Jerry Wayne Gerrard v. State of Minnesota

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0973

Jerry Wayne Gerrard, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed February 9, 2015
Affirmed
Peterson, Judge

Mille Lacs County District Court
File No. 48-K2-03-001007

Jerry Wayne Gerrard, Moose Lake, Minnesota (pro se appellant)

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

Janice J. Jude, Mille Lacs County Attorney, Melissa M. Saterbak, Assistant County
Attorney, Milaca, Minnesota (for respondent)

Considered and decided by Hudson, Presiding Judge; Peterson, Judge; and Larkin,

Judge.

UNPUBLISHED OPINION

PETERSON, Judge

This appeal is from an order denying appellant’s postconviction petition

requesting that his sentence be corrected by reducing the conditional-release term from

ten to five years. Appellant argues that his 1986 criminal-sexual-conduct conviction
cannot be used to increase the conditional-release term for his 1997 criminal-sexual-

conduct offense because the 1986 conviction occurred before the statute that requires a

ten-year conditional-release term was enacted in 1992. We affirm.

FACTS

In 1986, pro se appellant Jerry Wayne Gerrard was convicted of first-degree

criminal sexual conduct for an offense that occurred in 1985. At that time, there was no

conditional-release requirement in the sentencing statutes. In 2003, Gerrard was

convicted of two counts of first-degree criminal sexual conduct for an offense that

occurred in 1997. The district court sentenced Gerrard on one of the convictions to a

double durational departure of 244 months after determining that he was a patterned sex

offender. See Minn. Stat. § 609.1352, subd. 1(a) (1996) (requiring sentence at least

double presumptive sentence for patterned sex offender). The district court also stated

that there was “a zero to ten year conditional release” term.

Gerrard appealed his 2003 conviction and sentence. This court affirmed the

conviction but reversed and remanded the sentence based on Blakely v. Washington, 542

U.S. 296 124 S. Ct. 2531 (2004), because the sentence was based on findings made by

the court and not by a sentencing jury. State v. Gerrard, No. A04-0748 (Minn. App.

Mar. 15, 2005). On remand, the district court imposed a guidelines sentence and a ten-

year conditional-release term.

In February 2014, Gerrard filed a postconviction petition requesting correction of

his sentence under Minn. R. Crim. P. 27.03, subd. 9, arguing that the ten-year

conditional-release term was improper because, under the 1997 statute, which was

2
enacted in 1992, the ten-year term applied only if a defendant had a prior conviction for

first-, second-, third-, or fourth-degree criminal sexual conduct. See Minn. Stat.

§ 609.346, subd. 5(a) (1996) (governing conditional release of sex offenders). Gerrard

contended that because his 1986 conviction occurred before the 1992 enactment of the

conditional-release statute, it could not be used to enhance the conditional-release term

for his 2003 conviction. The district court summarily denied the petition without an

evidentiary hearing, and this appeal followed.

DECISION

I.

We review the district court’s denial of a postconviction petition for an abuse of

discretion. Gulbertson v. State, 843 N.W.2d 240, 244 (Minn. 2014). A court abuses its

discretion when its decision is based on an erroneous view of the law or is not supported

by logic and facts in the record. Id. We review the district court’s findings for clear error

and its legal conclusions de novo. Id.

The district court may correct an unauthorized sentence at any time. Minn. R.

Crim. P. 27.03, subd. 9; State v. Cook, 617 N.W.2d 417, 418 (Minn. App. 2000), review

denied (Minn. Nov. 21, 2000). “A criminal sentence that is contrary to the requirements

of the applicable sentencing statute is unauthorized by law.” Id. at 419. Interpretation of

sentencing statutes and procedural rules is a question of law subject to de novo review.

Johnson v. State, 801 N.W.2d 173, 176 (Minn. 2011) (procedural rules); State v. Borrego,

661 N.W.2d 663, 666 (Minn. App. 2003) (sentencing statutes).

3
 The sentencing statute enacted in 1992 provided for a supervised-release term of

five years for a person convicted of violating section 609.342, 609.343, 609.344, or

609.345.1 1992 Minn. Laws, ch. 571, art. 1, § 25 at 2002 (codified at Minn. Stat.

§ 609.346, subd. 5 (1992)). It also required a ten-year supervised-release term for

offenders convicted of “a second or subsequent” violation of those sections. Id.2 Gerrard

argues that because he was first convicted of first-degree criminal sexual conduct in

1986, before the conditional-release requirement was enacted in 1992, the 1986

conviction cannot be used to increase the length of the conditional-release term imposed

for his 1997 offense.

We review a question of statutory interpretation de novo. State v. Rick, 835

N.W.2d 478, 482 (Minn. 2013). If the statutory language is clear and unambiguous, we

interpret the statute according to its plain meaning without resorting to statutory

construction. Id. We apply the canons of statutory construction only when a statute is

susceptible to more than one reasonable interpretation. Id.

When Gerrard was convicted in 2003, the 1997 sentencing statute that applied to

his conviction provided that “[i]f the person was convicted for a violation of [section

609.342] a second or subsequent time . . . the person shall be placed on conditional

1
These sections define first-, second-, third-, and fourth-degree criminal sexual conduct.
2
This section was amended by 1993 Minn. Laws, ch. 326, art. 9, § 9, at 2089-90, which
changed the terminology from “supervised release” to “conditional release.” 1998 Minn.
Laws, ch. 367, art. 6, §§ 6, 16, at 731, 735, repealed section 609.346, and placed the
mandatory-conditional-release provisions in Minn. Stat. § 609.109, subd. 7. This section
was repealed by 2005 Minn. Laws, ch. 136, art. 2, § 23, at 933, and the conditional-
release terms were codified at Minn. Stat. § 609.3455, subd. 6. 2005 Minn. Laws, ch.
136, § 21, at 931.

4
release for ten years, minus the time the person served on supervised release.” Minn.

Stat. § 609.346, subd. 5(a) (1996). The language of the 1997 statute is clear and

unambiguous: a person convicted of first-degree criminal sexual conduct for a second

time “shall” be given a ten-year conditional-release term. Id. Nothing in the statute

indicates that the first conviction must have occurred after the supervised-release statute

was enacted in 1992. See State v. Stephanie, 354 N.W.2d 827, 830 (Minn. 1984) (stating

that statute requiring minimum term for subsequent sex offenders applied to subsequent

offense committed after effective date of statute when prior offense was committed

before effective date of statute). The district court’s decision was not based on an

erroneous view of the law and is supported by logic and facts in the record. The district

court did not abuse its discretion by denying Gerrard’s postconviction petition.

II.

The postconviction court denied Gerrard’s petition for relief without a hearing.

Generally, the court must hold a hearing on a postconviction petition “[u]nless the

petition and the files and records of the proceeding conclusively show that the petitioner

is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2014). The district court

concluded that Gerrard’s petition was “without merit.”

The district court’s decision to deny a postconviction evidentiary hearing is

reviewed for an abuse of discretion. State v. Vang, 847 N.W.2d 248, 266 (Minn. 2014).

Gerrard’s postconviction petition showed that he was convicted of first-degree criminal

sexual conduct in 1986 for a 1985 offense, and that he was convicted of first-degree

criminal sexual conduct a second time in 2003 for a 1997 offense. Gerrard’s

5
postconviction claim was that he was not subject to a ten-year conditional-release term

under the 1997 sentencing statute because his 1986 conviction occurred before the

conditional-release statute was first enacted in 1992. This claim was based on an issue of

statutory construction, which is a question of law, and Gerrard’s petition and the files and

records of the proceeding conclusively showed that Gerrard was entitled to no relief. The

district court did not abuse its discretion by denying Gerrard an evidentiary hearing.

Affirmed.

6