John Kotowski, Appellant,

This opinion is nonprecedential except as provided by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
A20-1621

John Kotowski,
Appellant,

vs.

Jodi Harpstead, Commissioner of Human Services, et al.,
Respondents,

Paul Schnell, Commissioner of Corrections,
Respondent.

Filed July 6, 2021
Affirmed
Hooten, Judge

Carlton County District Court
File No. 09-CV-20-1358

John J. Kotowski, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney Genera l, Rachel Bell-Munger, Assist ant Attorney General, St.
Paul, Minnesota (for respondent Schnell)

Keith Ellison, Attorney General, Anthony R. Noss, Assistant Attorney General, St. Paul,
Minnesota (for respondents Harpstead and Johnston)

Considered and decided by Hooten, Presiding Judge; Co nnolly, Judge; and
Bratvold, Judge.

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NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this appeal from the district court’s denial of his petition for a writ of habeas
corpus, appellant challenges the district court’s order determining that respondent
Commissioner of the Department of Corrections (DOC) 1 did not err by recalculating the
start date of his conditional-release term and denying his request for an evidentiary hearing.
We affirm.
FACTS
In 1998, a jury found appellant John Jo seph Kotowski guilty of two counts of
criminal sexual conduct in th e first degree and one count of kidnapping for offenses
committed in 1997. He was se ntenced to concurrent prison sentences of 292 months for
the criminal sexual conduct conviction, 57 months for the kidnapping conviction, and five
years of conditional release under Minn. Stat. § 609.346, subd. 5 (1996).2
In July 1998, the district court amended Kotowski’s sentence, after recognizing that
he had previously been convicted of criminal sexual conduct in 1987. Because Minn. Stat.
§ 609.346 (1996) required a ten-year conditional-release term for individuals convicted of
a second sex offense, the district court orde red that Kotowski “be placed on conditional

1 Other respondents are officials with the Minnesota Department of Human Services
(DHS). Kotowski is currently committed to DHS’s Minnesota Sex Offender Program
(MSOP). The DHS respondents did not file a brief because Kotowski does not challenge
the lawfulness of the MSOP confinement.
2 The statutory provision for conditional-rele ase terms based on sex offenses has been
recodified a number of times since 1996; the current provision is found in Minn. Stat.
§ 609.3455, subd. 6 (2020).

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release for 10 years, minus any time served on supervised release, after [he] ha[d]
completed the sentence imposed.”
When Kotowski was sentenced, the DOC calculated the expiration date of an
offender’s sentence accordin g to the principle—supported by then-current Minnesota
caselaw—that a conditional-release term runs concurrently with any supervised-release
term. See State v. Koperski , 611 N.W.2d 569, 573 (Minn. App. 2000) (“[S]upervised
release and conditional release periods must run concurrently.”), abrogated by State ex rel.
Pollard v. Roy, 878 N.W.2d 341 (Minn. App. 2016), vacated and remanded (Minn. Dec.
27, 2016), aff’d on similar grounds, 2017 WL 1833209 (Minn. App. May 8, 2017), review
denied (Minn. July 18, 2017). Applying this principle to Kotowski’s sentence, the DOC
projected that Kotowski’s supervised-rel ease term would expire in 2022 and his
conditional-release term would expire in 2023.
In April 2013, the DOC recalculated the projected expiration da te of Kotowski’s
conditional-release term in light of two decisions from this court. In State ex rel. Peterson
v. Fabian , we held that a conditional-release term imposed for failure to register as a
predatory offender under Minn. Stat. § 243.166, subd. 5a (2 008), runs consecutively to,
rather than concurrently with , the offender’s supervised release term. 784 N.W.2d 843,
846 (Minn. App. 2010). In State ex rel. Cote v. Roy, a nonprecedential order opinion, we
concluded that consecutive calculation also a pplied to conditional-release terms for sex
offender convictions imposed under Minn. Stat . § 609.109, subd. 7( a) (2002). No. A11-
0727 (Minn. App. Nov. 15, 2011), review denied (Minn. Jan. 25, 2012). Based on these
cases, the DOC clarified that Kotowski’s co nditional-release term would begin after his

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supervised-release term concl uded and that his conditional-re lease term would expire in
2032.
Kotowski was released from prison and pl aced on supervised release in November
2014. Kotowski’s supervised-release term expires in February 2022, and his conditional-
release term is currently set to expire in February 2032. State law, however, provides that
an offender in Kotowski’s situation, who ha s a previous sex offense, “shall be placed on
conditional release for ten years, minus the time the person served on supervised release.”
Minn. Stat. § 609.346, subd. 5(a) (emphasis added).3 Accordingly, the DOC indicated in
its briefing to the district court that it will conduct an audit of Koto wski’s sentence after
his supervised-release term expires and will reduce the duration of his conditional-release
term by the time served on supervised release.
In August 2020, Kotowski pe titioned pro se for a writ of habeas corpus, arguing that
the DOC erroneously calculated his conditional-release term. The district court denied his
petition without a hearing because it determined that, as a matter of law, the DOC properly
calculated his conditional-release term in accordance with our decisions in Peterson and
Cote. Kotowksi appeals.

3 Because the applicable statutory language reduces the conditiona l-release term only by
“the time the person served on supervised release,” and not the “supervised-release term,”
Kotowski would not receive credit towards his conditional-release term for time his release
is revoked during the supervised-release term. See State ex rel. Duncan v. Roy, 887 N.W.2d
271, 278 (Minn. 2016).

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DECISION
A writ of habeas corpus is a statutory ci vil remedy available to obtain relief from
unlawful imprisonment or restraint. Minn. Stat. § 589.01 (2020). On review of a denial of
a petition for a writ of habeas corpus, the district court’s findings “are entitled to great
weight and will be upheld if reasona bly supported by the evidence.” Aziz v. Fabian, 791
N.W.2d 567, 569 (Minn. App. 2010). We review questions of law de novo. Id.
I. The district court did not err by find ing that the DOC correctly recalculated
Kotowski’s conditional-release term under Peterson and Cote.

Kotowski argues that his sentence expi red without being amended to include a
conditional-release term and that upon expiration of the sentence, the court lost jurisdiction
to amend it under State v. Purdy . 589 N.W.2d 496, 498 (Minn. App. 1999) (“The
expiration of a sentence operates as a discharge that bars further sanctions for a criminal
conviction.”). Kotowski is mist aken. Before the district court recalculated the projected
expiration date of Kotowski’s conditional-release term in April 2013, his sentence was set
to expire in 2022 when his supervised-release term was projected to expire. Therefore, the
district court recalculated Kotowski’s conditional-release term before his sentence expired,
which does not violate Purdy.
Kotowski also contends that the DOC mi scalculated his conditional-release term
based on Peterson and Cote, which he argues do not apply to his case. Kotowski’s
argument fails. In Peterson, we held that “a conditional-release term for failure-to-register
[as predatory] offenders under Minn. Stat. § 243.166, subd. 5a, is consecutive to a
supervised-release term.” 784 N.W.2d at 846. The basis for our conclusion was our

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interpretation of the plain language of subdivi sion 5a, which stated that “the court shall
provide that after the person has completed the sentence imposed, the commissioner shall
place the person on conditional release for ten years.” Id. (alteration in original). We
concluded that, because “the ‘sentence’ incl udes both the term of imprisonment and the
term of supervised release, the conditional-release term under Minn. Stat. § 243.166, subd.
5a, does not commence until after both the term of imprisonment and the term of supervised
release are completed.” Id.
In Cote, we extended Peterson’s holding to a sex offender subject to a conditional-
release term imposed under Minn. Stat. § 609.109, subd. 7(a). Cote, No. A11-0727. That
statute, like the version of section 243.166 analyzed in Peterson, stated that conditional
release begins “after the person has comple ted the sentence imposed.” Minn. Stat.
§ 609.109, subd. 7(a). The relevant statutory language at issue in Peterson and Cote is
nearly identical. Compare Minn. Stat. § 243.166, subd . 5a (“[A]fter the person has
completed the sentence imposed, the commiss ioner shall place the person on conditional
release.”), with Minn. Stat. § 609.109, subd. 7(a) (“[A]fter the person has completed the
sentence imposed, the commissioner of correcti ons shall place the person on conditional
release.”). Both statutes stated that conditional release begins after the sentence is served,
and our holding in Peterson depended on this clear statutory language. See Peterson, 784
N.W.2d at 846 (“[W]e apply th e clear language of section 2 43.166, subdivision 5a, that
‘the court shall provide that after the person has completed the sentence imposed, the
commissioner shall place the pe rson on conditional release for ten years.’” (alteration in
original)). We concluded in Cote that we could discern no reason for an outcome different

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from the one in Peterson simply because Cote’s conditi onal-release term was imposed
under Minn. Stat. § 609.109, subd. 7(a), rather than Minn. Stat. § 243.166, subd. 5a. No.
A11-0727.
Kotowski’s conditional-release term was imposed under a substantively similar
statute to that at issue in Cote.4 As in Cote, we determined that there was no reason for a
different outcome from Peterson. Moreover, post-Cote cases support the conclusion that
a conditional-release term commences after a person has completed the sentence imposed.
See Duncan, 887 N.W.2d at 274 (upholding the DOC’s 2012 recalculation of a conditional-
release term imposed under Minn. Stat. § 609.109, subd. 7, to run consecutively in light of
Peterson and Cote); Pollard, 878 N.W.2d at 349-50 (abrogating Koperski’s holding that
supervised-release and conditio nal-release periods run conc urrently when addressing a
conditional-release term imposed under Minn. Stat. § 609.3455, subd. 6).
Because the DOC’s recalculation of Koto wski’s conditional-release term is
consistent with the caselaw in Purdy, Peterson, and Cote, the district court did not err by
finding that the DOC’s recalculation was correct.
II. The district court did not err by co ncluding that the DOC did not violate
Kotowski’s due-process rights or the prohibition against ex post facto laws
when it recalculated his conditional-release term.

Kotowski argues that the DOC’s application of the Peterson and Cote decisions to
him violates the prohibition ag ainst ex post facto laws and his due-process rights. We

4 The conditional-release statute was codified at Minn. Stat. § 609.109, subd. 7 (2002),
when Cote was sentenced. That statute wa s superseded by Minn. Stat. § 609.3455, subd.
6, which is currently in effect. See 2005 Minn. Laws ch. 136, art. 2, § 21, at 929-31. The
statutes are substantively similar.

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address Kotowski’s ex post facto claim firs t. Both the United States and Minnesota
Constitutions contain ex post facto clauses that prohibit states from imposing punishment
for an act that was not punishable when it wa s committed or that imposes an additional
punishment to that prescribed. U.S. Const. art. I, § 10; Minn. Const. art. I, § 11; Weaver v.
Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964 (1981); Rew v. Bergstrom, 845 N.W.2d 764,
790 (Minn. 2014). To constitute an ex post facto law, a statute must be a criminal or penal
law, it must not be “merely procedural,” it must “apply to events occurring before its
enactment, and it must disadvantage the offender affected by it.” Weaver, 450 U.S. at 29
n.12, 101 S. Ct. at 964 n.12; State v. Moon, 463 N.W.2d 517, 521 (Minn. 1990).
Kotowski does not challenge a statute or other law imposing a new punishment upon
him. Rather, he challenges both the DOC’s decision to apply the plain language of section
609.346 to his sentence and appellate court de cisions interpreting that same language.
Kotowski relies on multiple nonbi nding cases, which are too numerous to cite, involving
defendants who received more severe punishments for their crimes than were permissible
by law at the time they committed their crimes . Not only are those cases nonbinding on
this court, but also none of those cases resemble this case, where the district court sentenced
Kotowski to the conditional-release term set forth in Minn. Stat. § 609.346, subd. 5 (1996),
which existed at the time he committed hi s 1997 offense. Our decisions in Peterson and
Cote simply clarified the meaning of the statut ory language as used in the then existing
conditional-release statutes, and the DOC applied that clarification to Kotowski. The DOC
did not retroactively apply any law to impo se additional punishme nt on Kotowski, and
therefore Kotowski’s ex post facto argument lacks merit.

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As to Kotowski’s due-process claim, to th e extent that it is based on his objection
to the DOC’s recalculation in light of the Peterson and Cote decisions, his argument is the
same as his ex post facto argument and ag ain fails because no new punishment was
imposed on him. To the extent that Ko towski’s due-process claim is based on the
contention that he was entitled to notice be fore the DOC recalculated his conditional-
release term, that procedural-due-process claim is forfeited because Kotowski makes it for
the first time on appeal. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). In any event,
the argument fails on its merits because Kotowski does not identify any due-process
interest that is violated by the DOC recalc ulating his conditional-re lease term based on
intervening caselaw without advance notice or any state law or authority requiring the DOC
to hold a hearing before recalculating it. See Carrillo v. Fabian , 701 N.W.2d 763, 768
(Minn. 2005) (explaining that, to establish procedural-due-process violation by DOC,
offender must establish that DOC interfered with a protected liberty interest and lacked
procedure to adequately protect that interest). Therefore, the district court did not err by
concluding that the DOC did not violate Kotowski’s due-process rights or the prohibition
against ex post facto laws when it recalculated his conditional-release term
III. The district court did not abuse its di scretion by denying Kotowski’s petition
for a writ of habeas corpus without a hearing.

Kotowski argues that the district court abused its discretion by denying his petition
for a writ of habeas corpus wi thout an evidentiary hearing. An evidentiary hearing on a
habeas petition is unnecessary if a petitioner fails to allege sufficient facts to establish a
prima facie case for relief or if the pe tition does not show a factual dispute. Seifert v.

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Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988 ). Because Kotowski failed to allege
sufficient facts to establish a pr ima facie case for relief and he did not identify a factual
dispute, Kotowski’s petition could be decided as a matter of law and no evidentiary hearing
was necessary. The district court therefore did not err by deciding Kotowski’s habeas
petition without an evidentiary hearing.
Affirmed.