of Appeals Office of Appellate Courts
Swanson, Minnesota Attorney General, Saint Paul, Minnesota,
and Ronald Hocevar, Scott County Attorney, Todd P. Zettler,
First Assistant Scott County Attorney, Shakopee, Minnesota,
Cathryn Middlebrook, Chief Appellate Public Defender, Amy
Lawler, Assistant State Public Defender, Saint Paul,
Minnesota, for respondent.
v. Her, 862 N.W.2d 692 (Minn. 2015), announced a new
rule of constitutional criminal procedure that does not apply
to the collateral review of respondent's sentence.
State v. Her, 862 N.W.2d 692, 696-700 (Minn. 2015),
we held that the fact that a defendant was a risk-level-III
offender at the time of the offense must be admitted by the
defendant or found by a jury beyond a reasonable doubt before
a court may impose a 10-year period of conditional release as
part of a sentence for failing to register as a predatory
offender. The issue here is whether Her applies
retroactively to sentences that were imposed and became final
before Her was decided. In a motion to correct his
sentence under Minn. R. Crim. P. 27.03, subd. 9, respondent
Brian William Meger argued that his 10-year
conditional-release term was illegal because Her
applied retroactively to his sentence. The district court
granted Meger's motion and vacated the
conditional-release term. The court of appeals affirmed.
Because we conclude that Her announced a new rule of
constitutional criminal procedure that does not apply to the
collateral review of Meger's sentence, we reverse.
Brian William Meger was required to register as a predatory
offender because of a conviction of attempted first-degree
criminal sexual conduct in 1995. See Minn. Stat.
§ 243.166, subd. 1b (2016). In 2005, the State charged
Meger with failing to register as a predatory offender, Minn.
Stat. § 243.166, subds. 3(b), 5 (2016). A person
convicted of failing to register as a predatory offender is
subject to a 10-year period of conditional release if the
offender was a risk-level-III offender at the time of the
offense.See Minn. Stat. § 243.166,
subd. 5a (2006). Although the probable cause portion of the
complaint stated that Meger was a risk-level-III offender,
the complaint made no reference to conditional release or
Minn. Stat. § 243.166, subd. 5a.
a plea agreement, Meger pleaded guilty to failure to register
as a predatory offender in exchange for a 20-month sentence,
a downward durational departure. On September 7, 2006, the
district court accepted Meger's guilty plea and sentenced
him to 20 months in prison. In January 2007, the court
received a letter from the Minnesota Department of
Corrections (DOC) inquiring whether the court intended to add
a 10-year conditional-release term to Meger's sentence
based on Meger's risk-level-III status, Minn. Stat.
§ 243.166, subd. 5a. In an order signed on January 29,
2007, the district court amended Meger's sentence by
adding a 10-year conditional-release term.
served his 20-month prison sentence, and then remained in
prison for approximately 6 additional years because the State
could not find appropriate housing for him on conditional
release. In June 2014, Meger filed a motion to correct his
sentence under Minn. R. Crim. P. 27.03, subd. 9, requesting
that his conditional-release term be vacated because a jury
had not found that he was a risk-level-III offender at the
time he failed to register. The district court denied the
motion. Two weeks later, we held in State v. Her,
862 N.W.2d 692, 696-700 (Minn. 2015), that the Sixth
Amendment prohibits a court from imposing a 10-year
conditional-release term upon a predatory offender under
Minn. Stat. § 243.166, subd. 5a, unless the offender
admits or a jury finds that he or she was a risk-level-III
offender at the time of the failure to register. Meger
immediately moved for reconsideration based on our decision
district court granted Meger's motion to reconsider and
his motion to correct his sentence. The court applied
Her retroactively, and determined that the
conditional-release term was unlawful under Her
because Meger's risk-level status was based solely on
"unestablished, extra-judicial facts" contained in
a DOC letter provided after he had been sentenced. The court
did not impanel a sentencing jury given the "far from
ideal" procedural practices in Meger's case, the
substantial time Meger had already served in prison during
his conditional-release term, and concerns of complications
caused by double jeopardy. The district court vacated
Meger's conditional-release term and imposed his original
20-month sentence, the maximum sentence contemplated at the
time of the plea agreement. Because Meger had already served
that sentence, the district court ordered his immediate
release from custody.
court of appeals affirmed, holding that Her applies
retroactively because it was "merely an application of
the Sixth Amendment jury-trial right that governed the
Minnesota Supreme Court's previous decisions in"
State v. Jones, 659 N.W.2d 748');">659 N.W.2d 748 (Minn. 2003), and
State v. Grossman, 636 N.W.2d 545 (Minn. 2001), and
U.S. Supreme Court Sixth ...