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State v. Kittrell

November 12, 2002

STATE OF MINNESOTA, RESPONDENT,
v.
THOMAS E. KITTRELL, APPELLANT.



Gordon W. Shumaker, Judge Steele County District Court File No. K698259

Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

The opinion of the court was delivered by: Gordon W. Shumaker, Judge

Affirmed as modified

UNPUBLISHED OPINION

Appellant argues on appeal that the district court violated the Apprendi rule by sentencing him as a patterned sex offender on two counts of second-degree assault to terms that exceed the statutory maximum, requiring him to supply a DNA sample, requiring him to register as a sex offender, and imposing a mandatory conditional-release term. See Apprendi v. N.J., 530 U.S. 466, 120 S. Ct. 2348 (2000). Because the district court did not abuse its discretion in sentencing appellant and in imposing related conditions, we affirm and modify the conditional-release term.

FACTS

Appellant Thomas Kittrell sat in his pickup truck in a Wal-Mart parking lot on March 28, 1998, and watched S. E. and C. L. drive into the lot in a minivan. After the women parked and went inside the store, Kittrell entered the van and hid in the back.

When the women returned and began to drive away, they noticed Kittrell moving toward them from the rear of the van. As he moved, he held a knife above his head and made downward stabbing motions toward S. E. The women fled and screamed for help. Soon afterward, the police arrested Kittrell in the Wal-Mart parking lot.

The state charged Kittrell with two counts of attempted kidnapping and two counts of second-degree assault. He entered a plea agreement under which he pleaded guilty to both counts of second-degree assault in violation of Minn. Stat. §á609.222, subd. 1 (1998), in exchange for an aggregate sentence limited to 126 months and consisting of 84 months for one count and 42 months for the other, and the dismissal of the attempted-kidnapping charges. Kittrell also stipulated that the entire record, including his criminal history, would be submitted to the court for a determination of whether he is a patterned sex offender. He agreed not to offer evidence or argument on that issue and not to oppose a finding that he is a patterned sex offender.

After reviewing the stipulated record, the district court concluded that Kittrell is a patterned sex offender. The court then sentenced Kittrell to a term of 126 months, of which 84 months is to be served in prison and 42 months on supervised release. The court also ordered Kittrell to provide a DNA sample, register as a sex offender, and pay restitution.

Following the entry of the sentencing order, Kittrell moved to "correct" the sentence, challenging the court's determination that he is a patterned sex offender. The court denied the motion in an order filed on September 10, 2001, but in its memorandum stated: "[d]efendant was not sentenced under the Patterned Sex Offender Statute."

Kittrell appealed. The state moved to dismiss the appeal as untimely. In an order dated June 11, 2002, this court denied the motion to dismiss the appeal and ordered: "The scope of appellate review is limited to those sentencing or sentencing-related issues addressed in the district court's September 10, 2001 order."

In its order filed on September 10, 2001, the district court ruled on two issues related to Kittrell's sentence: (1) the length of his sentence, and (2) the determination that Kittrell is a patterned sex offender, which affects the duration of his sentence and triggers collateral consequences, such as DNA ...


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