State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1584

State of Minnesota,
Respondent,

vs.

London Lamar Kellogg,
Appellant.

Filed July 1, 2019
Reversed and remanded
Peterson, Judge*

Hennepin County District Court
File No. 27-CR-16-27906

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, He nnepin County Attorney, Sean P. Cahill, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Abigail H. Rankin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and
Peterson, Judge.

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

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U N P U B L I S H E D O P I N I O N
PETERSON, Judge
Appellant challenges the revocation of his probation, arguing that his ten-year
conditional-release term constitutes an illegal sentence and that the district court abused its
discretion in concluding that the need for confinement outweigh s the policies favoring
probation. We reverse and remand.
FACTS
In June 2017, appellant London Lamar Kellogg pleaded guilty to failing to register
as a predatory offender, in violation of Minn. Stat. § 243.166, subd. 5(a) (2016). 1 On
August 3, 2017, the district court sentenced Kellogg to 21 months in prison and imposed a
ten-year conditional -release term . The court also granted Kellogg a dispositional
departure, stayed execution of the sentence, and placed Kellogg on probation for three
years under several conditions.
In late March 2018, a probation -violation report was filed, alleging that Kellogg
violated three conditions of probation. The district court held a hearing in early April, and
Kellogg admitted the violations. The district court found Kellogg in violation, requir ed
four days in jail with credit for four days served, reinstated probation under the same terms
and conditions, and added a condition regarding health insurance.

1 Kellogg was required to register as a consequence of a criminal -sexual-conduct
conviction in 2008.

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A second probation-violation report was filed in May 2018, alleging that Kellogg
violated the probation condition that he remain law abiding because he was charged with
fifth-degree dru g possession. In early June 2018, Kellogg pleaded guilty to the drug-
possession charge.
Later in June, the district court held two hearings to determine whether t o revoke
Kellogg’s probation. Kellogg’s attorneys argued at the hearing that Kellogg is an addict in
need of treatment, and they asked that he be given an opportunity to continue on probation
and treat his addiction, rather than go to prison. They explained that there was a treatment
facility, Restoration Counseling & Community Services, LLC (RCCS), that was willing to
accept Kellogg on an outpatient basis, 2 and they proposed that Kellogg be held at the
workhouse and be furloughed daily to RCCS to undergo a nine -month drug-treatment
program. The prosecutor raised a concern that if Kellogg were to spend nine months —or
about 270 days—going through the RCCS pro gram while serving time in the workhouse,
he would be given credit against his prison sentence for the days he served in the workhouse
and would effectively have only ten days remaining on his executable sentence. 3 The
concern with this was that it would essentially eliminate any incentive for Kellogg to follow

2 RCCS would not accept Kellogg on an in patient basis because he is a risk level III sex
offender.
3 The executable sentence was 21 months. Under the two-thirds rule, Kellogg would serve
14 months in prison, or about 420 days. See Minn. Stat. § 244.01, subd. 8 (2018) (defining
“term of imprisonment” as being equal to two-thirds of the executed sentence). But he had
140 days of credit on his sentence for time that he had already spent in custody , which
meant that only 280 days remained to be executed at the time of the probation-revocation
hearing. See Minn. Sent. Guidelines 3.C & cmt. 3.C.03 (2016) (credit should be awarded
for time spent in custody as condition of stay of execution when stay is revoked and
offender is committed).

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through with the next treatment he was required to undergo—sex-offender treatment. The
prosecutor also told the court that an executed prison sentence would result in a ten -year
conditional-release period following Kellogg’s release from prison.
The district court shared the prosecutor’s concern that if Kellogg remained on
probation, while completing chemical-dependency treatment, there would not be sufficient
time remaining on Kellogg’s sentence to provide an incentive for him to complete sex -
offender treatment. The district court explained:
Well, Counsel, my—my concern is that there’s no time
left, and having a 10-year conditional release period, there will
be time to ma ke sure that Mr. Kellogg gets the chemical
dependency treatment and the sex offender treatment.
And that’s the biggest —the biggest problem with this
whole thing. If there was longer than 280 days left—I just see
that Mr. Kellogg didn’t—didn’t move quick enough to get this
stuff done.

. . .

There’s not enough time with 280 days remaining. So I’m
going to find that the benefits that were afforded to you at the
time that you were given the dispositional departure are
outweighed right now. And so I will t hen commit you on the
time that you were given previously.

The district court executed the previously stayed 21-month sentence along with the
associated ten-year conditional-release term and credited Kellogg wi th 140 days already
served. This appeal follows.
D E C I S I O N
Kellogg argues that his ten -year conditional -release term constitutes an illegal
sentence and that the district court abused its discretion by revoking his probation. We

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begin by addressing the legality of Kellogg’s sentence. We review the legality of a
sentence de novo. State v. Franklin, 847 N.W.2d 63, 64 (Minn. App. 2014). We “may at
any time correct a sentence not authorized by law.” Minn. R. Crim. P. 27.03, subd. 9.
The predatory-offender registration statute requires a ten-year conditional-release term
under certain circumstances. The statute provides:
Notwithstanding the statutory maximum sentence otherwise
applicable to the offense or any provision of the sentencing
guidelines, when a court commits a person to the custody of the
commissioner of corrections for [knowingly failing to register]
and, at the time of the violation, the person was assigned to risk
level III under section 244.052, the court shall provide that
after the person has been released from prison, the
commissioner shall place the person on conditional release for
ten years.

Minn. Stat. § 243.166, subd. 5a (emphasis added).
Because Kellogg was assigned to risk level III when he failed to register, the statute
requires that, when he is committed to the custody of the commissioner, he shall be placed
on conditional release for ten years following his release from prison . But the supreme
court has held that, in order to impose such a conditional-release term, there must be either
a jury finding or an admission by the defendant that he was a risk -level-III offender when
he violated the registration statute. Reynolds v. State, 888 N.W.2d 125, 130 (Minn. 2016);
see also State v. Her , 862 N.W.2d 692 , 696 (Minn. 2015). If there is no jury finding or
admission about the defendant’s risk level, imposin g a ten-year conditional-release term
constitutes an illegal sentence. Reynolds, 888 N.W.2d at 130.
Kellogg asserts that there was neither a jury finding nor an admission about his risk
level at the time of his offense, and our review o f the record, including the plea -hearing

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and the sentencing-hearing transcripts, confirms that there was neither a jury finding nor
an admission . Accordingly, we conclude , and the state concedes, that the ten -year
conditional-release term is illegal, and we reverse that portion of Kellogg’s sentence.
The district court stated that it based its decision to revoke Kellogg’s probation and
commit him to the custody of the commissioner in large part on its belief that , upon his
release from prison, Kellogg will be subject to a ten-year conditional-release term. Because
we have concluded that the ten -year conditional -release term constitutes an illegal
sentence, a significant portion of the district court’s reasoning no longer applie s.
Accordingly, we reverse the revocation of Kellogg’s probation and remand to the district
court to reconsider the probation -revocation issue in light of the illegality of the ten-year
conditional-release term. Because we reverse the probation revocation on the basis of the
change in Kellogg’s sentence, we do not address Kellogg’s other probation-revocation
arguments.
Reversed and remanded.