denied (Minn. Apr. 19, 2005). An issue is deemed to be moot and results in dismissal of an appeal if the court is unable to grant effectual relief. In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989). A court may not issue advisory opinions or decide cases merely to establish precedent. Id.

Here, appellant asserts that the judge who imposed upward sentencing departures on three charges was improperly assigned to .hear this ease. Because another judge may impose a different sentence, we cannot say that this court is unable to grant appellant effectual relief. We therefore conclude that the appeal is not moot and that we retain jurisdiction over appellant’s constitutional claim.

III.

Appellant argues that the assignment of Judge Hopper violated the Minnesota Constitution because Judge Hopper was not a “retired judge” within the meaning of article VI, section 10 of the Minnesota Constitution and applicable statutes. We disagree.

A petition for postconviction relief is a collateral attack on a judgment that carries a presumption of regularity and, therefore, cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (Minn.2002). This court will not disturb the decision of a postconviction court absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). Here, the denial of postconviction relief is based on the district court’s determination of the issues of law raised by appellant and its construction of applicable constitutional provisions and statutes, both of which we review de novo. Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 283 (Minn.2004) (constitutional interpretation); Brookfield Trade Ctr. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998) (statutory construction).

Article VI, section 10 of the Minnesota Constitution states: “As provided by law a retired judge may be assigned to hear and decide any cause over which the court to which he is assigned has jurisdiction.” The constitution also provides that “[t]he legislature may provide by law for retirement of all judges and for the extension of the term of any judge....” Minn. Const, art. VI, § 9. We turn to Minnesota statutes to determine when a judge qualifies as “retired” “as provided by law” for appointment purposes.

The Minnesota legislature has adopted several laws concerning the appointment of retired judges to hear cases. Minn. Stat. § 484.61 (2004) provides the chief justice with the authority to appoint retired district court judges:

Upon the retirement of any judge of the district court under the provisions of chapter 490,.the retired judge may be appointed and assigned to hear any cause properly assignable to a judge of the district court and act thereon with full powers of' a judge of the district court pursuant to section 2.724 with the retired judge’s consent.

MinmStat. § 2.724, subd. 3(b) (2004), provides:

A judge who has been elected to office and who has retired as a judge in good standing and is not practicing law may also be appointed to serve as judge of any court except the Supreme Court. A retired judge acting under this paragraph will receive pay and expenses in the amount established by the Supreme Court.

Retired Judge

Relying on the legislative history of section 2.724, subd. 3(b), appellant first argues that Judge Hopper does not qualify as a “retired judge” under section 484.61 or 2.724 because he resigned from his office. Minn.Stat. § 2.724, subd. 3, states that a retired judge is a person “who has retired as a judge in good standing[.]” The parties agree that when the bill proposing the amendment of section 2.724 was introduced, section 3(b) authorized the appointment of judges who had “resigned.” The word “resigned” was changed to “retired” when the bill was passed into law. Based on the substitution of the words, appellant argues that the legislature intended to preclude the appointment of judges who resigned from their offices. Respondent, on the other hand, argues that the substitution of words is meaningless because the words “resigned” and “retired” are not contradictory or mutually exclusive.

The relevant statutes do not define the word “retired.” Accordingly, the word must be construed according to its ordinary meaning. MinmStat. § 645.08(1) (2004); Conaway v. St. Louis County, 702 N.W.2d 779, 783 (Minn.App.2005) (stating that courts should “give words their ordinary meaning unless the legislature has specifically provided otherwise” or unless “the ordinary meaning” “would be inconsistent with legislative intent.”). The common and ordinary meaning of the word “retired” includes a person who has “[withdrawn from one’s occupation, business, or office; having finished one’s active working life.” The American Heritage Dictionary 1488 (4th ed.2000). Judge Hopper withdrew from his office as a district court judge. He was therefore “retired” within the ordinary meaning of the word “retired.” Consequently, we conclude that Judge Hopper “retired” within the meaning of Minn.Stat. § 2.724. Because the word “retired” is not ambiguous, we need not resort to legislative history to interpret its meaning.

Appellant next argues that Judge Hopper is not “retired” within the meaning of section 484.61 because he did not retire “under the provisions of chapter 490.” The crux of appellant’s argument is that a judge cannot qualify as “retired judge” unless that person is actually receiving annuity benefits. Appellant suggests that until annuity benefits are being paid out to the retired judge, there is no retirement under the provisions of chapter 490.

In 1973, the legislature adopted the Uniform Retirement and Survivors’ Annuities for Judges Act (the Act). See Minn.Stat. §§ 490.021-133 (2004). Chapter 490 sets forth, inter alia, the eligibility requirements for retirement benefits for a judge who elects to retire under the provisions of the statute. Under the Act, one can retire on certain retirement dates, which are “normal” (age 65), “early” (age 60), and “mandatory” (age 70) retirement. Minn. Stat. § 490.121, subds. 8, 10, 12 (2004). But the Act does not determine when a judge becomes a “retired judge” for assignment purposes. See Minn.Stat. § 490.021-133; see also Saetre v. State, 398 N.W.2d 538, 541 (Minn.1986) (discussing chapter 490 in reference to mandatory retirement of judges). The Act provides that after completion of a minimum of five years of service as a judge, a judge is entitled to receive annuity benefits. Minn. Stat. § 490.124, subd. 2 (2004). But payment of those benefits can be deferred until early retirement, even if a judge terminates his or her service before reaching the age of a retirement date. Id., subd. 5(a) (2004) (“Any benefit to which a judge is entitled under this section may be deferred until early or normal retirement date, notwithstanding termination of such judge’s service prior thereto.”). The legislature thus recognized that the “termination” of a judge’s service on the bench is distinct from the date on which a judge opts to begin receiving benefits.

Based on our reading of Minn.Stat. § 484.61, we conclude that the statutory requirement of a retirement “under the provisions of chapter 490” is satisfied by a judge who has served as a judge for a minimum of five years and is qualified to receive retirement benefits at the early or normal retirement date. Here, Judge Hopper served on the bench for a minimum of five years and was entitled to a retirement annuity at his “normal or early retirement date.” Minn.Stat. § 490.124, subd. 2. Therefore, Judge Hopper met the requirement of a “retired judge” under Minn.Stat. § 484.61.

Two reasons support our conclusion. First, we discern no legislative intent in chapter 490 that to qualify as a retired judge one must be actually receiving annuity benefits. Clearly, if the legislature intended to place such a restriction on the appointment of a retired judge, it could have done so.

Second, we conclude that the legislature intended, through various options set forth in chapter 490, to permit judges who have terminated their active service to elect between a variety of retirement dates on which to begin receiving benefits, without making any attempt to limit their eligibility for appointment by the chief justice as retired judges. See Minn.Stat. § 645.16 (2004) (stating that “[t]he object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.”).

Minnesota Retirement System

Appellant further argués that the Minnesota State Retirement System (MSRS) defines “retired judge.” Minn. Stat. § 352.01, subds. 19, 20 (2004). But this statutory definition does not define “retired judge” for the purposes of article VI, section 10 of the Minnesota Constitution. The MSRS defines “retired employee” as a person who is entitled to receive an accrued annuity and “retirement” as the time after an accrued annuity becomes payable. Id. Like chapter 490, the MSRS statute recognizes that a state employee’s service may terminate long before the employee elects to receive or is entitled to receive annuity payments, in which event a covered employee with the requisite years of service may be entitled to a deferred retirement annuity. Minn.Stat. § 352.22, subd. 3. The statute focuses on the “time after” the payment of annuities begins. But the MSRS statute makes no attempt to determine whether one who has left state employment and has deferred the receipt of benefits would be considered “retired.” Thus, the MSRS statute does not answer the question of who is a “retired judge” under article VI, section 10 of the Minnesota Constitution.

Resignation of a Judge

Finally, appellant argues that the governor’s use of the word “resignation” in his letter to Judge Hopper precludes any characterization of Judge Hopper as a “retired judge” eligible for appointment by the chief justice. But appellant acknowledges that the governor also directed the “retirement” of Judge Hopper under chapter 490. We conclude that the terms “resign” and “retire” are not contradictory or mutually exclusive. Resignation is a means of withdrawing from a position or line of work, and thereby accomplishing retirement. Judge Hopper’s termination of service qualified him as retired under chapter 490. The governor’s use of the term “resignation” does not compel a contrary legal conclusion.

IV.

Respondent argues that even if Judge Hopper’s assignment violated the Minnesota Constitution, the appointment is lawful under the de facto judge doctrine. A “de facto judge” is a judge who operates under color of law but whose authority is procedurally defective. Harris, 667 N.W.2d at 920 n. 5 (quotation omitted). The supreme court explained:

Typically, we have applied the de facto judge doctrine when there is a technical defect in the judge’s statutory authority. For example, we have found a judge to have de facto authority where he signed findings in a case just after his successor had taken the oath of office, ... and we have upheld the de facto authority of a justice of the peace where he filed his bond and oath with the village clerk of the county seat, rather-than with the clerk of court[.]

Id. (citations omitted). Because we conclude that Judge Hopper was a retired judge, that his appointment did not violate the Minnesota Constitution, and that there was no defect in his authority to preside over the matter involving appellant, we need not decide this issue.

DECISION

Because Judge Hopper, who terminated his active service and qualified for a retirement annuity as a district court judge after more than five years of service, was a “retired judge” eligible for appointment by the chief justice “as provided by law,” his appointment did not violate article VI, section 10 of the Minnesota Constitution, and the district court did not abuse its discretion by denying appellant’s postconviction petition.

Affirmed.

      . Judicial officers were lawyers appointed by the chief judge of a judicial district and served at the pleasure of the county court. Harris, 667 N.W.2d at 914. They heard and tried such matters as assigned to them by a county court judge. Id.

      . Appellant does not challenge the other requirements of the statute, i.e., that Judge Hopper was a judge "elected to office” and "is not practicing law.” Consequently, we do not address those requirements.


source: Caselaw Access Project

author: WILLIS, Judge.

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. J.R.A., Respondent.
    Nos. A05-967, A05-968.
    Court of Appeals of Minnesota.
    May 24, 2006.

      Rolf A. Sponheim, Assistant City Attorney, City of Minnetonka, Minnetonka, MN, for appellant.
    Tina Hudak Appleby, Marsh J. Halberg, Halberg, Rothstein, Appleby & Nelson, Bloomington, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; KALITOWSKI, Judge; and STONEBURNER, Judge.
   OPINION

WILLIS, Judge.

This is an appeal from two orders granting respondent’s petition for expungement of records in four criminal cases. Appellant State of Minnesota argues that the district court abused its discretion by granting the expungement of all criminal records in two cases that .were dismissed in exchange for respondent’s guilty pleas in two other cases. The state also argues that the district court abused its discretion by granting the expungement of judicial records in the two cases in which respondent pleaded guilty. Because we conclude that the district court did not abuse its discretion, we affirm.

FACTS

In September 2000, J.A., the then-estranged wife of respondent J.R.A., obtained an order for protection (OFP) against respondent that prohibited him from contacting her except in the case of a medical emergency involving their minor child. Oyer the following months, respondent violated the OFP on at least four separate, occasions.

In October 2000, J.A. reported to Minne-tonka police that respondent had telephoned her several times and called her an inappropriate name. The state filed a complaint that charged respondent with one count of violation of a protection order. In December 2000, J.A. reported to Minne-tonka police that respondent had repeatedly telephoned her’ and that he had yelled at her, called her names, and threatened to kill her. The state filed a complaint that charged respondent with one count of violation of a protection order, two counts of harassment, and one count of terroristic threats. In January 2001, J.A. reported to Minnetonka police that respondent had telephoned her twice and that during one call he had .called her names. The state filed a complaint that charged respondent with one count of violation of a protection order and one count of harassing telephone calls. And in February 2001, J.A. reported to Minnetonka police that respondent telephoned her repeatedly that day. The state filed ■ a complaint that charged respondent with one count of violation of a protection order.

In March 2001, as part of a plea agreement, respondent pleaded guilty to two counts of violation of a protection order, arising from the October 2000 and December 2000 incidents. In exchange, the state dismissed the remaining charges arising from the December 2000 incident and all charges arising from the January 2001 and February 2001 incidents.

In January 2005, respondent petitioned for expungement of the records of all four criminal cases, stating that he sought ex-pungement for both employment and personal reasons. J.A. submitted an affidavit and a letter in support of the petition. In March 2005, the district court held a hearing on respondent’s petition and subsequently granted expungement in all four cases, ordering that all records relating to the two dismissed cases be sealed under Minn.Stat. § 609A.02, subd. 3 (2004), and that the judicial records relating to the two cases that resulted in convictions be sealed. The state appeals.

ISSUES

1. Did the district court abuse its discretion by ordering the statutory expungement of all criminal records in the two cases that were dismissed in exchange for respondent’s guilty pleas in two other cases?

2. Did the district court, in exercising its inherent authority, abuse its discretion by granting the expungement of judicial records in the two cases in which respondent pleaded guilty?

ANALYSIS

This court reviews a district court’s decision to grant an expungement under an abuse-of-discretion standard. State v. Davisson, 624 N.W.2d 292, 296 (Minn.App. 2001), review denied (Minn. May 15, 2001). There are two bases of authority for a district court to order the expungement of a petitioner’s criminal records: Minn.Stat. ch. 609A (2004) and the court’s inherent expungement power. State v. Ambaye, 616 N.W.2d 256, 257 (Minn.2000).

Minn.Stat. § 609A.01 provides for ex-pungement in certain circumstances through the sealing of criminal records and by prohibiting their disclosure without a court order. A petition for expungement under the statute may only be granted “if all pending actions or proceedings were resolved in favor of the petitioner.” Minn.Stat. § 609A.02, subd. 3. Expungement under chapter 609A applies to criminal records held by executive-branch law-enforcement agencies as well as to judicial records. Minn.Stat. §§ 13.82 (2004); 609A.01; 609A.02, subd. 3.

A district court also has inherent power to expunge criminal records when: (1) “the petitioner’s constitutional rights may be seriously infringed by retention of his records,” or (2) although a petitioner’s constitutional rights are not implicated, the district court finds that “expungement will yield a benefit to the petitioner commensurate with the disadvantages to the public from the elimination of the record and the burden on the court in issuing, enforcing and monitoring an expungement order.” Ambaye, 616 N.W.2d at 258 (quotations omitted). Expungement under the district court’s inherent authority does not apply to criminal records maintained by another branch of government “absent evidence that executive agents abused their discretion in the performance of a governmental function.” State v. T.M.B., 590 N.W.2d 809, 812 (Minn.App.1999), review denied (Minn. June 16, 1999).

Here, the district court used its statutory authority to expunge all criminal records in the two cases against respondent that were dismissed and used its inherent authority to expunge judicial records in the two cases in which respondent pleaded guilty.

I.

The state argues that the district court abused its discretion by expunging all criminal records in the two dismissed cases, asserting that the district court erred by concluding that all pending actions and proceedings were resolved in respondent’s favor. The state concedes that “the two dismissed files were resolved in [respondent’s] favor” but argues that the “plain language” of the phrase “all pending actions or proceedings” in Minn.Stat. § 609A.02, subd. 3, requires that this court “look beyond the disposition of the particular case in which a petitioner seeks expungement and look at the disposition of all pending cases.” The state asserts that the statutory phrase “all pending actions or proceedings” refers to all four cases against respondent and that because respondent pleaded guilty in two cases in exchange for the dismissal of the remaining two, all pending actions and proceedings were not resolved in respondent’s favor. The state provides no authority other than the language of Minn. Stat. § 609A.02, subd. 3, to support this conclusion. Respondent argues that the phrase “all pending actions or proceedings” refers to “multiple charges stemming from a single arrest or incident — not multiple charges from multiple arrests.”

Statutory interpretation is a question of law, which this court reviews de novo. See State v. Stevenson, 656 N.W.2d 235, 238 (Minn.2003). When interpreting a statute, the role of this court is to determine the legislature’s intent. See id. Appellate courts must first decide whether the statute’s language, on its.face, is clear or ambiguous. Id. If a statute is unambiguous, a court must apply its plain meaning. State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn.1996). A statute is. ambiguous if its language is subject to more than one reasonable interpretation. Stevenson, 656 N.W.2d at 238.

Minn.Stat. § 609A.02, subd. 3, provides that

[a] petition may be filed under section 609A.03 to seal all records relating to an arrest, indictment or information, trial, or verdict if the records are not subject to section 299C.11, paragraph (b), and if all pending actions or proceedings were resolved in favor of the petitioner.

(Emphasis added.) Here, the phrase “all pending actions or proceedings” is not defined in chapter 609A and is subject to more than one reasonable interpretation: the state’s broad interpretation that the phrase refers to all criminal cases that were pending at the same time as the case for which a petitioner seeks expungement and appellant’s more narrow interpretation that the phrase refers to all charges arising from the same incident on which the case in which a petitioner seeks expungement is based. Therefore, we conclude that the phrase is ambiguous.

It is possible that the legislature included the phrase with the intention of prohibiting expungements in cases that were dismissed as part of a plea agreement. But the statute does not specifically so provide, and adoption of the state’s broad interpretation of the phrase would require that a petitioner be denied ex-pungement in a case that was dismissed in one county on the ground that at the same time an unrelated ease was pending against the petitioner in another county. We conclude that this is an unreasonable result that the legislature did not intend when it enacted section 609A.02. See Wegener v. Comm’r of Revenue, 505 N.W.2d 612, 617 (Minn.1993) (providing that courts must “reject a construction that leads to absurd results or unreasonable results”). And although all four cases here were part of a single plea agreement and are in the same county, nothing in section 609A.02, subd. 3, limits the application of the phrase “all pending actions or proceedings” to cases that were part of a single plea agreement or to cases that were pending in the same county as the case in which a petitioner seeks expungement. And this court cannot supply what the legislature has deliberately omitted or inadvertently overlooked. State v. Jones, 587 N.W.2d 854, 856 (Minn.App.1999), review denied (Minn. Mar. 16, 1999). Therefore, we conclude that the phrase “all pending actions or proceedings” refers to multiple charges based on the same incident and not to multiple charges based on separate incidents that were then pending.

The parties agree that all charges in the two dismissed cases were resolved in respondent’s favor. Because there was no admission or finding of guilt in the two dismissed cases, the dismissals were resolutions of the cases in favor of respondent, regardless of the fact that the dismissals were part of a negotiated plea agreement. See State v. C.P.H., 707 N.W.2d 699, 704 (Minn.App.2006) (stating that when determining whether a case was resolved in favor of petitioner, “the existence of an admission or finding of guilt is the deciding factor”).

The state argues, in the alternative, that “[e]ven if all pending actions or proceedings had been resolved in [respondent’s] favor ... there is clear and convincing evidence that the interests of the public and the public safety outweigh the disadvantages to [respondent] of not sealing the record.” Minnesota statutes provide that when “all pending actions or proceedings” are resolved in a petitioner’s favor, the district court “shall grant the petition to seal the record unless the agency or jurisdiction whose records would be affected establishes by clear and convincing evidence that the interests of the public and public safety outweigh the disadvantages to the petitioner of not sealing the record.” Minn.Stat. § 609A.03, subd. 5(b).

The state argues that the Minnesota legislature has expressed in Minn.Stat. § 634.20 (2004) and Minn.Stat. § 609.749, subd. 5(a) (2004), a “public policy in favor of retaining records of dismissed domestic abuse cases.” Minn.Stat. § 634.20 provides for the admissibility of evidence of similar conduct, including evidence of prior domestic abuse, in domestic-abuse cases, and Minn.Stat. § 609.749, subd. 5(a), provides that a person who engages in a pattern of harassing conduct of a single victim is guilty of a felony. But Minn.Stat. § 609A.03, subd. 7(b), addresses the state’s concerns by providing that “[u]pon request by law enforcement, prosecution, or corrections authorities, an agency or jurisdiction subject to an expungement order shall inform the requester of the existence of a sealed record and of the right to obtain access to it.” See also Minn.Stat. § 609A.01 (providing for the sealing of expunged criminal records and explicitly not authorizing “the destruction of records or their return to the subject of the records”). Also, all four cases against respondent were for conduct that occurred more than five years ago, so none of them, including the two dismissed cases, could be used to form part of a pattern of harassing conduct. See Minn.Stat. § 609.749, subd. 5(b) (2004) (stating that “pattern of harassing conduct” may include two or more OFP violations within a five-year period).

The state also argues that respondent’s interests in sealing the records in the two dismissed cases is “speculative, indefinite, and inadequate.” In his expungement petition, respondent states that he is seeking expungements in all four cases for employment and personal reasons. Specifically, respondent states that he is an executive with an investment-management firm and that he is subject to background checks by potential clients. Respondent also stated that he was going to be required to submit to a background check as part of his employer’s registration with the securities and exchange commission (SEC) and that he was concerned that his criminal record might negatively affect his employer’s SEC registration and respondent’s ability to acquire future clients. Respondent also states that he is seeking the expungements to “further the healing process [between his former wife and him] and to finally and completely put behind [them] the improper acts committed during [their] divorce.” In addition, J.A., the sole victim in these cases, submitted an affidavit and a letter supporting respondent’s petition for ex-pungement. Based on this record, the district court acted within its discretion when it determined that the state did not show that the interests of public safety outweighed the disadvantages to respondent if his petition were denied.

Therefore, we conclude that the district court did not abuse its discretion by granting an expungement of all criminal records in each of respondent’s dismissed cases.

II.

The state argues that the district court abused its discretion by expunging judicial records in the two cases in which respondent pleaded guilty because respondent did not demonstrate that expungement of the judicial records of these'two cases “will yield a benefit to [respondent] commensurate with the disadvantages to the public from the elimination of the record[s] and the burden on the court in issuing, enforcing, and monitoring an ex-pungement order.” The state argues that the records of these two cases could be used (1) to enhance “future order for protection violations for a period of up to five years following [respondent’s] discharge from sentence for these offenses” under Minn.Stat. § 518B.01, subd. 14(e), (d)(1) (2004), and (2) to enhance harassment and stalking charges “for a period of ten years following [respondent’s] discharge from sentence” for these offenses under Minn. Stat. § 609.749, subd. 4 (2004).

Here, the record supports the district court’s findings that respondent “provided evidence of professional and personal considerations that justify sealing court records,” that he “demonstrated to the Court that he has been rehabilitated,” and that the sole victim, respondent’s wife, was “in full support of expungement.” See Schultz, 676 N.W.2d at 341 (stating that this court will not set aside a district court’s findings unless they are clearly erroneous and not supported by the record). We therefore conclude that the district court did not abuse its discretion by exercising its inherent authority to grant the expungement of the judicial records in the two cases in which respondent pleaded guilty. Cf id. (granting expungement when petitioner was rehabilitated, had no new criminal incidents, and had experienced employment and housing problems because of his criminal record).

DECISION

Because “all pending actions or proceedings” were resolved in respondent’s favor in the two cases which were dismissed as part of a plea agreement and because the state failed to establish by clear-and-convincing evidence that the interests of the public and public safety outweighed the disadvantages to respondent of not sealing the records, we conclude that the district court did not abuse its discretion by granting the expungement of all criminal records in those two cases. And because the record supports the district court’s finding that expungement of judicial records in the two cases in which respondent pleaded guilty will yield a benefit to respondent commensurate with the disadvantages to the public from the elimination of the records and the burden on the district court in issuing, enforcing, and monitoring the expungement order, we conclude that the district court did not abuse its discretion by granting the expungement.

Affirmed.


author: HALBROOKS, Judge. SHUMAKER, Judge

text:
    STATE of Minnesota, Respondent, v. William Peter LUSHENKO, Appellant.
    No. A05-819.
    Court of Appeals of Minnesota.
    May 30, 2006.

      Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, St. Paul, MN and Timothy R. Faver, Beltrami County Attorney, Bemidji, MN, for respondent.
    John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by HALBROOKS, Presiding Judge; LANSING, Judge; and SHUMAKER, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s evidentiary ruling on the admissibility of the show-up identification procedure and the district court’s authority to conduct a bifurcated trial on the issue of whether appellant is a career offender under the statute. Although we conclude that the show-up identification was unnecessarily suggestive, because it was reliable and because the district court had the inherent authority to craft a bifurcated sentencing procedure, we affirm.

FACTS

When Brian Brunetta arrived at his house around noon on June 3, 2004, he observed an unfamiliar blue Chevrolet Blazer parked in his driveway. As Brun-etta approached the vehicle, which was still running, a man came from around the back of Brunetta’s house and asked Brun-etta if he would like to purchase an aerial photo of his home. Brunetta declined the offer. The man then asked Brunetta if he knew anyone who would want such a photo; when Brunetta said he did not, the man left.

After the man left and Brunetta’s wife arrived home, they realized that their home had been burglarized and called the police. Brunetta gave the responding officer a physical description of the man on his driveway — 6'1" and heavyset — as well as a description of the vehicle and its license-plate number. With that information, the officer identified the registered owner of the vehicle, appellant William Lushenko. The officer obtained appellant’s driver’s-license photo and showed it to Brunetta. Brunetta stated that he was 90% positive that appellant was the man he had seen on his driveway.

Respondent State of Minnesota charged appellant with second-degree burglary. At the pretrial omnibus proceeding, appellant moved to suppress evidence of the show-up identification on the ground that the identification procedure was both unnecessarily suggestive and unreliable. The district court denied appellant’s motion, finding the show-up to be unnecessarily suggestive, but nonetheless reliable.

A jury found appellant guilty of second-degree burglary. Following the jury’s verdict and over appellant’s objection, the district court allowed the state to present evidence regarding whether appellant was a career offender — namely, whether his current offense was part of a pattern of criminal conduct. The state introduced evidence of appellant’s seven prior felony convictions in the preceding 15 years. Appellant then had an opportunity to respond to the state’s evidence. At the conclusion of the evidence and counsels’ final arguments, the district court submitted a special interrogatory to the jury, asking whether it found that appellant’s current conviction was part of a pattern of criminal conduct and instructed the jury that in order to answer “Yes,” it must find that fact to have been proven beyond a reasonable doubt. The jury answered “Yes” to the special interrogatory, and the district court imposed the statutory maximum sentence of 120 months, executed. This appeal follows.

ISSUES

1. Did the district court abuse its discretion by admitting evidence of the show-up identification procedure?

2. Did the district court err by conducting a bifurcated trial?

ANALYSIS

I.

“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn.2003) (citation omitted). But if “the facts are not in dispute and the [district] court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.” State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).

When determining whether a pretrial identification must be suppressed, we apply a two-part test. The first inquiry focuses on whether the procedure was unnecessarily suggestive....
If the procedure is found to be unnecessarily suggestive, the court must then determine under the totality of the circumstances whether the identification created a very substantial likelihood of irreparable misidentification.

Id. (citations and quotations omitted); see also State v. Ostrem, 535 N.W.2d 916, 921 (Minn.1995) (noting same test). Error in admission of tainted pretrial identification “does not require a new trial if the state can show beyond a reasonable doubt that the error was harmless.” State v. Jones, 556 N.W.2d 903, 913 (Minn.1996).

Incorporated into the first prong “is ‘whether the defendant was unfairly singled out for identification’ ” or “whether the procedure used by the police influenced the witness identification of the defendant.” Taylor, 594 N.W.2d at 161 (emphasis omitted) (quoting Ostrem, 535 N.W.2d at 921). The supreme court has held that “one-person show-up[s are] not unnecessarily suggestive per se.” Id. at 161-62. Here, the district court determined that the show-up identification procedure used by the police was unnecessarily suggestive because the police showed only one photo — that of appellant — to Brunetta. See State v. Marhoun, 323 N.W.2d 729, 733 (Minn.1982) (stating that when police show a photo of one suspect to witnesses the procedure is suggestive). We agree.

Under the second prong, courts look at whether, under the totality of the circumstances, there is a substantial likelihood for an irreparable misidentification. Taylor, 594 N.W.2d at 161. Thus, even where a suggestive procedure is employed, if the “witness’ identification has an adequate independent origin, it is considered to be reliable.” Id. In order to determine reliability, the Minnesota Supreme Court adopted the five-factor test articulated by the United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). State v. Bellcourt, 312 Minn. 263, 264, 251 N.W.2d 631, 633 (1977).

The five factors are:

1. The opportunity of the witness to view the criminal at the time of the crime;
2. The witness’ degree of attention;
3. The accuracy of the witness’ prior description of the criminal;
4. The level of certainty demonstrated by the witness at the photo display;
5. The time between the crime and the confrontation.

Ostrem, 535 N.W.2d at 921.

1. Opportunity to view the criminal

Here, the district court found that Brunetta had an adequate opportunity to view appellant in part because the two engaged in a conversation. When Brunetta arrived home, a man appeared from the back of the house and asked Brunetta if he wanted to, purchase an aerial photo of his home. When Brunetta declined, the man asked him if he knew anyone who might like one. Brunetta again said he did not, and the man got into his vehicle and drove away. While it was not a lengthy exchange, Brunetta had a good opportunity to view the man in broad daylight as he carried on a conversation with him.

2. Degree of attention

The district court found that Brunetta’s degree of attention was heightened by the fact that he arrived home to find a strange vehicle parked, but still running, in his driveway. This made Brunetta suspicious. After speaking with the man, who asked a strange question, Brunetta was sufficiently disbelieving of the man’s explanation for his presence that Brunetta took down his license-plate number.

3. Accuracy of prior description

The district court stated that Brunetta gave the police a description of the vehicle that included its make, color, and license-plate number, as well as the man’s physical description. Appellant argues that the physical description given was merely a general description but fails to address the fact that the description matched him. Appellant also fails to acknowledge the specificity and accuracy of the vehicle description.

4. Level of certainty

The district court found that Brunetta was “90% certain the photo was the person he saw in his driveway.” This fact is supported by appellant’s memorandum in support of his motion to suppress where he states that Brunetta made a positive identification and by the state’s memorandum, which states that Brunetta was 90% positive.

5. Elapsed time between crime and confrontation

It is undisputed that Brunetta identified appellant as the man on his driveway within three hours after his conversation with him.

Based on its analysis of the Biggers factors, the district court determined that there was little likelihood of misidentification and that Brunetta’s identification had adequate independent origin to be admissible. Having reviewed the record, we conclude that the district court did not err in its decision to admit evidence of the show-up identification. While the initial identification procedure, consisting of showing only one photograph to Brunetta, was unnecessarily suggestive, the identification did not create a substantial likelihood of irreparable misidentification under the totality of the circumstances.

II.

Appellant next challenges the district court’s decision to conduct a bifurcated trial and to submit the issue of whether appellant’s current offense is part of a pattern of criminal conduct to the same jury following its verdict convicting appellant of second-degree burglary. Acknowledging that Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), mandates a jury determination of this fact in order to depart from the presumptive guidelines sentence, appellant argues that the district court lacked both statutory and inherent authority to bifurcate the proceedings.

The district court sentenced appellant under Minn.Stat. § 609.1095, subd. 4 (2002), which provides:

Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.[]

The supreme court has held that the determination of a pattern of criminal conduct for use in sentencing requires a factual finding that goes beyond simply counting the number of prior convictions, and, therefore, the imposition of an enhanced sentence based on a district court’s finding of a pattern of criminal conduct violates a defendant’s Sixth Amendment right to a trial by jury. State v. Henderson, 706 N.W.2d 758, 762 (Minn. 2005). It is undisputed that the district court lacked statutory authority to submit the pattern finding to a jury. Accordingly, the issue before us is whether the district court possessed inherent authority to bifurcate appellant’s trial and submit the issue of pattern to the jury.

In State v. Shattuck, the supreme court examined whether it had inherent authority to authorize the use of sentencing juries and bifurcated-trial proceedings to remedy a Blakely violation. 704 N.W.2d 131, 147 (Minn.2005). The court stated that it possessed inherent authority, arising from its judicial powers, to regulate court procedure to apply the requirements of Blakely to sentencing in Minnesota. Id. at 148. But the court observed that it did not possess the authority to mandate sentene-ing-procedure requirements or “to engraft sentencing-jury or bifurcated-trial requirements onto the Sentencing Guidelines,” id., stating, “We have emphasized that while we can strike a severable provision of a law if found to be unconstitutional, ‘we cannot add language to a statute in order to render it constitutionally permissible.’ ” Id. at 143 (quoting Chapman v. Comm’r of Revenue, 651 N.W.2d 825, 836 (Minn. 2002)); see also Henderson, 706 N.W.2d at 763 (stating that “[W]e declined to engraft onto the sentencing guidelines and sentencing statutes a requirement for sentencing juries or bifurcated trials, for to do so would require us to rewrite those guidelines and statutes.”) (emphasis added).

Therefore, while the supreme court stated that its severance jurisprudence does not permit it to engraft sentencing-procedure requirements onto the guidelines, we do not understand the supreme court to be restricting the district court’s inherent authority to craft sentencing procedures. P)or example, if a district court exercised its inherent authority to conduct a bifurcated trial or impanel a sentencing jury, it is not establishing the requirement of bifurcated trials or sentencing juries in every case, but merely adopting the procedure in that individual case.

The supreme court’s statement regarding its severance jurisprudence refers only to its ability to require a remedy such as bifurcated trials or sentencing juries in order to make the guidelines constitutional. It did not refer to whether it has the ability to create constitutional sentencing procedures, as it clearly has the authority to do that. Shattuck, 704 N.W.2d at 148 (stating that “this court has the authority to establish procedures to apply the requirements of Apprendi and Blakely to sentencing in Minnesota”).

We recognize that there are differing views on this issue within this court. See State v. Hobbs, 713 N.W.2d 884 (Minn.App. 2006) (holding that the district court did not have statutory or inherent authority to submit to a jury the issue of dangerousness to public safety under Minn.Stat. § 609.1095, subd. 2 (2002)); State v. Mad dox, No. A05-339 (Minn.App. May 30, 2006). But we believe to be incorrect the argument that the district court erred by conducting a bifurcated trial because Shat-tuck labeled sentencing procedures as both judicial and legislative functions because it does not consider the distinction between crafting sentencing procedures and en-grafting sentencing requirements onto the Sentencing Guidelines.

We agree that altering the Sentencing Guidelines is a legislative function, as they were legislatively created. But it was within the court’s inherent authority and discretion to craft a bifurcated-trial procedure in the wake of Blakely before the legislature amended the guidelines, because sentencing “within the limits prescribed by the legislature is purely a judicial function.” State v. Olson, 325 N.W.2d 13, 18 (Minn.1982). Sentencing according to Blakely — permitting an upward departure only where a jury finds aggravating factors — is still sentencing “within the limits prescribed by the legislature” because the sentence is still within the statutory sentencing range. Therefore, we conclude that the supreme court in Shattuck affirmed the court’s inherent authority to craft sentencing procedures.

The legislature has since amended the sentencing-procedure statute, stating, in pertinent part:

Procedures in cases where state intends to seek an aggravated departure, (a) When the prosecutor provides reasonable notice under subdivision 4, the district court shall allow the state to prove beyond a reasonable doubt to a jury of 12 members the factors in support of the state’s request for an aggravated departure from the Sentencing Guidelines as provided in paragraph (b) or (c).
(c) The district court shall bifurcate the proceedings, or impanel a resentenc-ing jury, to allow for the production of evidence, argument, and deliberations on the existence of factors in support of an aggravated departure after the return of a guilty verdict when the evidence in support of an aggravated departure:
(1) includes evidence that is otherwise inadmissible at a trial on the elements of the offense; and
(2) would result in unfair prejudice to the defendant.

Minn.Stat. § 244.10, subd. 5 (Supp.2005) (emphasis added). Hence, the legislature has now provided for bifurcated trials, including sentencing juries on remand. The supreme court in Shattuck acknowledged this amendment to the statute when, on rehearing, it amended its opinion, stating:

We note that the legislature has recently enacted significant new requirements for aggravated sentencing departures, including sentencing juries and bifurcated trials, and that these changes apply both prospectively and to resentencing hearings. We express no opinion about these recent changes, and do not foreclose the district court from considering any constitutionally applicable and/or available laws on remand.

704 N.W.2d at 148 n. 17 (emphasis added) (citation omitted). The supreme court remanded for proceedings consistent with the opinion. Thus, if the parties in Shat-tuck chose to proceed with a resentencing hearing on remand, the district court had the authority to impanel a sentencing jury.

The supreme court then issued State v. Barker, holding that the mandatory-minimum sentencing provided by Minn.Stat. § 609.11 (2004) for possession of a firearm while committing certain offenses was “unconstitutional to the extent that it authorize[d] the district court to make an upward durational departure upon finding a sentencing factor without the aid of a jury or admission by the defendant.” 705 N.W.2d 768, 773 (Minn.2005). With respect to the appropriate remedy, the state in Barker argued that the supreme court should remand for resentencing, allowing the district court to impanel a jury to determine the sentencing factors. Id. at 775. The supreme court disagreed and remanded for imposition of the presumptive sentence because the legislature had not amended section 609.11. Id. at 776 (stating “the legislature did not simultaneously amend section 609.11, which continues to provide” for a court determination of facts supporting this charge).

In so doing, the supreme court recognized in Barker that the legislature had amended other mandatory-minimum statutes, including the career-offender statute: “Finally, several other mandatory minimum statutes were amended in 2005 to provide for sentencing juries and bifurcated trials at resentencing hearings. These changes affect ... Minn.Stat. § 609.1095 (2004) (relating to certain dangerous and career offenders). Noticeably absent from this list is section 609.11.” Id. (citations omitted). Because the legislature did not act to apply sentencing juries and bifurcated trials to section 609.11, the supreme court distinguished that section from the career-offender statute and others, leaving imposition of the presumptive sentence as the only appropriate remedy on remand. See id.

Following Barker, the supreme court applied Blakely to the career-offender statute and reversed and remanded with instructions to the district court to proceed with “resentencing consistent with Shat-tuck.” Henderson, 706 N.W.2d at 763. This remedy is consistent with the rationale distinguishing Minn.Stat. § 609.11 in Barker from the career-offender statute. If the legislature had not amended Minn. Stat. § 609.1095, the supreme court presumably would have reversed and remanded for imposition of the presumptive sentence, as it did in Barker. But because the legislature amended Minn.Stat. § 609.1095, on remand, the district court would be free to utilize Minn.Stat. § 244.10 and impanel a sentencing jury.

In an unpublished opinion subsequent to Shattuck, this court held that a district court did not exceed its authority by submitting an aggravating sentencing factor to the jury in a bifurcated trial after the jury rendered its verdict on the issue of guilt. State v. Chauvin, No. A05-726, 2005 WL 2979382, at *5 (Minn.App. Nov.8, 2005), review granted (Minn. Jan. 17, 2006). Like appellant here, Chauvin argued that the sentencing-jury proceeding initiated by the district court was not authorized by any rule or statute. Id. at *2. This court rejected that argument, relying on the language in Shattuck that recognizes the court’s authority to establish procedures in conformance with Blakely and noting the absurdity in limiting a district court’s ability to respond to a constitutional holding mandating a particular and familiar procedure — -a jury trial — because it was not preauthorized by the legislature. Id. at *3-*4 (stating that “[i]t would be curious indeed if a court, responding to a constitutional holding mandating a particular procedure, particularly one as familiar as a jury determination of a factual issue, could not implement that procedure until the legislature or a rules committee had cleared the way”). The Chauvin court noted the similarity between the bifurcated-sentencing procedure and the use of special interrogatories, which courts use to submit to juries issues that are relevant to the proper sentence. Id. at *3.

DECISION

We conclude that the district court did not abuse its discretion by admitting evidence of the show-up identification because it did not create a substantial likelihood of irreparable misidentifieation. We further conclude that the district court did not clearly err by conducting a bifurcated trial because it had inherent authority to craft a sentencing procedure in conformance with Blakely.

Affirmed.

SHUMAKER, Judge

(concurring specially).

I respectfully concur and write separately to note a burgeoning confusion in the caselaw as to what is and what is not covered by the Minnesota Sentencing Guidelines (MSG).

For nearly all felonies in Minnesota, the MSG provide presumptive sentences that are deemed appropriate, given severity levels and criminal histories. If sentences are to be executed, the MSG provide for discretionary ranges of sentences above and below the presumptive sentences. The presumptive sentences and discretionary ranges are disclosed on a sentencing-guidelines grid.

The MSG are conditionally mandatory: “Thus, the judge shall pronounce a sentence within the applicable range unless there exist identifiable, substantial, and compelling circumstances to support a sentence outside the range on the grid.” Minn. Sent. Guidelines .II.D (emphasis added). Except in an advisory sense, the MSG do not apply to sentences that are not within the guidelines grid: “A sentence outside the applicable range on the grid is a departure from the sentencing guidelines and is not controlled by the guidelines, but rather, is an exercise of judicial discretion constrained by case law and appellate review.” Id. (emphasis added).

The constraint of the caselaw in Appren-di and Blakely is clear. The discretion to sentence higher than the term provided in a sentencing grid is not exercisable unless a jury determines the fact that supports a higher term, or unless a defendant waives the right to a jury determination.

What we should not lose sight of in our sentencing jurisprudence is that departures never have been controlled by the guidelines but rather always have existed in the realm of inherent judicial authority. And although the legislature has, in some statutes, provided for sentencing departures, it has never purported to exclusively control the realm of sentencing departures. As the supreme court recognized in Shattuck, the judiciary has the inherent authority to regulate the procedures for applying Blakely. State v. Shattuck, 704 N.W.2d 131, 148 (Minn.2005). When the supreme court stated in Shattuck that it did not have the authority to “engraft sentencing-jury or bifurcated-trial requirements onto the Sentencing Guidelines,” it was simply recognizing that the MSG is a legislative creation and that the judiciary has no authority to alter legislation. Id. (emphasis added). But departures are not a legislative creation. It is clear that they operate outside the legislative creation known as the MSG, or at least did until the enactment of Minn.Stat. § 244.10, subd. 5 (Supp.2005).

I respectfully urge that State v. Maddox, No. A05-339 (Minn.App. May 30, 2006), fails to make the critical distinction between what is and what is not a legislative function regarding sentencing. Prior to the 2006 sentencing legislation, departures were expressly not within the domain of the legislatively created MSG but rather were clearly within the inherent powers of the judiciary. The instant departure is lodged squarely within judicial authority as constrained by Blakely. Thus, in my view, affirmance is compelled.

      . The legislature has since amended Minn. Stat. § 609.1095. See 2005 Minn. Laws ch. 136, art. 16 §§ 11, 12. The amended statute allows a district court judge to enhance a defendant's sentence if “the factfinder” determines that the current offense was part of a pattern of criminal conduct. Because the legislature specifically provided that the amended statute only "applies to crimes committed on or after [August 1, 2005],” the amended statute is not applicable to appellant's sentencing.


author: HALBROOKS, Judge.

text:
    Theodis KENNEDY, Relator, v. AMERICAN PAPER RECYCLING CORP., Respondent, Department of Employment and Economic Development, Respondent.
    No. A05-2142.
    Court of Appeals of Minnesota.
    May 30, 2006.
    Theodis Kennedy, St. Paul, MN, pro se relator.
    American Paper Recycling Corp., St. Paul, MN, respondent.
    Linda A. Holmes, Department of Employment and Economic Development, St. Paul, MN, for respondent Department of Employment and Economic Development.
    Considered and decided by HALBROOKS, Presiding Judge; LANSING, Judge; and SHUMAKER, Judge.
   OPINION

HALBROOKS, Judge.

Relator argues that the unemployment law judge (ULJ) improperly dismissed his appeal, which was postmarked 31 days after the department’s initial disqualification determination. Because the statutory appeal period was 30 days and the department lacked jurisdiction to hear an appeal that was postmarked after the appeal period, we affirm.

FACTS

Relator Theodis Kennedy applied for unemployment benefits after being discharged from his employment with respondent American Paper Recycling Corp. The department initially determined that relator was disqualified because the discharge was for employment misconduct. The mailing date of the determination of disqualification was July 20, 2005.

The determination of disqualification sent to relator included the department’s findings, the determination, and the notice of the right to appeal. In all capital letters, the right to appeal stated that the determination will become final unless an appeal is filed within 30 calendar days from the mailing date. The notice also provided the mailing address for the appeals office and stated that, if mailed, the postmark was determinative of filing by mail. Relator sent a letter postmarked August 20, 2005, requesting an appeal.

The ULJ issued an order dismissing the appeal on the ground that the appeal was not filed within the time period required by law. The order also contained the procedure to request reconsideration. Relator asked for reconsideration in a letter, stating that he had mailed his appeal to a different address “not knowing that they relocated to another address.” The ULJ found that the order of dismissal was factually and legally correct and affirmed the dismissal. Relator petitioned for a writ of certiorari.

ISSUE

Does the Department of Employment and Economic Development have jurisdiction over relator’s appeal of its determination that relator was discharged for employment misconduct when the appeal was postmarked one day after the appeal period had run?

ANALYSIS

An agency decision to dismiss an appeal as untimely is a question of law, which we review de novo. Stottler v. Meyers Printing Co., 602 N.W.2d 916, 918 (Minn.App.1999); see also Harms v. Oak Meadows, 619 N.W.2d 201, 202 (Minn. 2000) (affirming dismissal for failure to timely serve petition for writ of certiorari on unemployment appeal).

Upon issuing a determination of disqualification for unemployment benefits, the department is required to send a notice to the applicant and employer by mail or electronic transmission. Minn.Stat. § 268.101, subd. 2 (2004). A determination of disqualification “shall be final unless an appeal is filed by the applicant or ... employer within 30 calendar days after sending.” Id., subd. 2(e). Here, the department’s notice conspicuously stated that the mailing date was July 20, 2005, and, in all capital letters, set out the'parties’ right of appeal, consistent with the statute. The notice also provided the mailing address for the appeals office and stated that, if mailed, the postmark would be determinative of filing. Relator’s appeal letter was postmarked August 20, 2005, 31 calendar days after the mailing date of the determination of disqualification.

Under prior unemployment statutes with shorter appeal periods, the statutory time limitations for appealing disqualification determinations were held to be absolute and unambiguous. Semanko v. Dep’t of Employment Servs., 309 Minn. 425, 429-30, 244 N.W.2d 663, 666 (1976) (seven calendar days); Jackson v. Minn. Dep’t of Manpower Servs., 296 Minn. 500, 501, 207 N.W.2d 62, 63 (1973) (same). Not only is the 30-calendar-day time limitation clear in the current statute, but also its content was conspicuously placed and unambiguously explained in the disqualification notice sent to relator. Although relator alleges that his appeal was initially timely mailed but to an old address, there are no statutory provisions for extensions or exceptions to the appeal period. See Johnson v. Metro. Med. Ctr., 395 N.W.2d 380, 382 (Minn.App.1986) (concluding that prior unemployment law provided no basis to toll appeal period). When an appeal from a disqualification determination is untimely, it must be dismissed for lack of jurisdiction.

DECISION

The unemployment law judge properly dismissed relator’s appeal as untimely.

Affirmed.


author: COLLINS, Judge.

text:
    Chan LAM, et al., Relators, v. CITY OF ST. PAUL, Minnesota, et al., Respondents.
    No. A05-1706.
    Court of Appeals of Minnesota.
    May 30, 2006.

      Christopher K. Wachtler, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, MN, for relators.
    Manuel Cervantes, St. Paul City Attorney, Rachel Gunderson, Assistant City Attorney, St. Paul, MN, for respondents.
    Considered and decided by LANSING, Presiding Judge; STONEBURNER, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge.

In this certiorari appeal from a St. Paul City Council decision, relators contend that the city council’s denial of relators’ license applications should be reversed and that this court has jurisdiction to decide the dispute. Because the city council’s decision was quasi-judicial, jurisdiction is proper in this court. Because the land use permitted by the conditional-use permit was not extinguished just because certain business activity ceased, we reverse.

FACTS

Relators Chan Lam and Ha Tran, d/b/a Ha Auto Repair, challenge respondent St. Paul City Council’s denial of their applications for auto repair garage and second hand dealer-motor vehicle licenses.

The subject property has been used mainly for auto repair and sales since 1962. In 1994, having met the condition that he “obtains and maintains a dealership repair garage license ... not a general repair garage license,” the owner was granted a conditional-use permit (CUP) that allowed used-vehicle sales with auto repair as an accessory use.

In 1999, new owner R & B Automotive (R & B) obtained a general license to conduct an automobile-repair business on the property; R & B also sold cars there into 2001, but did not have the required license to do so. In late 2001, an inspector from Saint Paul’s Office of License, Inspections and Environmental Protection (LIEP) discovered that R & B was not in compliance with the 1994 CUP because while the auto-repair activity continued, used-vehicle sales had been discontinued. LIEP notified R & B of the discovered noncompliance, but because of a zoning moratorium that would have precluded R & B from seeking rezoning or obtaining a different CUP, LIEP took no enforcement action.

The city council rezoned the property in 2003 and again in 2004 to classifications that do not permit automobile sales or repair. In November 2004, an LIEP inspector again notified R & B that general auto repair was not permitted on the property, but R & B did nothing in response, and LIEP took no enforcement action thereafter.

In January 2005, relators contacted LIEP about the possibility of purchasing the property and operating an auto-repair business there. LIEP informed relators that LIEP could approve licenses for used-vehicle sales and auto repair as accessory to the autosales business as allowed by the CUP, but that relators would have to apply to the city planning commission for a legal-nonconforming-use permit if they wanted to use the property for general auto repair only. Relators elected to apply to LIEP for auto repair garage and second hand dealer-motor vehicle licenses and simultaneously purchased the property. LIEP recommended approval of the licenses based upon an inspector’s opinion that the uses permitted by the extant CUP became legal nonconforming uses at the time the property was rezoned.

Following a hearing on the licensing application, a legislative hearing officer sent the matter to the city council with a recommendation that the licenses be issued with 16 conditions recommended by LIEP and acceptable to relators. The city council referred the matter to an administrative-law judge (ALJ) to determine whether the CUP had expired. Supported by detailed findings and conclusions, the ALJ also recommended issuance of the licenses subject to the enumerated conditions.

When the matter came before the city council in July 2005, the council rejected the ALJ’s findings and recommendations, made its own findings, and denied the application for the licenses. In support of its decision, the council found that the property had not been used for auto sales either as of the date of the 2003 rezoning or at any time during the following 365 days. Noting that property must generally be used in conformance with current zoning classifications when a nonconforming use is discontinued for 365 days, St. Paul, Minn. Legislative Code § 62.106(g) (2005), the council concluded-that the only permitted uses of the property are those that conform to the current zoning classification. The city council therefore denied the application for licenses based on its conclusion that relators’ intended uses do not comply with the zoning code, and because no license may be granted without such compliance. This appeal follows.

ISSUES

I.- Does this court have subject-matter jurisdiction to review this matter?

II. Did the St. Paul City Council err by interpreting the zoning code as prohibiting approval of relators’ license application?

ANALYSIS

I.

Respondents argue that jurisdiction to decide this matter properly lies in the district court because the city council denied the license application pursuant to Minn.Stat,. §§ 462.357 and 462.3595 (2004). Minnesota law provides that “[a]ny person aggrieved by an ordinance, rule, regulation, decision or order of a governing body or board of adjustments and appeals acting pursuant to sections 462.351 to 462.364 may have such ordinance, rule, regulation, decision or order, reviewed by an appropriate remedy in the district court.” Minn.Stat. § 462.361. The city council tied the license denial to the 2003 rezoning decision. Rezoning decisions are generally considered legislative acts and are therefore not reviewable by this court on certio-rari, but only by a direct action in district court. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn.1981). Here, however, the licensing decision does not implicate an ordinance, rule, regulation, decision, or order from which an aggrieved party has recourse by virtue of section 462.361 in the district court. Although zoning is integral to the context, the gravamen of this dispute is denial of licenses, not a rezoning decision.

Discretionary licensing decisions made according to the process employed here may generally be considered quasi-judicial acts reviewable by this court through a writ of certiorari. See Pierce v. Otter Tail County, 524 N.W.2d 308, 309 (Minn.App.1994) (holding that a city council’s act is considered quasi-judicial if it is “the product or result of discretionary investigation, consideration, and evaluation of evidentiary facts”), review denied (Minn. Feb. 3, 1995). And it is clear that, unless otherwise provided by statute, a petition for a writ of certiorari is the exclusive procedure for reviewing an administrative agency’s quasi-judicial decision. Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn.1996). In such circumstances, this court has exclusive certiorari jurisdiction. Heideman v. Metro. Airports Comm’n, 555 N.W.2d 322, 324 (Minn.App.1996).

Because the city council’s licensing decision constitutes a quasi-judicial act, certio-rari jurisdiction in this court is proper.

II.

Relators challenge the city council’s denial of their applications for auto repair garage and second hand dealer-motor vehicle licenses. A city council is vested with broad discretion in determining whether or not to issue a license, and a court’s scope of review of such a determination is narrow. See Wajda v. City of Minneapolis, 310 Minn. 339, 343, 246 N.W.2d 455, 457 (1976) (addressing the denial of a liquor license). We reverse a decision of a city council only if it is “fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law.” See Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d 671, 675 (Minn.1990) (applying this standard to decision of a school board). If the city engaged in reasoned decision-making, we will affirm its decision even though the court may have reached another conclusion. See State by Khalifa v. Hennepin County, 420 N.W.2d 634, 639 (Minn.App.1988), review denied (Minn. May 4,1988).

The crux of this dispute is the city council’s interpretation of the zoning code as prohibiting the granting of relators’ requested licenses. As noted, the council found that the subject property had not been used for auto sales either as of the date of the 2003 rezoning or for 365 days immediately thereafter. Reasoning that the prior use of the property solely for auto repairs was not lawful because the CUP allowed auto repair only as an accessory to auto sales, the council concluded that relators’ intended uses are not in compliance with the zoning code because no lawful use of the property had been established within 365 days after the 2003 rezoning. The council concluded that the only permitted uses of the property are those that conform to the new zoning classification. The license application was therefore denied because the St. Paul code provides that “no new license shall be granted without full compliance with” all of St. Paul’s zoning requirements. St. Paul, Minn. Legislative Code § 310.03 (2005).

It is clear that by engaging in auto repair generally and not as an accessory to used-auto sales, R & B was not actually using the property consistently with the CUP within 365 days following the 2003 rezoning. Relators argue, and the ALJ determined, that R & B’s business activities became legal nonconforming uses upon rezoning. But the city council determined that there was no lawful use of the property at the time of rezoning.

While there is scant caselaw addressing the issue presented, we are guided by Hooper v. City of St. Paul, 353 N.W.2d 138, 141 (Minn.1984), which stands for the proposition that the failure to comply with licensing ordinances does not make the property’s use unlawful. In Hooper, the City of St. Paul argued that the use of a remodeled carriage house as a residence was unlawful when building permits for the house were not procured for either the original construction or the remodel. 353 N.W.2d at 141. There, the court noted that “[t]he general rule that only existing lawful uses are entitled to due process protection as nonconforming uses is directed primarily to the protection of uses established in compliance with then existing zoning classifications.” Id. The court therefore held that “[v]iolations of ordinances unrelated to land use planning do not render the type of use unlawful” and noted that the city’s remedy was enforcement of the building code, not “denying the owners the right to continue the existing two-family residential use of the property, a use permitted under the zoning code in effect when the use was established.” Id.

Likewise, it is inappropriate to conclude here that no lawful use of the land existed as of the date of rezoning because of the failure to maintain licenses for or actually engage in certain permitted activities. Such a conclusion fails to recognize that a permitted use exists independently of how the land is actually used and that a use does not cease to be permitted just because certain business activity is discontinued.

A nonconforming use is defined by code as “[a] lawful use existing on the effective date of adoption ... or amendment of this code but that is not now permitted in the district in which it is located.” St. Paul, Minn. Legislative Code § 60.215N (2005). The use of the land for auto repair as an accessory to auto sales became a nonconforming use when the 2003 zoning amendment took effect because even though no such business was then being conducted, that use existed by virtue of the CUP as a lawful use prior to the amendment of the zoning code.

And “[i]t is a fundamental principle of the law of real property that uses lawfully existing at the time of an adverse zoning change may continue to exist until they are removed or otherwise discontinued.” Hooper, 353 N.W.2d at 140. The St. Paul Legislative Code provides that when a permit’s conditions are not being complied with, the property owner is entitled to notice and a public hearing before the revocation or amendment of a permit. St. Paul, Minn. Legislative Code § 61.108 (2005). The CUP in this case was never so revoked or amended, and respondent admits that it did not expire. And the St. Paul Legislative Code does not provide for any automatic revocation, amendment, or expiration of a CUP. The uses permitted by the CUP therefore continue to exist.

DECISION

Certiorari jurisdiction in this court is proper because the city council’s licensing decision constitutes a quasi-judicial act. Although nonconforming-use activity was not actually conducted within 365 days following the 2003 rezoning, because the CUP was never revoked or otherwise extinguished, the use of the subject property for auto repair as an accessory to auto sales existed as a lawful use before the 2003 rezoning and thus became a nonconforming use upon that rezoning and continuing thereafter. Respondent St. Paul City Council’s decision to the contrary is therefore reversed, and we remand for action on relators’ license application consistent with this opinion.

Reversed and remanded.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.


author: MINGE, Judge.

text:
    Howard Wayne MILLER, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A05-952.
    Court of Appeals of Minnesota.
    June 6, 2006.

      Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Roseville, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Donald F. Ryan, Crow Wing-County Attorney, John J. Sausen, Assistant County Attorney, Brainerd, MN, for respondent.
    Considered and decided by TOUSSAINT, Chief Judge; MINGE, Judge; and ROSS, Judge.
   OPINION

MINGE, Judge.

Appellant challenges his sentence on the ground that Minn.Stat. § 609.109, subd. 7(a) (1998), did not allow the district court to impose consecutive terms of conditional release. Because we conclude that the statute’s text and purpose do not support the imposition of consecutive conditional release terms, we reverse and remand for resentencing.

FACTS

Appellant Howard Wayne Miller was charged with two counts of sexual misconduct based on separate incidents against the same victim, and a consolidated jury trial was conducted. Appellant was convicted of one count of first-degree criminal sexual conduct, in violation of Minn.Stat. § 609.342 (1996), and one count of second-degree criminal sexual conduct, in violation of Minn.Stat. § 609.343 (1996). The district court sentenced appellant to 480 months on the first-degree criminal sexual conduct conviction and 42 months on the second-degree criminal sexual conduct conviction and ordered that the sentences be served consecutively. Because appellant had previously been convicted of first-degree criminal sexual conduct, the district court imposed a ten-year period of conditional release, pursuant to Minn.Stat. § 609.109, subd. 7(a) (1998). The district court went on to impose a second consecutive ten-year period of conditional release for the second-degree criminal sexual conduct conviction because it was also an offense eligible for the period under Minn. Stat. § 609.109, subd. 7(a).

This court affirmed appellant’s convictions in State v. Miller, No. C9-99-2200, 2000 WL 1468172 (Minn.App. Oct.3, 2000). Appellant filed a postconviction petition in district court seeking a reduction of the sentence for first-degree criminal sexual conduct in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and to strike the second consecutive conditional release period. While the district court reduced the sentence for first-degree criminal sexual conduct from 480 to 360 months, it denied appellant’s motion to strike the second consecutive term of conditional release.

ISSUE

Are consecutive terms of conditional release authorized by Minn.Stat. § 609.109, subd. 7(a)?

ANALYSIS

A district court may at any time correct a sentence that is not authorized by law. Minn. R.Crim. P. 27.03, subd. 9. If the district court denies a motion under Rule 27.03, subd. 9, we will not reverse that decision if it represents a proper exercise of the district court’s discretion and the original sentence was authorized by law. State v. Stutelberg, 435 N.W.2d 632, 633-34 (Minn.App.1989) (quoting Fritz v. State, 284 N.W.2d 377, 386 (Minn.1979)). “[I]n the absence of statutory authorization, a trial court has no sentencing power.” State v. Koperski, 611 N.W.2d 569, 573 (Minn.App.2000).

The interpretation of sentencing statutes is a question of law, which this court reviews de novo. State v. Borrego, 661 N.W.2d 663, 666 (Minn.App.2003). “The object of all interpretation and construction of laws is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2004). If the statute uses plain and unambiguous language, the court should not engage in further construction, but look to the plain meaning of the statutory language. State v. Wukawitz, 662 N.W.2d 517, 525 (Minn.2003). If any ambiguity remains, “[p]enal statutes are to be construed strictly so that all reasonable doubt concerning legislative intent is resolved in favor of the defendant.” State v. Koenig, 666 N.W.2d 366, 372-73 (Minn.2003).

At the time of appellant’s sentencing, the conditional release statute provided that:

[W]hen a court sentences a person to prison for a violation of section 609.342, 609.343, 609.344, or 609.345, the court shall provide that after the person has completed the sentence imposed, the commissioner of corrections shall place the person on conditional release.... If the person was convicted for a violation of [section 609.342, 609.343, 609.344, or 609.345] ... the person shall be placed on conditional release for ten years, minus the time the person served on supervised release.

Minn.Stat. § 609.109, subd. 7(a) (1998).

The question of whether a court may impose consecutive terms of conditional release is one of first impression. The statute does not expressly provide for multiple or consecutive conditional release periods. In fact, as written, the text provides for only a single period of conditional release lasting either five or ten years. See id. As the Minnesota Supreme Court has observed, “[t]he plain meaning of the phrase, ‘the person shall be placed on conditional release for five years ... [or] ten years’ indicates that the period of conditional release must be either five or ten years, not more and not less.” Wukawitz, 662 N.W.2d at 525. Additionally, a second consecutive period of conditional release would violate the statutory direction to begin the conditional release term “after the person has completed the sentence imposed.” Minn.Stat. § 609.109, subd. 7(a); see also Wukawitz, 662 N.W.2d at 525 (conditional release “cannot begin pri- or to the inmate’s release from prison”). Consecutive sentences and periods of supervised release are aggregated. See Minn. Sent. Guidelines II.F.02. After serving consecutive sentences, a person can only be released from prison once. The statute requires conditional release to begin with release from prison, upon the completion of the sentence, not after a prior term of conditional release.

Even if we were to find the statute’s text ambiguous, the rule of lenity requires this court to construe the statute in favor of a criminal defendant. “This court cannot supply what the legislature has omitted.” Koperski, 611 N.W.2d at 573. Absent a clear statement by the legislature authorizing consecutive terms of conditional release, we will not read one into the statute when its plain text calls for only a single period.

The purpose served by the conditional release statute provides further support for this interpretation. Conditional release functions as “a term of supervision,” Wukawitz, 662 N.W.2d at 520 n. 2, or “probation,” State v. Humes, 581 N.W.2d 317, 319 n. 2 (Minn.1998). It places former prisoners under the close supervision of the commissioner of corrections, to promote their successful re-entry into society during a potentially difficult period of transition. Minn.Stat. § 609.109, subd. 7(b) (1998) (“The conditions of release may include successful completion' of treatment and aftercare in a program approved by the commissioner, satisfaction of the release conditions specified in section 244.05, subdivision 6, and any other conditions the commissioner considers appropriate.”). Consecutive conditional release sentences go beyond that purpose.

Based on the foregoing considerations, we conclude that consecutive conditional release sentences were unauthorized as a matter of law. We reverse and remand for resentencing. In the absence of a determination by the district court, we direct that the conditional release term for the first conviction should be vacated and that only the conditional release term for the second offense (second-degree criminal sexual conduct) then remains.

DECISION

Conditional release applies only at the end of a term of imprisonment, even a combined term involving consecutive sentences. Because multiple or consecutive conditional release terms cannot be imposed for convictions resulting from a single trial, the original sentence was unauthorized as a matter of law.

Reversed and remanded.

      . The Minnesota Sentencing Guidelines contain no authorization for consecutive periods of conditional release. This omission contrasts with Minn. Sent. Guidelines II.F, which expressly permits consecutive sentences of imprisonment.

      . We acknowledge there may be unique circumstances. See Koperski, 611 N.W.2d. at 571. However, no unique circumstance has been argued or appears to exist in the case before us.

      . We note that this issue may become moot. Appellant is presently 49 years old. Even if he commits no disciplinary offenses, and serves as much as the maximum one-third of his sentence on supervised release, pursuant to Minn.Stat. §§ 244.101, subd. 1 (2004), 244.05, subd. lb (2004), no additional conditional release term would be served and he would be 75 years old when discharged from the supervision of the commissioner of corrections. If disciplinary offenses occur and the full sentence is served incarcerated, he would be 84 years old when the conditional release term ends.