State of Minnesota, ex rel., Joshua Sather, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-2064

State of Minnesota, ex rel.,
Joshua Sather, petitioner,
Appellant,

vs.

Tom Roy, Commissioner of Corrections,
Respondent.

Filed July 10, 2017
Affirmed
Bratvold, Judge

Anoka County District Court
File No. 02-CV-16-4192

Cathryn Middlebrook, Chief Appellate Public Defender, Michael J. McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Lori M. Swanson, Attorney General, Lindsay K. Strauss, Assistant Attorney General, St.
Paul, Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Bratvold, Judge; and J. Smith,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In this habeas appeal, appellant challenges a supervised-release condition that
requires him to complete a sex -offender treatment program that mandates he take
responsibility for his convicted offenses . Appellant argues that this condition: (1) is
unworkable; (2) violates his Fifth Amendment right against self-incrimination; and
(3) violates substantive due process. Because appellant’s release condition is workable and
does not violate his constitutional rights, we affirm.
FACTS
Procedural History
In June 2006, a jury convicted appellant Joshua Sather of first- and second-degree
criminal sexual conduct for sexually abusing G.T., a family relative who was nine years
old at the time. The district court sentenced Sather to 12 years in prison and a mandatory
five-year conditional -release term. 1 On January 29, 2 008, this court affirmed Sather ’s
convictions on direct appeal. See State v. Sather, No. A06-2040, 2008 WL 224030 (Minn.
App. Jan. 29, 2008), review denied (Minn. Apr. 29, 2008).
In April 2009, Sather filed a petition for postconviction relief, which the district
court denied as procedurally barred. On February 2, 2010, this court affirmed . See Sather
v. State, No. A09-1326, 2010 WL 346444 (Minn. App. Feb. 2, 2010), review denied (Minn.
May 18, 2010).

1 Sather’s full prison sentence, including the five -year conditional -release term, is
projected to expire in 2022.
3
In August 2010, Sather filed a petition for a writ of habeas corpus in federal district
court, asserting violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution and claiming that he was “innocent and wrongfully
imprisoned.” Sather v. Dooley, Civil No. 10–3080 (JRT/JJG), 2012 WL 1005012, at *1–2
(D. Minn. Mar. 26, 2012) , appeal dismissed (8th Cir. June 21, 2012). In March 2012, the
district court denied Sather’s habeas petition, concluding that his claims were procedurally
barred because they were not fairly presented in state court. Id. at *2.
Supervised Release
On March 19, 2014, respondent the Commissioner of Corrections released Sather
from prison on intense supervision and required him to complete an approved sex-offender
treatment program. Sather enrolled in an approved treatment program but asserted his
innocence throughout treatment. In August 2014, Sather was terminated from the program
because he refused to accept responsibility for his crimes. According to a letter from a
program representative, “[t]reatment cannot treat an individual who refuses to admit to his
crime or take any responsibility for his crime.”
On August 21, 2014, the Department of Corrections’ (DOC) Hearings and Release
Unit (HRU) held a parole-revocation hearing. Sather’s parole agent stated that Sather was
“a high risk to reoffend” and recommended revoking Sather’s supervised release because
he had failed to complete treatment. Sather’s attorney told the hearings officer that Sather
was “willing to do whatever he needs to do to keep from going back to prison, but he won’t
admit to something he didn’t do.” A private investigator, who appeared on behalf of Sather,
informed the hearings officer that G.T. had recanted his trial testimony because it was not
4
“altogether true.” But the hearings officer found this evidence “not very credible,” revoked
Sather’s supervised release, and reincarcerated him.
During the next review hearing in March 2015, Sather’s parole agent recommended
extending Sather’s incarceration for additional release planning because Sather had
requested to attend a “deniers” program in the metropolitan area, which was outside his
parole supervision area. In October 2015, Sather made a formal written request to the HRU
to modify his release condition so he could attend a deniers treatment program that would
not require his admission of guilt. At a hearing, Sather’s parole agent stated that Sather
“expressed he is not interested in release planning and has not provided release placement
options.” T he hearing s officer denied Sather’s modification request, extended his
incarceration, and ordered that re-release was “contingent upon an agent-approved plan.”
In November 2015, Sather appealed the October 2015 decision to the HRU
Executive Officer. Sather asserted that his release condition violated the Fifth Amendment
privilege against self-incrimination because compelling him to admit guilt during treatment
creates a risk of perjury prosecution. The Executive Officer denied the appeal.
In August 2016, Sather filed this habeas pet ition, arguing that the condition of
completing a sex -offender treatment program that r equires him to admit guilt: (1) is
unworkable; (2) violates his Fifth Amendment privilege against self -incrimination, and
(3) violates substantive due process. After the parties completed their briefing in the district
court, but before the district court filed its order, Sather filed a notarized affidavit in support
of his petition , stating that “under penalty of perjury, I repeat that I am innocent of the
charge of sexually abusing G.T.”
5
The district court denied Sather’s petition, concluding that his release condition was
not “unworkable” because whether Sather chooses to accept responsibility for his offenses
is “fully” within his control . The district court also determined that Sather’s release
condition does not violate his Fifth Amendment rights because he would not have a “real”
risk of a perjury prosecution if he were compelled to admit guilt during treatment, nor does
it violate his substantive due -process rights because it survives rational-basis review.
Sather appeals.2
D E C I S I O N
The Minnesota constitution guarantees the privilege of filing a petition for a writ of
habeas corpus. Minn. Const. art. I, § 7. The legislature has codified this privilege, extending
the right to people who are “imprisoned or otherwise restrained of liberty.” Minn. Stat.
§ 589.01 (2016). A habeas petitioner may bring “ claims involving fundamental
constitutional rights and significant restraints on [the petitioner’s] liberty or to challenge
the conditions of confinement.” Guth, 716 N.W.2d at 26–27; see also State v. Schnagl, 859
N.W.2d 297, 302 (Minn. 2015) (stating that habeas petitioner may challenge DOC
decisions regarding parole revocation). A habeas petitioner bears the burden of showing
the illegality of his detention or restraint. Bedell v. Roy, 853 N.W.2d 827, 829 (Minn. App.

2 While Sather’s habeas petition was pending in the district court, the DOC re-released
him from prison on intense supervision . Neither party argues that Sather’s re -release
renders his habeas petition moot . During oral arguments in this court, counsel informed
this court that Sa ther remains on supervised release, subject to the same conditions.
Therefore, we conclude that Sather’s habeas claims still present a live controversy. See
State ex rel. Guth v. Fabian , 716 N.W.2d 23, 26 –27 (Minn. App. 2006) (stating that a
habeas petitio ner may assert challenges to the restraint on his liberty, including to his
“fundamental constitutional rights”), review denied (Minn. June 13, 2006).
6
2014). “The district court’s findings in support of a denial of a petition for a writ of habeas
corpus are entitled to great weight and will be u pheld if reasonably supported by the
evidence.” Aziz v. Fabian , 791 N.W.2d 5 67, 569 (Minn. App. 2010). We review l egal
questions, including constitutional issues, de novo. State v. Schwartz, 628 N.W.2d 134, 138
(Minn. 2001).
I. Sather’s release condition is workable.
Courts accord agencies deference, recognizing that they have expertise and “special
knowledge in the field of their training, education, and experience.” State ex rel. Morrow
v. LaFleur, 590 N.W.2d 787, 792 (Minn. 1999), overruled on other grounds by Johnson v.
Fabian, 735 N.W.2d 295, 300 –09 (Minn. 2007) . T he legislature has g ranted the
commissioner of c orrections statutory authority over the sup ervision and discipline of
offenders who are confined in Minnesota correctional facilities , including the manner of
their supervised release. State ex rel. Duncan v. Roy , 887 N.W.2d 271, 276 –77 (Minn.
2016); see generally Minn. Stat. § 243.05 (2016) ( describing commissioner’s powers);
Minn. Stat. § 244.05, subd. 3 (2016) (providing commissioner with authority to sanction
parolees for violating conditions of release). The commissioner may place an offender on
intense supervision and require completion of sex-offender treatment as a release condition
if the commissioner determines that it is in th e interests of public safety . Minn. Stat.
§ 244.05, subd. 6(a), (b) (2016); Minn. R. 2940.1900 ; see also Roth v. Comm’r of
7
Corrections, 759 N.W.2d 224, 227 –28 (Minn. App. 2008) (describing commissioner’s
authority to direct sex offenders to participate in treatment).3
When the commissioner exercises his authority, he must “fashion conditions of
release that are workable and not impossible to satisfy.” State ex rel. Marlowe v. Fabian ,
755 N.W.2d 792, 793 (Minn. App. 2008). If a condition “becomes unworkable at the time
of release due to circumstances largely outside the control of an offender, the DOC must
consider a restructure or modification ” of the condition. 4 Id. at 796 –97; see Minn. R.
2940.2700 (providing process for parolees to request restructuring of their release
conditions).
The release condition at issue here is completion of an approved sex-offender
treatment program that requires the admission of guilt. Sather argues that this condition is
unworkable because it is i mpossible to admit a crime he believes he did not commit ;
therefore, he contends he is unable to satisfy this release condition and he will be forced to
serve his full sentence in prison. Sather argues that the DOC must restructure his condition
so that he may attend a deniers treatment program, which the record reflects only exist s
outside his supervision area. We are not persuaded.

3 Through its rulemaking power, the commissioner has delegated authority to the HRU to
approve conditions of release, impose sanctions for violations, and revoke release. Minn.
R. 2940.0300; see also Minn. Stat. § 243.05, subd. 4 (2016) (permitting the commissioner
to delegate his powers).

4 The state contends that the rule from Marlowe is mere dicta. This argument lacks merit.
The rule stated above was the holding in Marlowe, thus, it is not dicta. See State v. Soukup,
656 N.W.2d 424, 430–31 (Minn. App. 2003) (stating that dicta is “a statement that reaches
beyond the actual dispute before the court” and is “not part of the court’s opinion”), review
denied (Minn. Apr. 29, 2003).
8
First, Sather has not identified any deniers treatment programs available to him, or
submitted any evidence establishing that he is el igible to begin tr eatment at a deniers
program. To the contrary, the record shows that Sather has been uncooperative in
developing a release plan with his parole agent, and he has failed to suggest alternative
treatment options that meet the applicable criteria. Sather’s case is distinguishable from
Marlowe where the parolee was unable to find any approved housing in his supervision
area to meet his release condition, although it was “clear that a suitable residential
placement [was] available in a neighboring county.” 755 N.W.2d at 793, 796. In contrast,
Sather was admitted into an approved sex -offender treatment program and attended
treatment sessions, as he acknowledges. Approved treatment programs remain available to
Sather, so it is not impossible for him to satisfy his release condition.
Second, Sather’s parole agent has stated t hat he does not believe that a deniers
program would be beneficial to Sather, and that he should be required to attend one of the
treatment programs in his supervision area. Sather’s agent, having been delegated authority
to supervise Sather’s release conditions, receives deference based on his experience and
training in the field. See Minn. Stat. § 243.05, subd. 6(c) (providing commissioner authority
to appoint parole agents to supervise paro lees); see also Minn. R. 2940.2000, subp. 3
(stating that parolees are required to “at all times follow the instructions of their supervising
agent”). We conclude it was within the DOC’s discretion to require Sather to attend a
treatment program in his supervision area.
9
II. Sather’s release condition does not violate his Fifth Amendment privilege
against self-incrimination.

The Fifth Amendment privilege against self -incrimination, applicable to the states
through the Fourteenth Amendment, provides that no person “shall be compelled in any
criminal case to be a witness against himself.” 5 U.S. Const. amend. V; Johnson, 735
N.W.2d at 299 . Two elements must exist for the Fifth Amendment privilege to apply:
compulsion and incrimination. Johnson, 735 N.W.2d at 29 9. The Minnesota Supreme
Court has held that extending a prisoner’s incarceration for refusal to admit offenses during
sex-offender treatment is compulsion under the Fifth Amendment. Id. at 309. Thus, it is
undisputed that compulsion was present in this ca se when the DOC revoked Sather’s
supervised release and reincarcerated him for refusing to take responsibility for his offenses
during sex-offender treatment.
This appeal turns on the incrimination element, which is satisfied when a compelled
answer would “support a conviction” or “furnish a link in the chain of evidence needed to
prosecute the claimant.” Id. A statement is not incriminating if there is only a “trifling or
imaginary” risk of incrimination. Id. Compelled statements about a conviction may be
incriminating: (1) when “a direct appeal of that conviction is pending, or . . . the time for
direct appeal of that conviction has not expired ”; and (2) even when a direct appeal has
expired, if the statement s create “the possibility of a pe rjury charge.” Id. at 309–11. But
“once a direct appeal has concluded and the risk of a perjury prosecution is absent or has

5 Sather only asserts a Fifth Amendment violation under the United States Constitution
and does not make any arguments specific to the Minnesota Constitution.
10
expired,” the Fifth Amendment no longer attaches to compelled statements concerning the
crime of conviction. Roth, 759 N.W.2d at 229.
Here, Sather’s direct appeal is no longer pending, so the first circumstance does not
apply. Sather argues the Fifth Amendment protects his refusal to answer questions about
his sex offenses during treatment because there is a real risk of a perjury pro secution and
he will forfeit any future exoneration based on his “actual innocence.” We first address the
risk of a perjury prosecution and then turn to Sather’s collateral-attack argument.
Unlike previous appellate decisions addressing this issue , Sather did not testify at
trial or plead guilty. Compare Johnson, 735 N.W.2d at 310–11 (concluding that appellant’s
compelled admission during sex -offender treatment would be incriminating because it
would create a real risk of a perjury prosecution based on appellant’s assertion of innocence
during his trial testimony ), with Roth, 759 N.W.2d at 229 (concluding that appellant’s
compelled admission during sex -offender treatment would not be incriminating because
appellant’s direct appeal expired and he had no risk of a perjury prosecution because he
pleaded guilty). Sather nonetheless claims his compelled admission during treatment
would create a “real and appreciable” risk of a perjury prosecution based on his assertions
of innocence in his : (1) unsworn te stimony at the parole revocation hearings, (2) 2010
federal habeas petition, and (3) sworn affidavit filed in support of his current habeas
petition. We will address each claim in turn.
First, Sather’s unsworn statements during administrative hearings do not create a
real risk of perjury prosecution because only s worn statements are subject to perjury
prosecution. State v. Mertz, 801 N.W.2d 219, 222 (Minn. App. 2011); see also Minn. Stat.
11
Ann. § 609.48 advisory comm. cmt. (West 1963) (“ The crime of perjury is primarily
concerned with preventing the giving of false information under oath or affirmation .”
(emphasis added)). Indeed, this court has strictly construed the perjury statute and held that
it requires a “formal oath.” Mertz, 801 N.W.2d at 222.6
Sather contends that his unsworn statements subject him to perjury prosecution
because the statements could have been made under oath. See Minn. Stat. § 609.48, subd.
1(1) (providing that a statement made during a proceeding in which the law authorizes the
statement to be made under oath is subject to perjury). Sather relies on a regulation under
the Administrative Procedure Act (APA), which allows the DOC to administer sworn
testimony at public hearings on proposed agency rules. Minn. R. 1400.2210, subp. 8 ; see
also Minn. Stat. § 243.05, subd. 2 (2016) (stating that the DOC may adopt rules according
to the APA). The revocation hearings at issue in this case, however, did not occur in the
context of a public rule hearing . Therefore, Sat her’s assertions of in nocence during the
administrative hearings do not create a risk of perjury prosecution.

6 Sather contends that “ Mertz is no longer good law” because the legislature has since
amended Minn. Stat. § 358.116 (2016), which states that a non -notarized court document
that is signed under penalty of perjury has the same force and effect as a formal ly sworn
court document. See Minn. Stat. § 609.48, subd. 1(4) (2016) (providing that statements
made according to Minn. Stat. § 358.116 are subject to perjury). We disagree. The advisory
committee comments to the perjury statute state that the statute imposes criminal penalties
“for false testimony given under oath,” but it does “not attempt to define when an oath is
required.” Minn. Stat. Ann. § 609.48, advisory comm. cmt. Thus, Mertz may be applied in
light of the section 358.116 amendments, which redefine how written statements are made
under oath.
12
Second, we consider Sather’s statements in his 2010 federal habeas petition, which
is not found in the appellate record.7 We do not consider matters outside the record. Minn.
R. Civ. App. P. 110.01; Thomas A. Foster & Assocs., LTD v. Paulson , 699 N.W.2d 1, 9
(Minn. App. 2005). We recognize, however, that the federal district court noted in its
decision that Sather claimed he is “innocent and wrongfully imprisoned.” Sather, 2012 WL
1005012, at *1. Even if Sather made sworn statements of his innocence in his federal
habeas petition, he does not face a real risk of perjury prosecution because the applicable
statute of limitations has expired. See Johnson, 735 N.W.2d at 311. Minnesota has a three-
year limitations p eriod for perjury prosecution . Minn. Stat. § 628.26(k ) (2016). The
limitations period for a possible perjury prosecution based on Sather’s statements in his
federal habeas petition expired in August 2013, before Sather participated in sex-offender
treatment in August 2014. Sather argues that the statute of limitations was tolled because
he fraudulently concealed the truth and his prior assertions of innocence were “ongoing”
crimes. But Sather does not cite any precedent applying either doctrine in the context of a
perjury prosecution. We conclude that the statute of limitations was not tolled.
Third, we consider Sather’s sworn affidavit filed in support of his current habeas
petition. Sather argues that because his affidavit maintains his innocence, was notarized
and signed under penalty of perjury, he could be subject to perjury if he is compelled to
admit guilt during treatment. See Minn. Stat. § 609.48, subd. 1(1), (4) (providing that false

7 Sather filed a reply memorandum in the district court, which states that his federal habeas
petition is attached as “Exhibit A.” But the district court register of actions does not reflect
that Exhibit A was ever filed.
13
written statement made under oath or affirmation is subject to perjury). The district court
rejected the affidavit as creating a real risk of a perjury prosecution because it was made
“to bolster his perjury argument.” We agree.
Sather’s after -the-fact assertion of innocence is insufficient to create a Fifth
Amendment claim. A habeas petitioner is not required to file an affidavit in support of his
habeas petition. Minn. Stat. § 589.04 (2016) (providing requirements for a habeas petition).
We are unconvinced that a petitioner may first assert that his imprisonment violates the
Fifth Amendment, and then later file an affidavit in the same proceeding to create the Fifth
Amendment violation.
Sather’s final argument is that being compelled to admit guilt violates his Fifth
Amendment privilege because he will forfeit a prospective postconviction appeal based on
actual innocence. This argument also lacks merit. In Roth, this court held that the pendency
or possibility of a collateral attack on a conviction does not extend the Fifth Amendment
privilege against self -incrimination if “a direct appeal has concluded and the risk of a
perjury prosecution is absent or has expired.” 8 759 N.W.2d at 229. As discussed, Sather’s
direct appeal has expired , and he faces no real risk of perjury prosecution. Therefore, the

8 Roth reaffirmed State ex rel. Henderson v. Fabian , which held that , “absent a showing
of manifest injustice, once appellant’s direct review had concluded, he no longer enjoyed
a Fifth Amendment privilege to refuse to participate in the sex -offender treatment
program.” 715 N.W.2d 128, 133 (Minn. App. 2006), rev’d, Johnson, 735 N.W.2d 295. The
supreme court reversed Henderson but on a different issue. It is unclear after Roth whether
manifest injustice is still required to grant habeas relief on Fifth Amendment grounds when
the time for direct review has expired and the petitioner does not have a real risk of a
perjury prosecution. We note, in any event, that Sather has not established that it would be
manifestly unjust to deny habeas relief on Fifth Amendment grounds.
14
Fifth Amendment privilege does not protect Sather’s compelled admission of guilt during
treatment.
III. Sather’s release condition does not violate substantive due process.
Substantive due process protects people “from certain arbitrary, wrongful
government actions regardless of the fairness of the procedures used to implement them.”
In re Linehan, 594 N.W.2d 867, 872 (Minn. 1999). Sather argues the release condition that
requires him to admit guilt during treatment violates substantive due process because it
“forces [him] to make a private, sexual admission that violates his deeply held personal
belief that he is innocent.” When a petitioner frames his substantive due-process interests
in light of a more “particular amendment,” that amendment applies, “not the more
generalized notion of substantive due process.” Mumm v. Mornson, 708 N.W.2d 475, 482
(Minn. 2006) (quotation omitted) . We conclude that the Fifth Amendment is the more
particular amendment that applies to Sather’s argument , and we have already fully
considered his Fifth Amendment claims . Therefore, we decline to separately analyze
Sather’s substantive due-process claim.
Affirmed.