Joshua Lee Jones, petitioner, Appellant,

This opinion will be unpublished and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
A18-1943

Joshua Lee Jones, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 19, 2019
Affirmed
Florey, Judge

Olmsted County District Court
File No. 55-CR-14-3607
Rice County District Court
File No. 66-CR-15-646

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Worke, Judge; and Florey,
Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellant argues that the district court unlawfully imposed ten-year conditional-
release terms when sentencing him for two failure -to-register offenses and that the
postconviction court erred by treating his motion to correct his sentences and vacate those
conditional-release terms as an untimely petition for postconviction relief. Because the
postconviction court properly deemed appellant’s motion as an untimely petition for
postconviction relief, we affirm.
FACTS
In 2005, appellant Joshua Lee Jones was co nvicted of third-degree criminal sexual
conduct and was therefore required to register as a predatory offender. Approximately
eight years later, i n November 2013, police responded to a domestic incident at an
apartment in Rochester and received reports th at appellant was living at the apartment in
violation of his registration requirements. Appellant was charged in Olmsted County with
failure to register, terroristic threats, and domestic assault. Months later, appellant was
charged in Rice County with failure to register. It was alleged that he reported a change of
address to an apartment in Faribault, but was not residing at that location.
In May 2015, appellant entered into “a global plea agreement” wherein he pleaded
guilty to the Rice County failure-to-register charge, the Olmsted County failure-to-register
and domestic -assault charges , and a misdemeanor -theft charge in a separate file. In
exchange, the remaining charges in those files , as well as charges in a number of other
files, were dismisse d. It was agreed that the parties would recommend 24 -month

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concurrent sentences on the failure-to-register offenses, which the parties understood to be
mandatory minimum sentences.
Appellant was represented by counsel during the plea. His counsel stated that
appellant understood he was assigned a risk -level three at the time of his registration
offenses, and he would, therefore, be placed on conditional release for a period of ten years
following his release from prison. When questioned by the court, ap pellant stated that he
understood the plea and that he would be giving up his right to a jury trial. He also stated
that he understood a conditional-release period was applicable and that he had talked over
that issue with his lawyer. In establishing a factual basis for the plea, appellant was twice
asked if he was assigned a risk -level three at the time of the offenses to which he was
pleading guilty, and he twice responded, “Yes.”
Appellant also signed and tendered to the district court a plea petitio n. It indicated
that he understood he was waiving his right to a jury trial “on the issue of guilt .” It also
indicated that he understood he was assigned a risk -level three when he violate d his
registration requirements and would be subject to ten years of conditional release.
In July 2015, appellant was sentenced to 24 months’ imprisonment on the Rice
County failure-to-register offense, and he was given a ten-year conditional-release term.
Appellant was sentenced to 24 months’ imprisonment on the Olmste d County failure-to-
register offense, to be served concurrently with the Rice County sentence, and he was given
a ten-year conditional-release term.1

1 Appellant was given a 365-day concurrent sentence for the domestic-assault offense.

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In July 2018, appellant moved, separately, to correct his Rice and Olmsted County
sentences pursuant to Minn. R. Crim. P. 27.03, subd. 9, and those motions were
consolidated. Appellant asserted that he did not receive a jury determinat ion on his
offender-risk level and did not waive his right to a jury finding on that fact, and therefore
his ten-year conditional -release term s were unlawfully imposed. See State v. Her , 862
N.W.2d 692, 693 (Minn. 2015) (holding that whether a defendant is a risk -level-three
offender is a fact that must be admitted by the defendant or fo und by a jury before a court
may impose a ten -year conditional -release term under Minn. Stat. § 243.166, subd. 5a
(2014)).
The district court denied appellant’s motion to correct his sentence s. The court
concluded that appellant’s conditional -release ter ms were “an integral part” of his plea
agreement, and “the [s]tate would be deprived of [the] benefit of the bargain” if the terms
were vacated. Therefore, the court concluded that a motion to correct appellant’s sentence
was not the proper vehicle for relief; rather, appellant’s “exclusive remedy [was] a petition
for postconviction relief” under Minn. Stat. § 590.01 (2018).2 The district court concluded,
however, that appellant was time barred from seeking relief under section 590.01. This
appeal followed.
D E C I S I O N
A district court must impose a ten-year period of conditional release for any person
who commits a failure -to-register violation while as signed a risk -level three. See Minn.

2 While we cite the most recent version of the postconviction statute, we note that the
language of section 590.01 has not changed during the times relevant to this appeal.

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Stat. § 243.166, subd. 5a (Supp. 2013).3 In April 2015, the supreme court held that a district
court may not impose such a term unless the defendant admits that he was a risk-level three
at the time of the offense, or a jury makes that finding. Her, 862 N.W.2d at 693.
Appellant argues that, although he admitted he was a risk -level three at the time of
his offenses, he did not specifically waive his right to a jury finding on that issue, and his
sentence was, therefore, unauthorized, and he was permitted to seek relief vi a a motion to
correct his sentence . We need not reach the merits of appellant’s waiver argument.
Presuming, but not deciding, that appellant was entitled to a specific waiver of his right to
a jury determination on his risk -level, and accepting that his sentence was therefore
unauthorized, appellant is still not entitled to relief. 4 The district court properly treated
appellant’s motion as a n untimely petition for postconviction relief because the ten -year
conditional-release terms that appellant sought to vacate were an integral part of appellant’s
plea agreement.

3 We cite the 2013 version of section 243.166, subdivision 5a, the version in effect at the
time of appellant’s Olmsted County offenses. We not e that the language of section
243.166, subdivision 5a, has not changed since the 2013 version.
4 While we resolve this appeal on the grounds that appellant’s motion was properly deemed
an untimely postconviction petition, we note a potential shortcoming in appellant’s
argument. In State v. Kuhlmann, a defendant stipulated to having previous convictions that
satisfied elements of his charged offenses. 806 N.W.2d 844, 846 -47 (Minn. 2011). The
supreme court determined that the defendant did not validly waive his right to a jury trial
on the previous-conviction elements, but under plain-error review, the defendant was not
entitled to relief for lack of prejudice . Id. at 850, 853. We cannot help but notice the
similarities between Kuhlmann and this case. W ith no challenge to the accuracy of his
plea, appellant effectively frames his challenge as an attack on a procedural error, and any
prejudice is suspect as appellant admitted, during his plea, to having been a risk-level-three
offender at the time of his offenses.

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There are two alternative means of challenging a sentence, each subject to different
procedural requirements. Washington v. State, 845 N.W.2d 205, 210 (Minn. App. 2014).
First, an offender may move the district court to “at any time correct a sentence not
authorized by law.” Minn. R. Crim. P. 27.03, subd. 9; see Townsend v. State, 834 N.W.2d
736, 738-39 (Minn. 2013). Second, an offender can petition for relief under section 590.01,
which provides that “‘a person convicted of a crime, who claims . . . the sentence . . . made
violated the person ’s rights under the Constitution or l aws of the United States or of
[Minnesota]’ may ‘commence a proceeding to sec ure relief by filing a petition [to] . . .
correct the sentence.’” Townsend, 834 N.W.2d at 739 (quoting Minn. Stat. § 590.01, subd.
1(1)). Section 590.01 contains heightened procedural requirements, such as time limits on
when a petition may be filed. See Minn. Stat. § 590.01, subd. 4.
“A person who brings what is, in substance, a challenge to a criminal conviction
cannot use [r]ule 27.03, subdivision 9, to circumvent the procedural requirements of the
postconviction statute.” Wayne v. State, 870 N.W.2d 389, 391 (Minn. 2015). In this vein,
postconviction courts are permitted, in some instances, to treat a motion under rule 27.03
as a petition under section 590.01. See id. A determination of whether the postconviction
court properly treated appellant’s motion as a petition for postconvi ction relief presents
“issues regarding the interpretation of a procedural rule and statute, questions subject to de
novo review.” State v. Coles, 862 N.W.2d 477, 479 (Minn. 2015).
In Reynolds v. State , the supreme court held that the imposition of a ten -year
conditional-release term under section 243.166, subdivision 5a, without a jury’s offender-
risk-level finding or a defendant ’s risk-level admission, represents an unauthorized

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sentence, properly challenged via a rule 27.03 motion. 888 N.W.2d 125, 130 (Minn. 2016).
However, th is case is distinguishable from Reynolds. Appellant’s conditional -release
terms were imposed pursuant to a plea agreement, whereas in Reynolds, the conditional-
release term was imposed via a sua sponte modification of the defendant’s sentence. Id. at
128; see State v. Meger , 901 N.W.2d 418, 420 (Minn. 2017) (involving district court’s
imposition of ten-year conditional release term months after sentencing); State v. Franson,
921 N.W.2d 783, 784-85 (Minn. App. 2018) (involving district court’s imposition of ten-
year conditional -release term months after sentencing ), review denied (Minn. Feb. 27,
2019).
In State v. Coles , the supreme court considered whether the defendant could
challenge his upward-departure sentence under rule 27.03 when the sentence was part of a
plea agreement in which the state agreed to dismiss other pending charges. 862 N.W.2d
477, 478-79 (Minn. 2015). The Coles court concluded that when a defendant’s motion to
correct his sentence implicates the plea agreement, including the state’s dismissal of other
pending charges, the exclusive remedy is postconviction relief. Id. at 481-82. The Coles
court reasoned that if the defendant’s sentence was modified, as he requested, “the terms
of the plea agreement the pa rties reached will, in effect, have been rejected,” and in such
circumstances, the defendant must “be given a chance to withdraw his plea of guilty.” Id.
at 480 (quotation omitted); see Minn. R. Crim. P. 15.04, subd. 3(2) (noting that “the district
court judge must reject or accept the plea of guilty on the terms of the plea agreement ,”
and “[i]f the court rejects the plea agreement, it must advise the parties in open court and
then call upon the defendant to either affirm or withdraw the plea. ”). Based on the

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aforementioned reasoning, t he supreme court concluded that the defendant’s motion, in
Coles, affected more than just the sentence.
Like Coles, appellant’s rule 27.03 motion implicates more than his sentence ; it
implicates his plea agreement. Accordingly, a rule 27.03 motion was unavailable, and the
postconviction court properly considered appellant’s motion as a peti tion for
postconviction relief. Appellant acknowledges that what the parties agreed to , as part of
their plea agreement, presents a fact issue, reviewed for clear error. See State v. Brown ,
606 N.W.2d 670, 674 (Minn. 2000) (“What the parties agreed to involves an issue of fact
to be resolved by the district court.”); see also Dobbins v. State , 788 N.W.2d 719, 725
(Minn. 2010) (stating that factual findings will not be reversed unless clearly erroneous).
The district court found that the conditional -release terms were part of the plea
agreement. This finding is supported by both the plea transcript and plea petition, and is
not clearly erroneous. The portion of the signed plea petition setting forth the parties’
agreement stated that appellant understood “that, as a predatory offender, [he] was assigned
to risk level III at the times [he] [was] alleged to have violated” the registration statute, and
he understood that after he was “rele ased from prison, the Commissioner [would] place
[him] on conditional release for 10 years in accordance with Minn. Stat. 243.166 Subd.
5a.” The conditional-release terms were “a material part of the negotiation.” See Evans v.
State, 880 N.W.2d 357, 359-60 (Minn. 2016) . As such, the district court properly
determined that, because appellant’s motion implicated his plea, he could not seek relief
under rule 27.03.

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Appellant attempts to distinguish Coles. He notes that the defendant in Coles agreed
to the dismissal of a more serious charge, and potential sentence, in exchange for a plea to
a lesser charge, and a shorter, though upwardly departed, sentence. Appellant asserts that
the sentence in Coles was therefore a negotiated term of the plea agreement. He asserts
that the state “did not bargain” for his conditional -release terms. However, t he district
court found otherwise, and the record supports this finding . The ten -year conditional -
release terms were expressly incorporated into the agreement porti on of the plea petition.
Further, the state dismissed numerous charges as part of the agreement.
Appellant, relying on Reynolds, also argues that application of the postconviction
time bar violates the separation of powers doctrine. In Reynolds, the supreme court noted
that sentencing is generally a judicial function, and therefore, “[t]o the extent that the
limitations period in Minn. Stat. § 590.01, subd. 4, interferes with the process laid out in
[rule 27.03, subdivision 9], the statute viola tes the separation of powers.” 888 N.W.2d at
132-33. This case does not implicate the separation of powers doctrine because appellant
is not merely challenging his sentence. He is, in effect, challenging his plea and conviction.
Affirmed.