Mark Anthony Rehm, 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This opinion will be unpublished and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
A20-0479

Mark Anthony Rehm, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 14, 2020
Affirmed
Gaïtas, Judge

Hubbard County District Court
File No. 29-CR-14-68

Mark Rehm, Moose Lake, Minnesota (pro se appellant)

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

Jonathan D. Frieden, Hubbard County Attorney, Park Rapids, Minnesota (for respondent)

Considered and decided by Connolly, Pr esiding Judge; Reyes, Judge; and Gaïtas,
Judge.
U N P U B L I S H E D O P I N I O N
GAÏTAS, Judge
Appellant Mark Anthony Rehm appeals fro m the district court’s order denying his
motion to correct his sentence. In senten cing Rehm for second-d egree criminal sexual
conduct, the district court imposed a lifetime-conditional-release period to follow Rehm’s

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prison sentence because Rehm had a prior sex-offense conviction. Rehm argues this was
error. First, he argues that he did not have a prior sex-o ffense conviction for the purpose
of the lifetime-conditional-release requirement. Second, he contends that the sentencing
judge violated his constitutional right to a jury trial by failing to convene a jury to determine
whether he had a prior sex-offense conviction. Third, he argues that using a prior
conviction to enhance his sentence violated his constitutional protection against ex post
facto punishment. Finally, he alleges that the district court erred in denying an evidentiary
hearing on his motion to correct his sentence. We affirm.
FACTS
In January 2014, Rehm was charged with four counts of second-degree criminal
sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2012), each alleging
sexual contact with a child under age 13. Th e parties reached a plea agreement pretrial.
Rehm agreed to plead guilty to a single count of second-degree criminal sexual conduct,
and in exchange, the state agre ed to dismiss the remaining th ree charges and to withdraw
its Blakely motion for an upward sentencing departure. 1 The state indicated that it would
seek a sentence at the top of the presumed sentencing guidelines range. After Rehm

1 The United States Supreme Court has held that courts may not impose a sentence beyond
the statutory maximum unless a jury determines additional facts, beyond those reflected in
a jury’s guilty verdict or a defendant’s guilty plea, that support an upward sentencing
departure. State v. Shattuck, 704 N.W.2d 131, 140-42 (Minn. 2005) (applying Blakely v.
Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004); Apprendi v. New Jersey ,
530 U.S. 466, 466, 120 S. Ct. 2348, 2350 (2000)). A “ Blakely motion” commonly refers
to the state’s notice of intent to seek an aggravated sentence. Minn. R. Crim. P. 7.03; see
Minn. R. Crim. P. 1.04(d).

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pleaded guilty, the district court ordered a presentence investigation (PSI) and scheduled a
separate sentencing hearing.
The PSI shows that Rehm was adjudicated delinquent of first-degree criminal sexual
conduct in 2001 as a juvenile and convicted of third-de gree criminal sexual conduct in
2004 as an adult. The criminal history worksheet also confirmed Rehm’s 2004 conviction.
At Rehm’s sentencing hearing, defens e counsel acknowledg ed that the PSI
recommended the imposition of a lifetime-conditional-release term as required by law. The
district court also informed Rehm that lifet ime conditional release a pplied, stating, “As
noted by the [criminal history] worksheet a nd by your counsel, you were subject to a
conditional release requirement that applies for the rest of your life.” The district court
sentenced Rehm to 78 months in prison with lifetime conditional release to follow.
In December 2019, Rehm, representing hi mself, moved for a corrected sentence
under Minnesota Rule of Criminal Procedur e 27.03, subdivision 9, and requested an
evidentiary hearing. The state opposed Rehm ’s motion. The district court denied the
motion and declined to hold an evidentiary hearing.
This appeal followed.
D E C I S I O N
“This court will not reverse the district c ourt’s denial of a motion brought under rule
27.03, subdivision 9, to correct a sentence, unless the district court abused its discretion or
the original sentence was unauthorized by law.” State v. Greenough, 915 N.W.2d 915, 918
(Minn. App. 2018) (quotation omitted). Whether a sentence properly adheres to applicable
statutes and sentencing guidelines is a question of law subject to de novo review. State v.

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Williams, 771 N.W.2d 514, 520 (Minn. 2009). “Generally, we afford district courts great
discretion in the imposition of sentences, a nd we will reverse a se ntencing decision only
when a district court abuses its discretion.” State v. Washington , 894 N.W.2d 168, 172
(Minn. App. 2017) (quotation omitted), aff’d, 908 N.W.2d 601 (Minn. 2018). A district
court abuses its discretion by misapplying the law. State v. Hoskins, 943 N.W.2d 203, 211
(Minn. App. 2020). And a sentence is una uthorized by law when it conflicts with
governing statutes and sentencing guidelines. Greenough, 915 N.W.2d at 918.
Rehm raises four issues on app eal. We address each in turn.
I. The district court correctly sentenced Rehm to conditional release for life.

The Minnesota Legislature has the “exclu sive authority to define crimes and
offenses and the range of the sentences or pu nishments for their violation.” Minn. Stat.
§ 609.095(a) (2018). District courts must fo llow state statutes, sent encing guidelines, or
other applicable law when sentencing a criminal defendant. State v. Noggle, 881 N.W.2d
545, 547 (Minn. 2016). If a sentence is unauthorized by law because it exceeds the limits
established by the legislature, the district c ourt may correct that sentence “at any time.”
Minn. R. Crim. P. 27.03, subd. 9.
Minnesota law requires that certain first- time criminal-sexual-conduct offenders be
placed on conditional release for ten years. Minn. Stat. § 609.3455, subd. 6 (2012). If such
an offender later receives another sex-offens e conviction, the firs t conviction becomes a
“prior sex offense convictio n” and the district court must impose lifetime conditional
release in sentencing the new offense. Id., subds. 1(g)-(h), 7(b) (2012). The plain language
of this statute affords the district court no discretion. Id., subd. 7(b) (“[T]he [district] court

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shall . . . place the offender on conditional release for the remainder of the offender’s life.”
(emphasis added)).
Rehm claims that his sentence is unauthor ized by law because he did not have a
prior sex-offense conviction that allowed the district court to impose lifetime conditional
release. He appears to argue that the dist rict court erroneously used a prior juvenile
adjudication, and not a conviction, in determining the applicable conditional-release term.
The state contends that the district court was required to impose lifetime conditional
release because Rehm was convicted of third-degree criminal sexual conduct in 2004—as
an adult—before he was convicted and sent enced in 2014 for se cond-degree criminal
sexual conduct. For that reason, the st ate argues lifetime conditional release was
mandatory.
The state is correct. As noted, under Minnesota law, a sentencing court is obligated
to impose lifetime conditional release when sentencing a defendant with a prior conviction
for selected criminal-sexual-conduct offenses . Minn. Stat. § 609.3455, subds. 1(g)-(h),
7(b). Rehm was convicted of third-degree criminal sexual conduct in 2004, which qualifies
as a prior sex-offense convic tion for the purpose of the statutory conditional-release
requirement. Id., subd. 1(h) (defining prior sex-offense conviction to include third-degree
criminal sexual conduct in violation of Minn. Stat. § 609.344). Both the criminal history
worksheet and PSI reflect the 2004 conviction. And the sentencing hearing transcript
confirms that the district court relied on th e criminal history worksheet in determining
Rehm’s sentence. Rehm’s counsel similarl y acknowledged that the PSI contemplated
lifetime conditional release and did not challe nge this recommendation. Thus, the record

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supports the district court’s finding that Rehm had a prior sex-offense conviction from
2004 when he was sentenced on this matter in 2014.
Rehm is correct that a juvenile adjudication may not serve as a predicate “prior sex
offense conviction,” except under limited circumstances. See Minn. Stat. § 609.3455,
subds. 1(b), (g), 7(b) (2012) (precluding juve nile adjudications from “prior sex offense
conviction” definition unless extended juvenile jurisdiction was revoked and the sentence
was executed). But there is no indication that the district court improperly relied on Rehm’s
juvenile adjudication rather than his adult conviction. To the contrary, the court made clear
in sentencing Rehm that it had considered and was relying on the criminal history
worksheet. The criminal hist ory worksheet does not list any juvenile adjudications, only
Rehm’s 2004 adult conviction for third-degree criminal sexual conduct and other unrelated
crimes. The worksheet also states, “Lifetim e conditional release due to prior crim sex
conviction.”
We conclude that the district court correctly sentenced Rehm to lifetime conditional
release. Rehm’s 2004 convict ion qualifies as a “prior sex offense conviction” and
Minnesota law therefore mandated conditional release for life. See Minn. Stat. § 609.3455,
subds. 1(g)-(h), 7(b).
II. The sentencing court properly used Re hm’s prior conviction to impose lifetime
conditional release without a Blakely jury determination.

The Sixth Amendment guarantees those a ccused of a crime the right to a jury
determination of guilt for the crime charged, beyond a reasonable doubt. United States v.
Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 2313 (1995). The United States Supreme

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Court has refined this right in holding that “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum, other than the fact of a prior conviction , must
be submitted to a jury and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 466,
120 S. Ct. at 2350 (emphasis added). The “statutory maximum” is the maximum sentence
that may be imposed solely from the facts di rectly implicated by the jury’s verdict or
admitted by the defendant. Blakely, 542 U.S. at 303, 124 S. Ct. at 2537.
Rehm argues that a jury, not the district court, must determine the existence of his
prior conviction for the purpose of imposing lifetime conditional release. He contends that
the district court violated his constitutional ri ght to a jury trial by enhancing the term of
conditional release from ten years to lifetime without a jury determ ination on the facts
underlying the enhancement.
Rehm’s arguments rest on an inaccurate interpretation of the law, however. “The
Apprendi/Blakely rule requires that facts used to in crease a defendant’s sentence beyond
the statutory maximum provided for the offense must be found by a jury or admitted by the
defendant.” State v. McFee , 721 N.W.2d 607, 609 (Minn. 2006). Even so, “[p]rior
convictions are a well-recogni zed exception to the rule.” Id. This exceptio n allows the
district court to recognize a defendant’s pr ior conviction at sentencing, unless the prior
conviction is an element of the instant offense. State v. Her, 862 N.W.2d 692, 698 (Minn.
2015) (explaining the exception “is justified in part by ‘the certainty [of] procedural
safeguards attached to any “fact” of prior conviction.’” (quoting Apprendi, 530 U.S. at 488,
120 S. Ct. at 2362)). But the district court may not go be yond the fact of the prior
conviction itself; doing so tri ggers the need for a jury. Her, 862 N.W.2d at 698, 700

8
(reversing ten-year conditional-release term because defendant was sentenced without a
jury determination that he was a “risk-le vel-III offender,” as required by sentencing-
enhancement statute).
To enhance Rehm’s conditional release to a lifetime term, the district court—and
not a jury—made a factual determination that Rehm had a prior qualifying conviction.
Rehm was not entitled to have a jury make that factual determination. The existence of the
prior conviction was not an element of the offense. And the decision about whether Rehm
had a qualifying prior conviction fell within the narrow prior-conviction exception to
Blakely. Thus, no jury trial was required on this issue. The district court did not err in
making the determination that Rehm had a prior sex-offense conviction and imposing
lifetime conditional release.
III. Rehm’s lifetime conditional release is not an ex post facto violation.

Ex post facto laws are prohibited under the federal and state constitutions. U.S.
Const. art. I, § 10; Minn. Const. art. I, § 11. “To fall within the ex post facto prohibition,
a law must be [1] retrospective—that is, it must apply to events occurring before its
enactment—and [2] it must disadvantage the offender affected by it.” Jones v. State, 883
N.W.2d 596, 600 (Minn. 2016) (quoting Hankerson v. State, 723 N.W.2d 232, 241 (Minn.
2006)). A law may disadvantage a defendant by (1) criminalizing an act that was innocent
when performed, (2) enhanc ing the punishment of a crime after its commission,
(3) depriving the accused of a previously availa ble defense, or (4) modifying the rules of
evidence so as to lower the burden of proof required to establish guilt than was previously
required. See id.

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Rehm claims that his lifet ime conditional release is an ex post facto punishment
because his 2004 prior convic tion—the qualifying prior conv iction that triggered the
lifetime term—predates the enactment of the conditional-release statute, section 609.3455,
subdivision 7(b). In chronological order, Rehm was conv icted of third-de gree criminal
sexual conduct in 2004, section 609.3455 was en acted the next year, and nine years later
Rehm was convicted of second-degree criminal sexual conduct in this case for conduct that
occurred between September 2013 and January 2014. See 2005 Minn. Laws ch. 136, art.
2, § 21 at 932 (codified at Minn. Stat. § 609.3455, subd. 7(b) (2006)). The state responds
that Rehm “was not punished anew in 2014 for his offense in 2004. [He] was instead
punished for his 2014 offense wi th notice of the consequences of his actions ,” and thus
Rehm’s prior conviction was not retrospectively enhanced.
We agree with the state. The law in this area is well settled. “The use of prior
convictions to increase punishment for an underlying substantive offense committed after
the effective date of a statute providing for increased penalties does not violate the ex post
facto provisions of either the state or federal constitutions.” State v. Willis, 332 N.W.2d
180, 185 (Minn. 1983). The district court’ s application of Minn. Stat. § 609.3455, subd.
7(b), did not increase the punishment of Rehm’s prior conviction because “[e]nhancement
statutes . . . do not change the penalty imposed for the earlier conviction.” Nichols v.
United States, 511 U.S. 738, 747, 114 S. Ct. 1921, 1927 (1994). Rather, the district court
increased the penalty of Rehm’s most recent conviction for a crime he committed well after
the enhancement statute took effect. Furthe r, the statute’s enactment put Rehm on notice
that he would be placed on conditional release for life if he ever reoffended and was again

10
convicted of a sex offense enumerated by section 609.3455. See Hankerson, 723 N.W.2d
at 243-44.
The statutory requirement for lifetime c onditional release does not violate the ex
post facto clauses of the state and federal constitutions. Rehm’s challenge to his sentence
on this basis therefore fails.
IV. The district court acted within its dis cretion in denying Rehm’s motion without
an evidentiary hearing.

Again, we will not reverse a district c ourt’s denial of a motion for a corrected
sentence “unless the district court abused its discretion or the original sentence was
unauthorized by law.” Greenough, 915 N.W.2d at 918 (quota tion omitted). Given our
determination that Rehm’s sentence was authorized by law, reversal is inappropriate unless
the district court abused its discretion. See id. Thus, we turn our attention to the substance
of Rehm’s motion and consider whether the district court abused its discretion in denying
a hearing.
Rehm claims that the district court erre d by depriving him of an evidentiary hearing
on his motion for a corrected sentence because “[m]aterial facts are in dispute.” He seeks
both an evidentiary hearing and to impanel a jury for a single purpose—to establish the
existence of his prior conviction. But as discussed, a jury determination is unnecessary to
establish Rehm’s prior conviction. And an evidentiary hearing is not required on a motion
for a corrected sentence. See Minn. R. Crim. P. 27.03, subd. 9; State v. Masood , 739
N.W.2d 736, 739 (Minn. App. 2007) (affirming denial of mo tion for corrected sentence
that sought jury determination on fact not implicated by Blakely/Apprendi rule). Thus, the

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district court did not abuse its discretion in denying Rehm’s motion without an evidentiary
hearing.2
Affirmed.

2 Rehm’s brief to this court suggests that his motion should have been treated as a petition
for postconviction relief under Minn. Stat. § 590.04 (2018). See, e.g., Johnson v. State ,
877 N.W.2d 776, 779 (Minn. 2016) (discussing propriety of a district court treating a
motion for corrected sentence as a postconviction petition when the movant raises more
issues than just the unauthorized sentence). But even if considered a postconviction relief
petition, the district court still did not err in summarily dismissing all relief requested
without an evidentiary heari ng. Rehm’s “petition and th e files and records of the
proceeding conclusively show that [he] is entitled to no relief” as a matter of law. Minn.
Stat. § 590.04, subd. 1 (emphasis added). As a result, we conclude that no error resulted
from denying Rehm a hearing.