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This opinion is nonprecedential except as provided by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
A20-1356

State of Minnesota,
Respondent,

vs.

Earl Jay Murphy,
Appellant.

Filed May 10, 2021
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-18-3937

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

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Hooten, Pres iding Judge; Slieter, Judge; and Klaphake,
Judge.


 Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal from the district court’ s denial of appellant’s motion to correct
sentence, appellant argues that the district court erred by failing to vacate a lifetime period
of conditional release imposed following his convic tion for two counts of first-degree
criminal sexual conduct. Because appellant was separately convicted and sentenced for
the two counts, the conviction for the firs t count qualified as a “prior sex offense
conviction” requiring lifetime conditional rele ase upon conviction for the second count.
We therefore affirm.
FACTS
Appellant was charged with three counts of criminal sexual conduct after his 13-
year-old daughter informed a pediatrician at Fairview Children’s Hospital that she had been
sexually abused by appellant approximately se ven years earlier. Counts one and two of
the complaint were described as criminal sexual conduct in the first degree, in violation of
Minn. Stat. § 609.342, subd. 1(a) (2016), and count three was described as criminal sexual
conduct in the first degree, in violation of Minn. Stat. § 609.342, subd. 1(h)(iii) (2016).
All three counts were presen ted to the jury. After two full days of deliberation, the
jury informed the district court that, though they had reached unanimous verdicts on counts
two and three, they were “not in unanimous agreement on Count Number 1.” Despite the
defense’s request that the court declare a mistrial, the district court acted pursuant to Minn.
R. Crim. P. 26.03, subd. 20(7 ), accepting a partial verdict of counts two and three,
dismissing count one, and releasing the jury. At the subsequent sentencing hearing, the

3
district court convicted appellant and imposed a sentence of 171 months’ imprisonment on
count three, to be followed by a ten-year peri od of conditional release. The district court
next convicted appellant on count two and imposed the same sentence, to be served
concurrently, followed by a lifetime period of conditional release.
Appellant directly appealed his conviction and sentence in State v. Murphy ,
No. A19-0322, 2020 WL 996737, (Minn. App. Mar. 2, 2020), review denied (Minn. May
19, 2020). In that appeal, appellant raised an issue involving the district court’s imposition
of lifetime conditional release. Id., at *5. Appellant previously argued that neither count
two nor count three could serve as a “prior sex offense conviction” because the date range
for the two offenses overlapped, so it could not be determined whethe r the jury in fact
found him guilty of committing more than one offense of criminal sexual conduct. Id. We
rejected that argument, concluding that appe llant “cannot show that the jury found him
guilty of counts 2 and 3 based on the same conduct . . . . Thus, the district court did not err
by ordering lifetime co nditional release.” Id. We affirmed the imposition of lifetime
conditional release. Id., at *5-6.
Appellant subsequently filed a motion to correct sentence, again seeking an order
vacating his lifetime term of conditional releas e on a new basis: that the district court
entered simultaneous convictions. The district court denied appellant’s motion. This
appeal follows.

4
DECISION
In this second appeal, appellant renews his claim that the district court erred by
imposing a lifetime period of conditional releas e for count two, tho ugh on a different
ground.1 Appellant argues that because he was convicted of the two counts simultaneously,
neither offense could serve as the “prior sex offense conviction” required for the imposition
of lifetime conditional release pursuant to Minn. Stat. § 609.3455, subd. 7(b) (2016). See
State v. Brown, 937 N.W.2d 146, 156 (Minn. App. 2019).
We review a district court’s denial of a motion to correct a sentence pursuant to
Minn. R. Crim. P. 27.03, subd. 9 for an abuse of discretion. See Townsend v. State , 834
N.W.2d 736, 738 (Minn. 2013). “Specifically, [appellate courts] review the district court’s
legal conclusions de novo and its factual findi ngs under the clearly erroneous standard.”
See id.
Pursuant to Brown, “when a district court convicts an offender simultaneously of
multiple sex offenses in the sa me hearing, the offender does not have a prior sex-offense
conviction and is not subject to a lifetime conditional-release term.” Brown, 937 N.W.2d
at 157. Conversely, if the convictions are entered consecutively, the first conviction serves
as a “prior sex offense conviction” fo r the purpose of section 609.3455. State v. Nodes,
863 N.W.2d 77, 82 (Minn. 2015). These convictions may occur during the same hearing,

1 Respondent argues that appellant ’s claims are barred pursuant to State v. Knaffla , 243
N.W.2d 737, 741 (Minn. 1976). However, the procedural bar of Knaffla applies only to
petitions for postconviction relief pursuant to section 590.01, subd. 1, and not to motions
to correct a sentence purs uant to rule 27.03. Washington v. State, 845 N.W.2d 205, 211
(Minn. App. 2014).

5
and no particular length of time must pass between them fo r the first offense to become
“prior.” Id.
Therefore, the question presented is wh ether appellant was convicted of the two
counts simultaneously or consecutively. “A conviction occurs when the district court
accepts and records a verdict of guilty by a jury.” Brown, 937 N.W.2d at 156 (quotation
omitted). By this standard, it is clear that the district court “convicted” appellant of the two
counts consecutively during the sentencing hearing, when it stated:
Earl Jay Murphy, standing convicted by a jury’s verdict of
Count 3, criminal sexual condu ct in the first degree, you are
sentenced to the custody of the Commissioner of Corrections
for a period of 171 months.

. . .

Standing convicted by a jury’s guilty verdict on Count 2,
criminal sexual conduct in the first degree, of an overlapping
time period, you are sentenced to the custody of the
Commissioner of Corrections for a period of 171 months,
concurrent to Count 3. A life time conditional release period
will follow.

(emphasis added). When the district c ourt announced that appellant was “standing
convicted by a jury’s verdict of Count 3,” appellant was convicted of that offense. “[I]n
the next instant [count 3] was no longer a present offense, but was now a past conviction.”
Nodes, 863 N.W.2d at 82. When the district court next announced appellant’s conviction
for count two, that count was the “sole present offense” and count three was the “prior sex
offense conviction,” thus requiri ng lifetime conditional release. Id. Appellant was
convicted of the two offenses consecutively.

6
Appellant argues that he was not “convi cted” during the sentencing hearing but,
instead, when the district court earlier accepted the jury’s partial verdict. Appellant points
specifically to the district court’s statements regarding that partial verdict:
Rule 26.03, subd. 20(7) specifically allows the Court to accept
a partial trial verdict . . . I accepted that partial [verdict]
pursuant to the rule in full belief that this jury as they looked at
us and told us they could never reach a unanimous verdict on
Count 1.

(emphasis added). Appellant points to this wording as evidence that he was convicted
when the district court “accepted” the partial verdict. This argument is not persuasive.
As this court has made clear, a guilty verdict alone is not a “conviction.” State v.
Walker, 913 N.W.2d 463, 467 (Minn. App. 2018). As noted above, conviction requires
that the court “accept[] and record[] a verdict of guilty by a jury.” Brown, 937 N.W.2d at
156 (emphasis added) (quotatio n omitted). “While court-ac cepted guilty pleas, jury
verdicts of guilt, and findings of guilt by a court are often re ferred to as ‘convictions,’ a
formal adjudication of conviction requires more.” State v. Hoelzel, 639 N.W.2d 605, 609
(Minn. 2002). A “conviction” typically requires “[a] conviction appearing in the official
judgment of conviction or in a conviction order entered by the court.” See id. It was only
at sentencing that the district court both note d that appellant was “standing convicted” on
each charge (consecutively to each other) and recorded these convictions in the written
sentencing order and warrant of commitment. As such, the district court, by “accepting”
the partial verdict did not convict appellant because it did not “accept” and “record” a
“verdict of guilty.” Brown, 937 N.W.2d at 156.

7
Appellant was consecutively convicted of the two counts during the sentencing
hearing when the district court acknowledged the findings of guilt by the jury and formally
acknowledged and recorded appellant’s convictions on counts two and three. The district
court did not abuse its discretion by denying appellant’s motion to correct sentence.
Affirmed.