State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0488

State of Minnesota,
Respondent,

vs.

Terry Allen Stewart,
Appellant.

Filed January 11, 2021
Affirmed
Reilly, Judge

Otter Tail County District Court
File No. 56-CR-19-2678

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

Michelle M. Eldien, Otter Tail County Attorney, Benjamin G. A. Olson, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Presiding Judge; Bratvold, Judge; and Cleary,
Judge.*

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

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NONPRECEDENTIAL OPINION
REILLY, Judge
Appellant challenges his conviction for failing to register as a predatory off ender,
arguing that his guilty plea was invalid because his requirement to register was
unconstitutional and violates separation-of-powers principles. We affirm.
FACTS
Appellant Terry Allen Stewar t is required to register as a predatory offender .
Appellant’s obligation to register arises out of criminal charges for assault, burglary,
kidnapping, and damage to property. In June 2009, appellant pleaded guilty to assault and
the remaining charges were dismissed. Under the registration requirements , appellant
needed to submit paperwork to the Minnesota Bureau of Criminal Apprehension (the BCA)
stating his primary address. In July 2019, appellant registered a primary address in Fergus
Falls, Minnesota. After a traffic stop in August 2019, police of ficers opened an
investigation to determine whether appellant lived at his registered address. Officers
learned that appellant was not living at the address registered with the BCA , which
belonged to appellant’s wife’s grandparents. The homeowners told officers that appellant
had not been to their home for at least one year.
Based on this information, respondent State of Minnesota charged appellant with
failing to register as a predatory offender in violation of Minn. Stat. § 243.166, subd. 5(a)(1)
(Supp. 2019). In November 2019, appellant pleaded guilty to the offense. Appellant
acknowledged that he did not notify law enforcement of his true address and knew that, by

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withholding this information, he was failing to fulfill his registration requirements. The
district court entered judgment of conviction and imposed sentence. This appeal follows.
DECISION
Appellant seeks to withdraw his guilty plea. “A defendant does not have an absolute
right to withdraw a valid guilty plea.” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007).
After sentencing, a defendant may withdraw a guilty plea only by establishing that
“withdrawal is necessary to correct a manifest injustice.” Id. (quoting Minn. R. Crim. P.
15.05, subd. 1). A manifest injustice arises when a guilty plea is invalid. State v. Raleigh,
778 N.W.2d 90, 94 (Minn. 2010). A guilty plea is valid if it is intelligent, voluntary, and
accurate. Id. “A defendant bears the burden of showing his plea was invalid.” Id. We
review the validity of a guilty plea de novo. Id.
Appellant argues that his guilty plea is invalid because the registration statute is
unconstitutional. While appellant did not raise this issue to the district court , a party may
challenge the validity of a plea for the first time in a direct appeal when the grounds for the
challenge do not go outside the record. State v. Newcombe, 412 N.W.2d 427, 430 (Minn.
App. 1987), review denied (Minn. Nov. 13, 1987). The constitutionality of a statute
presents a question of law, which we review de novo. State v. Hensel, 901 N.W.2d 166,
170 (Minn. 2017). “We presume that Minnesota statutes are constitutional and will strike
down a statute as unconstitutional only if absolutely necessary.” State v. Cox, 798 N.W.2d
517, 519 (Minn. 2011). “To prevail, a party challenging the constitutionality of a statute
must demonstrate beyond a reasonable doubt that the statute violates a constitutional
provision.” Id.

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The registration statute provides that a person “shall register” as a predatory
offender if the person is charged and convicted of a “felony violation of or attempt to
violate, or aiding, abetting, or conspiracy to commit” certain enumerated predatory
offenses. Minn. Stat. § 243.166, subd. 1b(a)(1) (Supp. 2019). Additionally, a person must
register if the person is charged with an enumerated felony offense and is “convicted of or
adjudicated delinquent for that offense or another offense arising out of the same set of
circumstances.” Id. One of the se enumerated offenses is kidnapping. Id., subd.
1b(a)(1)(ii). Appellant acknowledges that he is required to register as a result of his assault
and kidnapping charges from 2009. Under the penalty provision of the statute, a person
who “knowingly commits an act or fails to fulfill a requirement that violates any provision
of this section . . . is guilty of a felony.” Id., subd. 5(a)(1)-(2) (Supp. 2019).
I. Substantive Due Process
Appellant argues that the registration statute violates his substantive -due-process
rights. The United States and Minnesota Constitutions provide that the government cannot
deprive a person of “life, liberty, or property without due process of law.” U.S. Const.
amend. XIV, § 1; Minn. Const. art. I, § 7.
Appellant argues that the registration statute infringes on his right to the
presumption of innocence. The presumption of innocence applies to statutes that are
punitive, or criminal, in nature. State v. Halvorson, 181 N.W.2d 473, 477-78 (Minn. 1970).
Appellant argues that the statute is punitive. Boutin v. LaFleur, 591 N.W.2d 711 (Minn.
1999) informs our analysis. In that case, the defendant registered as a predatory offender
and then sought a declaration that the registration requirement violated his constitutional

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rights. Id. at 714. The supreme court held that the registration requirements of section
243.166 are regulatory, rather than punitive or criminal, in nature. Id. at 717. Boutin also
held that the statute did not implicate fundamental ri ghts, was rationally related to the
legitimate state interest of solving crimes, and did not violate a registrant’s substantive -
due-process rights. Id. at 717-18.
Appellant acknowledges the Boutin holding but asserts that “the statute has morphed
dramatically” since the supreme court’s 1999 decision. Appellant is correct that the
registration requirements have mushroomed since 1999. And the Minnesota Legislature
continues to alter the registration statute today. For example, at the time Boutin was
decided, the law required the registrant to provide “a statement in writing signed by the
person, giving information required by the bureau of criminal apprehension, a fingerprint
card, and [a] photograph,” to register with the law enforcement authority where the person
resides, and to annually “mail [a] signed verification form back to [the BCA] within ten
days after receipt of the form, stating on the form the current and last address of the person.”
Minn. Stat. § 243.166, subd. 4(a), (c)(2) (1999). Now, a registrant must also provide a
“biological specimen for DNA,” “a written consent form signed by the person allowing a
treatment facility or residential housing unit or shelter to release information to a law
enforcement officer about the person’s admission to, or residence in, a treatment facility or
residential housing unit or shelter ,” “the person ’s primary address,” “ all of the person’ s
secondary addresses in Minnesota, including all addresses used for residential or
recreational purposes,” “the addresses of all Minnesota pr operty owned, leased, or rented
by the person,” “the addresses of all locations where the person is employed,” “the

6
addresses of all schools where the person is enrolled,” “the year, model, make, license plate
number, and color of all motor vehicles owned or regularly driven by the person,” “the
expiration year for the motor vehicle license plate tabs of all motor vehicles owned by the
person,” and “all telephone numbers including work, school, and home and any cellular
telephone service.” Minn. Stat. § 243.166, subds. 4(a), 4a(1)-(8) (Supp. 2019). The statute
also covers many more criminal offenses, creates more severe penalties for violations, and
requires law enforcement agents to distribute this inf ormation to hospitals or health care
facilities provid ing care to a registrant. Id., subds. 1b (enumerating offenses) , 4b(c)
(providing that law enforcement authorities “shall notify” health care administrators of
registrant’s demographic and personal information), (d) (providing that upon admission of
an offender, a health care facility “shall distribute” a registrant’s demographic and personal
information to all residents of the facility), 5 (listing criminal penalties) (Supp. 2019).
We are sensitive to appellant’s argument that the registration statute has ballooned
since 1999. But this court “is bound by supreme court precedent” and must follow explicit
holdings of the supreme court. State v. Curtis, 921 N.W.2d 342, 346 (Minn. 2018). Boutin,
which remains precedential, holds that the registration statute does not violate a registrant’s
substantive-due-process rights. 591 N.W.2d at 717 -18. And t his court is also bound by
the published decisions of this court. State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App.
2010) (stating this court is “bound by” both supreme court precedent and published
appellate court opinions), review denied (Minn. Sept. 21, 2010). This court recently
acknowledged the Boutin holding and reiterated that “[w]hile the registration requirements
have expanded since Boutin was decided, it remains controlling precedent.” Thibodeaux

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v. Evans, 926 N.W.2d 602, 608 (Minn. App. 2019), review denied (Minn. June 26, 2019),
cert. denied, 140 S. Ct. 1136 (2020); see also Bedeau v. Evans, 926 N.W.2d 425 (Minn.
App. 2019) (holding that registration statute did not violate substantive- or procedural-due-
process rights, did not burden constitutionally-recognizable interests, and did not violate
separation-of-powers doctrine).
Given the precedential authority of the Minnesota Supreme Court and this court, we
must hold that the registration statute is not punitive and therefore does not implicate
appellant’s substantive-due-process rights.
II. Procedural Due Process
Appellant also argues that the statute violates his procedural-due-process rights. In
a procedural-due-process challenge, we first determine whether the government deprived
a person of a protectable liberty interest, and, if so, we “determine whether the procedures
followed by the government were constitutionally sufficient.” Rew v. Bergstrom , 845
N.W.2d 764, 785 (Minn. 2014) (quotation omitted).
Appellant argues that his procedural -due-process rights were violated under the
“stigma-plus” doctrine. This doctrine provides that a liberty interest is implicated where
(1) there is a loss of reputation, (2) which “is coupled with the loss of some other tangible
interest.” Boutin, 591 N.W.2d at 718. A “recognizable interest” is a liberty or property
interest that receives constitutional protection under due-process analysis. Id. (citing Paul
v. Davis, 424 U.S. 693, 710, 96 S. Ct. 1155, 1165 (1976)).
Appellant asserts that he suffered a loss of reputation and a loss of other tangible
interests as a result of the registration requirement. Caselaw recognizes that “being labeled

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a predatory offender is injurious to one’s reputation and satisfies the ‘sti gma’ requirement
of the stigma -plus test.” Thibodeaux, 926 N.W.2d at 608 (citing Boutin, 591 N.W.2d at
718). Even so, Thibodeaux also held that the predatory-offender label does not satisfy the
“plus” requirement of the test. Id.
While the registration requirements in 1999 when the statute was first enacted may
have been limited concerning a loss of reputation, we are sympathetic to appellant’s
argument that the consequences may now be reaching a tipping point concerning the loss
of other tangible liberty interests. Boutin concluded that being labeled a predatory offender
is injurious to a registran t’s reputation. 591 N.W.2d at 7 18. But Boutin also determined
that a protectable liberty interest was not at stake because “there is no recognizable interest
in being free from having to update address information,” and the stigma-plus doctrine did
not apply. Id. As discussed above, the registration requirements have significantly
expanded since 1999. For example, a registrant must now register with law en forcement
where the registrant works or attends school, must provide vehicle information, and must
consent to law enforcement releasing data to treatment facilities or residential housing
units. Minn. Stat. § 243.166 (Supp. 2019). Additionally, law enfor cement agents “shall”
distribute the registrant’s inf ormation to hospitals or health care facilities providing
treatment. Id., subd. 4b(c), (d). A registrant may also face difficulty finding housing and
employment as a result of the registration requirem ent, as the housing and employment
options for a registrant are greatly restricted. See Stacy L. Bettison, The New Scarlet Letter:
Is Minnesota's Predatory Offender Registry helping or hurting? , Bench & Ba r of Minn.,
Dec. 2019, at 16, 18 -19 (stating that the registry law is “so hostile” that it “impacts

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everything that a human needs to survive: stable housing, employment, community
support, [and] relationships”). These added consequences may be nearing the loss of other
tangible liberty interests, as required for a stigma-plus finding.
Yet, we are bound to follow Boutin and the published decisions of this court. Based
on controlling precedent, we must conclude that appellant has not established a violation
of his procedural-due-process rights under the “stigma-plus” doctrine.
III. Sixth Amendment Rights
Appellant argues that the registration statute violates his Sixth Amendment rights
under the Constitution. The Due Process Clause of the Fourteenth Amendment guarantees
criminal defendants a meaningful opp ortunity to present a complete defense , and the
Compulsory Process Clause of the Sixth Amendment encompasses the defendant’s right to
call witnesses and the right to call oneself as a witness. State v. Holloway, 905 N.W.2d 20,
24 (Minn. App. 2017), aff’d, 916 N.W.2d 338 (Minn. 2018).
Appellant contends that because he was required to register, without the right to a
jury trial, he did not have an opportunity to confront witnesses at a jury trial. Yet, the rights
afforded under the Sixth Amendment are not unlimited and “the Sixth Amendment does
not by its terms grant to a criminal defendant the right to secure the attendance and
testimony of any and all witnesses.” United States v. Valenzuela-Bernal, 458 U.S. 858,
867, 102 S. Ct. 3440, 3446 (1982) . Moreover, the United States and Minnesota
Constitutions provide that this right applies only to “criminal prosecutions.” U.S. Const.
amend. VI; Minn. Const. art. I, § 6. As discussed above, Boutin holds that the registration
statute is not criminal in nature. 591 N.W.2d at 717. Because Boutin remains controlling,

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we must conclude that appellant has not sufficiently alleged a violation of his Sixth
Amendment rights.
IV. Separation-of-Powers Doctrine
Appellant claims the registration statute violates the separation-of-powers doctrine.
This doctrine generally prohibits each branch of government from intruding upon another’s
unique constitutional functions. State v. T.M.B., 590 N.W.2d 809, 812 (Minn. App. 1999),
review denied (Minn. June 16, 1999). The Bedeau court held that the registration statute
“does not implicate the separation-of-powers doctrine” because the prosecutor’s discretion
to charge offenses that could require registration as a predatory offender “is checked by the
judiciary” by requiring a judicial determination of probable cause for the charged offense ,
and because “registration is a collateral consequence of a conviction.” 926 N.W.2d at 434.
We question whether this situation remains tenable. The registration statute
“applies to persons charged with certain crimes even if they are not convicted .” State v.
Lopez, 778 N.W.2d 700, 703 (Minn. 2010). A person must register as a predatory offender
if the person “was charged” with a qualifying crime, even if the prosecutor later dismisses
that charge. Minn. Stat. § 243.166, subd. 1b(a)(1). The discretion to bring criminal charges
“rests almost entirely with the prosecutor.” State v. Streiff, 673 N.W.2d 831, 836 (Minn.
2004). And the prosecutor h as the discretion to dismiss charges. Further, “unless the
prosecutor abuses his or her discretion or demonstrates improper intent, the judiciary is
powerless to interfere with the prosecutor ’s charging authority.” Eason v. State , 950
N.W.2d 258, 266 (Mi nn. 2020) (quotation omitted). We recognize that criminal charges
are often dismissed as part of a plea negotiation. But charges also can be dismissed because

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the prosecutor does not have the evidence to prove the charge at trial. In that circumstance,
the person would still have to register even if he or she could not have been convicted at
trial, if the dismissed charge was a qualifying crime. Here, although appellant’s kidnapping
charge was dismissed, he was still required to register as a predatory offender based on a
dismissed charge. Yet, as stated, we are bound by the published cases of this court. We
therefore reject appellant’s argument that the registration statute violates the separation-of-
powers doctrine.
We are sympathetic to appellant’s argument that the registration requirements have
ballooned since 1999. But we are bound to follow Minnesota Supreme Court cases and
published opinions of this court unless a different rule of law is announced. See M.L.A.,
785 N.W.2d at 767 (recognizing that this court is “bound by” both supreme court precedent
and published appellate court opinions) . As an error-correcting court, it is not our role to
alter or modify existing law. See State v. Haywood , 886 N.W.2d 485, 491 (Minn. 2016)
(“It is not for the [lower] courts to make, amend, or change the statutory law, but only to
apply it.” (quotation omitted)). Appellant’s arguments are better directed to the Minnesota
Supreme Court or to the legislature. See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.
App. 1987) (“[T]he task of extending existing law falls to the supreme court or the
legislature, but it does not fall to this court.”), review denied (Minn. Dec. 18, 1987).
Because precedential and bindi ng caselaw provides that the registration
requirements of Minn. Stat. § 243.166 are regulatory rather than punitive or criminal in
nature, we must hold that appellant has not established a violation of his constitutional

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rights. And without a showing that a manifest injustice occurred, appellant has no right to
withdraw his guilty plea under rule 15.05.
Affirmed.