Melvin L. Allen, 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This opinion will be unpublished and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
A20-0001

Melvin L. Allen, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 26, 2020
Affirmed
Hooten, Judge

Hennepin County District Court
File No. 27-CR-09-38072

Melvin L. Allen, Moose Lake, Minnesota (pro se appellant)

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Hooten, Judge; and Johnson,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
In this appeal, appellant argues that the district court abu sed its discretion when it
denied his motion to correct an unauthorized sentence because : (1) the sentencing court
should have impaneled a jury or had an evidentiary hearing to determine whether or not a

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previous conviction for criminal sexual assault exis ted for the purpose of implementing a
lifetime conditional release , and (2) the district court’s reliance on one of his prior
convictions for criminal sexual assault as a predicate offense to impose a lifetime
conditional release violates the ex post facto clauses of the United States and Minnesota
Constitutions. We affirm.
FACTS
In 1988, appellant Melvin Allen, a minor who was tried as an adult, was found guilty
of criminal sexual assault of a ten-year-old boy and aggravated criminal sexual assault of
a six-year-old girl after a bench trial in Illinois. People v. Allen, 580 N.E.2d 1291, 1293
(Ill. App. Ct. 1991). These convictions withstood a sufficiency of the evidence challenge
on appeal. Id. at 1297. At some point after 1991, Allen moved from Illinois to Minnesota.
In 2009, Allen’s ten-year-old daughter reported being sexually assaulted by Allen.
Allen was charged with three counts of first -degree criminal sexual conduct: one count in
violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2008), and two counts in violation of
Minn. Stat. § 609.342, subd. 1(a) (2008). A jury found Allen guilty on all three counts in
2010.
The district court convicted Allen for his violation of Minn. Stat. § 609.342, subd.
1(h)(iii), and imposed an execut ed sentence of 144 months and a lifetime conditional
release as required by Minn. Stat. § 609.3455, subd. 7 (b) (2008) (imposing a lifetime
conditional release for specific sexual offenses when the o ffender has a previous sex
offense conviction). This conviction survived a constitutional challenge and a sufficiency

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of the evidence challenge in a direct appeal to this court. State v. Allen , No. A10 -1117
(Minn. App. July 5, 2011), review denied (Minn. Sept. 20, 2011).
In 2019, Allen filed a motion to correct his sentence under Minn. R. Crim. P. 27.03,
subd. 9 (providing that a court may correct a sentence not authorized by law at any time).
Allen claimed that he was not subject to the lifetime conditional release as mandated by
Minn. Stat. § 609.3455, subd. 7 (b), because his 1988 predicate offenses predate the
enactment of the statute, and a jury should have been empaneled during sentencing to
determine whether or not Allen even had a previous c onviction for sex offense s. The
district court denied Allen’s motion to correct his sentence.
Allen appeals.
D E C I S I O N
Allen appears to argue that the district court abused its dis cretion by denying his
motion to correct his sentence under Minn. R. Crim. P. 27.03 because: (1) th e sentencing
court should have either impaneled a jury or had an evidentiary hearing to determine
whether or not a previous conviction for criminal sexual assault existed, and (2) relying on
one of his 1988 convictions for criminal sexual assault as a predicate offense to impose a
lifetime conditional release violates the ex post facto clauses of the United States and
Minnesota Constitutions.
“We review a district court’s denial of a motion to correct a sentence [under Mi nn.
R. Crim. P. 27.03, subd. 9] for an abuse of discretion. Specifically, we review the district
court’s legal conclusions de novo and its factual findings under the clearly erroneous
standard.” Townsend v. State, 834 N.W.2d 736, 738 (Minn. 2013).

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A. The district court did not abuse its discretion when it concluded that the
sentencing judge did not err in its failure to impanel a jury or have an
evidentiary hearing to determine the existence of a predicate offense for the
implementation of a lifetime conditional release.

While Allen does not contest the existence of his 1988 criminal sexual conduct
convictions, he claims that he was nonetheless entitled to a jury trial or, in the alternative,
an evidentiary hearing regarding the existence of a predic ate offense before a lifetime
conditional release may be imposed.
The right to a jury trial under the Sixth Amendment is a fundamental right that
“indisputably entitle[s] a criminal defendant to a jury determination tha t he is guilty of
every element of the crime with which he is charged, beyond a reasonable doubt.”
Apprendi v. New Jersey , 530 U.S. 466, 477, 120 S. Ct. 2348, 2356 (2000) (quotation
omitted). The scope of the sentencing judge’s authority is derived wholly and exclusively
from the jury’s verdict. Blakely v. Washington, 542 U.S. 296, 306, 124 S. Ct. 2513, 2539
(2004). Accordingly, a sentencing judge is limited in its authority to impose a sentence
outside of the presumptive range. State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).
A s entencing judge may find the existence of a prior conviction in the context of an
imposition of a conditional release term when that prior conviction is not an element of the
offense for which the defendant is sentenced. State v. Her, 862 N.W.2d 692, 698 (Minn.
2015).
Allen was adjudicated guilty and sentenced for violating Minn. Stat. § 609.342,
subd. 1(h)(iii). This provision criminalizes the conduct of an actor who sexually penetrates
someone under the age of 16 on multiple occasions with whom the ac tor has a significant

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relationship. Minn. Stat. § 609.342, subd. 1(h)(iii). Allen’s previous conviction s for
criminal sexual assault in Illinois are not an element of this crime. Indeed, the district court
only used one of the Illinois convictions as a predicate conviction so as to impose a lifetime
conditional release term as required by Minn. Stat. § 609.3455, subd. 7(b).
As the Illinois convictions were not an element of the offense for which Allen was
found guilty and sentenced, and sentencing judges are entitled to find the existence of a
previous conviction in the context of determining an appropriate conditional release term,
Allen does not have the right to have the existence of the Illinois conviction s determined
by a jury.
Allen alternatively argues that the district court abused its discretion when it
determined that he was not entitled to an evidentiary hearing before the court to determine
the existence of a predicate offense for the imposition of a lifetime conditional release.
But, und er M inn. R. Crim. P. 27.03 , subd. 9, a motion to correct a sentence neither
“expressly require[s] a hearing, nor . . . require[s] findings of fact.” State v. Masood, 739
N.W.2d 736, 739 (Minn. App. 2007).
The sentencing judge was able to determine that Allen had prior convictions without
impaneling a jury or holding an evidentiary hearing. Because Minn. R. Crim. P. 27.0 3,
subd. 9 does not mandate an evidentiary hearing for a motion to correct a sentence, the
district court did not err when it determined that Allen was not entitled to an evidentiary
hearing on his motion to correct his sentence.

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B. The district court did not abuse its discretion when it determined that Allen’s
sentence did not violate the ex post facto clauses of the United States and
Minnesota Constitutions.

Finally, Allen argues that the district court abused its discretion when it determined
that Allen’s sentence did not violate the ex post facto clauses of the United States and
Minnesota Constitutions.
An ex post facto law is a law that applies to conduct that occurred before the law’s
enactment and that criminalizes or disadvantages an individual affected by it. Weaver v.
Graham, 450 U.S. 24, 28 , 101 S. Ct. 960, 964 (1981). The United States and Minnesota
Constitutions prohibit the enactment of ex pos t facto laws. U.S. Const. art I, § 10; Minn.
Const. art I, § 11. For a statute to be considered an ex post facto law, the statute must: “(1)
punish as a crime an act which was innocent when committ ed; (2) increase the burden of
punishment for a crime after its commission; or (3) deprive one charged with a crime of a
defense that was available when it was committed. ” State v. Manning, 532 N.W.2d 244,
247 (Minn. App. 1995), review denied (Minn. July 20, 1995). However, enhancement
statutes do not alter the penalty imposed for, or increase the burden of, an earlier conviction.
Nichols v. United States, 511 U.S. 738, 747, 114 S. Ct. 1921, 1927 (1994); see also State
v. Willis, 332 N.W.2d 180, 185 (Min n. 1983) (determining that an amendment to a DWI
law that allowed past criminal convictions to enhance present crimes merely “increased the
possible penalty for the latest crime” and does not punish the past crime).
The district court, in considering Allen’s motion to correct his sentence, concluded
that Allen was subject to a lifetime conditional release under Minn. Stat. § 609.3455, subd.
7(b). The 2008 statute stated:

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Notwithstanding the statutory maximum sentence otherwise
applicable to the offense, when the court commits an offender
to the custody of the commissioner of corrections for a
violation of section 609.342, 609.343, 609.344, 609.345, or
609.3453, and the offender has a previous or prior sex offense
conviction, the court shall provide that, after the offender has
completed the sentence imposed, the commissioner shall place
the offender on conditional release for the remainder of the
offender’s life.

Minn. Stat. § 609.3455, subd. 7(b).
A “sex offense” is statutorily defined as “any violation of, or attempt to violate,
section 609.342, 609.343, 609.344, 609.345, 609.3451, 609.3453, or any similar statute of
the United States, this state, or any other state.” Minn. Stat. § 609.3455, subd. 1(h) (2018).
This statute came into effect on August 1, 2005, and applies to any offenses committed on
or after that date. 2005 Minn. Laws Ch. 136, art. 2, § 21, at 3120.
In 2010, Allen was convicted of, and sentenced for, first -degree criminal sexual
assault in violation of Minn. Stat. § 609.342, subd . 1(h)(iii). This conviction subjected
Allen to a mandatory lifetime conditional release under Minn. Stat. § 609.3455, subd. 7(b),
should he have a prior conviction for a sexual offense in Minnesota or any other state. The
record indicates that in 1988, Allen was convicted of two counts of criminal sexual assault
under Illinois’s equivalent of Minn. Stat. § 609.342, subd 1(h)(iii). Allen, 580 N.E.2d at
1293. Accordingly, either of Allen’s Illinois conviction s was an adequate predicate
conviction so as to require a lifetime conditional release under Minn. Stat. § 609.3455,
subd. 7(b). As the requirement of a lifetime conditional release due to his 1988 convictions
only further punishes Allen for his 2010 conviction, and does not increase the burden of

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punishment for his 1988 convictions, imposing a lifetime conditional release on Allen does
not violate the constitutional prohibition against ex post facto laws.
The district court determined that the implementation of Minn. Stat. § 609.3455,
subd. 7(b), was a consequence of Allen’s 2010 conviction and did not further punish Allen
for either of his 1988 convictions. Because the imposition of a lifetime conditional release
was properly predicated on one of his 1988 convictions, we hold that the district court did
not abuse its discretion when it denied Allen’s motion to correct his sentence.
Affirmed.