Michael James Rye, petitioner, 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This opinion is nonprecedential except as provided by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
A21-1731

Michael James Rye, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 22, 2022
Affirmed in part, reversed in part, and remanded
Johnson, Judge

Hennepin County District Court
File No. 27-CR-18-24095

Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Gina D. Schulz,
Assistant Public Defenders, St. Paul, Minnesota (for appellant)

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

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

Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
Michael James Rye pleaded guilty to three counts of disseminating child
pornography. He later filed a post-conviction petition to challenge his sentences. We
conclude that the post-conviction court erred by determining that Rye is required to register
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as a predatory offender. We also conclude that the post-conviction court did not err by
rejecting Rye’s other arguments. Therefore, we affirm in part, reverse in part, and remand
for correction of the error concerning registration.
FACTS
Between 2017 and 2018, law-enforcement officers investigat ing the dissemination
of child pornography on peer-to-peer file-sharing websites traced numerous digital images
to Rye’s personal computer. In August 2018, officers seized Rye’s computer pursuant to
a search warrant and found 337 digital files containing child pornography. Rye admitted
that he possessed the files found by the officers and that they contain child pornography.
He also admitted that he made certain files containing child pornography available to others
on peer-to-peer file-sharing websites.
In September 2018, the state charged Rye with eight counts of dissemination of
pornographic work involving a minor, in violation of Minn. Stat. § 617.247, subd. 3(a)
(2016), and three counts of possession of pornographic work involving a minor, in violation
of Minn. Stat. § 617.247, subd. 4(a) (201 8). Each of counts 1 through 8 of the complaint
alleged that Rye disseminated a particular digital file containing child pornography on a
particular date, with the dates ranging from November 9, 2017, to July 30, 2018. Each of
counts 9 through 11 alleged that Rye possessed a digital file containing child pornography
on August 16, 2018.
In January 2019, Rye pleaded guilty to counts 1, 2, and 3, which alleged
dissemination of child pornography. He admitted that he made certain digital files
containing child-pornography available for others to download on November 9, 12, and 13,
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2017. He did not make any admissions concerning any of the other charges. The state
agreed to dismiss the remaining charges. T he parties agreed that the district court would
impose concurrent sentences and that the longest sentence would be an executed sentence
of 54 months of imprisonment.
Consistent with the plea agreement, the district court imposed three concurrent
presumptive sentences: a stayed sentence of 24 months, a stayed sentence of 36 months,
and an executed sentence of 54 months. Rye requested executi on of the two stayed
sentences, and the district court executed them. With respect to each conviction, the district
court imposed a requirement that Rye register as a predatory offender. Rye did not pursue
a direct appeal of his convictions or sentences.
In December 2020, Rye filed a three-page pro se petition for post-conviction relief
and a 64-page handwritten memorandum of law in which he asserted multiple challenges
to his sentence. The post-conviction court forwarded his petition to the office of the state
appellate public defender. See Minn. Stat. § 590.02, subd. 1(4) (2020); Paone v. State, 658
N.W.2d 896, 899-900 (Minn. App. 2003). An assistant state public defender entered an
appearance on Rye’s behalf and filed a supplemental memorandum, which focused on
Rye’s predatory-offender registration requirement. In October 2021, the post-conviction
court issued an order in which it denied Rye’s petition. Rye appeals.
DECISION
I. Registration Requirement
With the assistance of an assistant state public defender, Rye argues that the post-
conviction court erred by ruling that he is required to register as a predatory offender.
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A person must register as a predatory offender if “the person was charged with . . .
a felony violation of . . . any of the following [offenses], and convicted of . . . that offense
or another offense arising out of the same set of circumstances.” Minn. Stat. § 243.166,
subd. 1b(a)(1) (2020). The offense of possession of child pornography—for which charges
were filed but dismissed—is one of the enumerated offenses requiring registration. Id.,
subd. 1b(a)(2)(vii). The parties agree that the offense of dissemination of child
pornography—to which Rye pleaded guilty —is not one of the enumerated offenses
requiring registration. 1 The question on which the parties disagree is whether the
possession charges that were dismissed arose out of “the same set of circumstances” as the
dissemination charges to which Rye pleaded guilty.
That question must be analyzed according to two recent supreme court opinions. In
State v. Lopez, 778 N.W.2d 700 (Minn. 2010), the supreme court explained the meaning
of section 243.166, subdivision 1b(a)(1), as follows:
The “same set of circumstances” provision in the statute
requires registration where the same general group of facts
gives rise to both the conviction offense and the charged

1We question whether the parties’ agreement is an accurate reflection of the
applicable law. Section 243.166 describes one of the enumerated offenses as “possessing
pornographic work involving a minor in violation of section 617.247.” Minn. Stat.
§ 243.166, subd. 1b(a)( 2)(vii). Section 617.247 is entitled “Possession of Pornographic
Work Involving Minors.” S ubdivision 4 of that section criminalizes possession of child
pornography. Subdivision 3 of the same section criminalizes dissemination of child
pornography. In In re Welfare of J.C.L., No. A21-1018, 2022 WL 1210405 (Minn. App.
Apr. 25, 2022), rev. denied (Minn. July 19, 2022), this court stated that dissemination of
child pornography in violation of section 617.247 “is an offense enumerated for predatory
registration” in section 243.166, subdivision 1b(a)(2)(vii). Id. at *5. Nonetheless, for the
limited purposes of this non-precedential opinion, we will accept the parties’ agreement
that dissemination of child pornography is not an enumerated offense, and we will resolve
the issue that the parties have briefed.
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predatory offense. In other words, the circumstances
underlying both must overlap with regard to time, location,
persons involved, and basic facts. Although the conviction
offense need not be based on identical facts to the charged
predatory offense, the facts underlying the two must be
sufficiently linked in time, location, people, and events to be
considered the “same set of circumstances.”

Id. at 706. In that case, two brothers were convicted of aiding and abetting a first- degree
controlled substance crime based on evidence that they sold methamphetamine to a
confidential informant. Id. at 701-02. The brothers also were charged with aiding and
abetting kidnapping based on an allegation that they held the confidential informant and
another person hostage at a later date, but those charges were dismissed. Id. The supreme
court held that the brothers’ drug convictions did not “arise out of the same set of
circumstances” as the kidnapping charges because the sale of drugs occurred ten days
before the alleged kidnapping, the stipulated facts underlying the drug conviction did not
mention the alleged kidnapping, the alleged kidnapping occurred at a different location,
and the persons involved in the alleged kidnapping were somewhat different from the
persons involved in the drug sale. Id. at 706.
In State v. Berry, 959 N.W.2d 184 (Minn. 2021), the supreme court emphasized that
the factors identified in Lopez—“time, location, persons involved, and basic facts” —
should be “read narrowly” and “cannot be applied so broadly as to include merely ‘related’
circumstances.” Id. at 188. The supreme court clarified that “[t]he circumstances need not
be identical in all respects, but there must be sufficient overlap with regard to time, location,
persons involved, and basic facts.” Id. (quotation omitted). In that case, a woman’s
husband forced employees of a business into a breakroom at gunpoint. Id. at 185. One
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minute later, the woman entered the business and told her husband that it was “time to
leave.” Id. at 186. The couple drove away and were apprehended in Ohio the next day.
Id. The woman pleaded guilty to the offense of aiding an offender to avoid arrest, which
is not an enumerated offense. Id. The state dismissed charges of aiding and abetting
kidnapping and false imprisonment, which are enumerated offenses. Id. at 186-87. The
supreme court held that the facts underlying the woman’s conviction of an unenumerated
offenses did not sufficiently overlap with the facts underlying the enumerated offenses of
aiding and abetting kidnapping and false imprisonment. Id. at 188-91.
In this case, t he post -conviction court reasoned that “the charged offense of
possession of child pornography and convicted offense of dissemination of child
pornography are so closely linked” because “ without possession, dissemination is
impossible.” The post-conviction court also reasoned that “the basic facts and location of
the two offenses align.” Accordingly, the post-conviction court concluded that Rye’s
dissemination convictions and his possession charges arose out of the same set of
circumstances. Rye contends on appeal that the post-conviction court erred because, given
the undisputed facts, the Lopez-Berry factors are not satisfied. We apply a de novo standard
of review. Lopez, 778 N.W.2d at 705.
We begin our analysis with the first Lopez-Berry factor: time. Rye pleaded guilty
to three dissemination counts by admitting that he made certain child-pornography files
available for others to download on November 9, 12, and 13, 2017. In the three possession
charges that were dismissed, the state alleged that Rye possessed certain child-pornography
files on August 16, 2018, which was the date on which law-enforcement officers seized his
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computer. The interval between Rye’s dissemination and alleged possession is
approximately nine months, which is much longer than the intervals of ten days in Lopez
and one minute in Berry. See id. at 706; Berry, 959 N.W.2d at 186. Accordingly, there is
no overlap in the timing of the dissemination convictions and the possession charges.
We continue by analyzing the third Lopez -Berry factor: persons involved. Rye
contends that there is no “indication that the same people were involved in the two sets of
offenses.” Rye is correct that the factual record is lacking details about the other person or
persons involved in the dissemination convictions. The record is silent as to whether any
of the three files relating to the dissemination convictions are the same as any of the files
relating to the possession charges. In addition, the dissemination convictions necessarily
involved one or more persons other than Rye and the children depicted in the downloaded
digital files, while the possession charges did not involve any other adult person. In Lopez,
in which one person was involved in the charged offense but not involved in the offense of
conviction, the supreme court noted that there was “a slightly different group of people”
involved in the two categories of offenses, which supported the conclusion that they did
not arise from the same set of circumstances. 778 N.W.2d at 702, 706. Similarly, in this
case, the record does not reveal sufficient overlap in the persons involved in the
dissemination convictions and the possession charges.
We interpret Berry to require sufficient overlap with respect to all of the Lopez -
Berry factors. See 959 N.W.2d at 188. That requirement is not satisfied here because there
is no overlap with respect to the time factor and insufficient overlap with respect to the
persons-involved factor. Consequently, the possession charges that were dismissed did not
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arise out of “the same set of circumstances” as the dissemination charges to which Rye
pleaded guilty. Thus, the post-conviction court erred by denying that part of Rye’s post-
conviction petition. Therefore, we remand the matter to the post-conviction court with
instructions to modify Rye’s sentence so that he is not required to register as a predatory
offender.
II. Pro Se Arguments
In a pro se supplemental brief, Rye makes four general arguments for reversal of
the post-conviction court’s order, with multiple parts to each argument. Rye’s brief is
somewhat broader in scope than the post-conviction court’s order. Rye does not argue that
the post-conviction court erred by not considering any argument that he may have
presented in his petition. Accordingly, we will consider only those arguments and issues
that were resolved by the post-conviction court.
First, Rye argues that the post-conviction court erred by rejecting his argument that
the district court incorrectly calculated his criminal-history score. The post- conviction
court explained that the so-called Hernandez method determined Rye’s criminal-history
score for each of his three convictions. See State v. Hernandez, 311 N.W.2d 478, 480-81
(Minn. 1981). Specifically, the post-conviction court stated that Rye had a criminal-history
score of 0 for the first sentence, a criminal-history score of 1.5 (rounded down to 1) for the
second sentence, and a criminal-history score of 3 for the third sentence. Rye contends
that Hernandez should not apply on the ground that he had no prior convictions before the
convictions in this case, unlike the defendant in Hernandez, who had prior convictions
unrelated to the convictions for which he was being sentenced. Rye does not cite any
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caselaw in support of his argument. As far as we are aware, t he supreme court has not
limited Hernandez in the manner urged by Rye. Rather, the Hernandez method applies
whenever “a defendant is sentenced for multiple offenses on the same day.” State v.
Williams, 771 N.W.2d 514, 521 (Minn. 2009). Thus, the post- conviction court properly
ruled that the district court did not err by applying the Hernandez method.
Second, Rye argues that the post-conviction court erred by rejecting his argument
that the district court erred by ordering him to complete a sex-offender assessment and sex-
offender treatment. The post-conviction court reasoned that, given the offenses of
conviction, an assessment was required before sentencing. See Minn. Stat. § 609.3457,
subd. 1 (2016). The post-conviction court also noted that the district court would have
been required to order any recommended sex-offender treatment if it had not sentenced
Rye to prison. See id., subd. 3. But the district court did sentence Rye to prison and did
not order sex-offender treatment. Rye has not identified any error in the post-conviction
court’s analysis. Thus, the post-conviction court properly ruled that the district court did
not err by requiring Rye to undergo a sex-offender assessment before sentencing.
Third, Rye argues that the post-conviction court erred by rejecting his argument that
the district court erred by imposing a five-year term of conditional release. The post-
conviction court reasoned that a five-year term of conditional release is required by statute.
The applicable statute provides that “when a court commits a person to the custody of the
commissioner of corrections for violating this section, the court shall provide that after the
person has been released from prison, the commissioner shall place the person on
conditional release for five years.” Minn. Stat. § 617.247, subd. 9 (emphasis added). Rye
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contends that this statute does not apply because its last sentence refers to section 609.3455,
subdivision 8, which does not refer back to section 617.247. But a cross-reference is
unnecessary. Section 617.247 adopts the provisions of section 609.3455, subdivision 8,
with respect to the “terms of conditional release,” which encompasses issues such as
conditions of release, the costs of treatment, notification of victims, and revocation of
release. See Minn. Stat. § 609.3455, subd. 8 (2016). In any event, nothing in section
609.3455, subdivision 8, states that conditional release may not be imposed on a defendant
being sentenced for disseminating child pornography. Thus, the post-conviction court
properly ruled that Rye’s sentence includes a five-year term of conditional release.
Fourth, Rye argues that the post-conviction court erred by rejecting his argument
that he received ineffective assistance of counsel. The post-conviction court considered
Rye’s claim that his trial attorney did not explain to him the difference between concurrent
and consecutive sentences. The post-conviction court reasoned that Rye failed to establish
both requirements of his claim: first, that his attorney’s representation fell below an
objective standard of reasonableness and, second, “‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the results of the proceeding would have been
different.’” See Nissalke v. State, 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v.
Washington, 466 U.S. 668, 694 (1984)). We agree with the post-conviction court that Rye
cannot establish the second requirement because he received concurrent sentences, which
results in less imprisonment than if he had received consecutive sentences. Thus, the post-
conviction court properly ruled that Rye did not receive ineffective assistance of counsel.
Affirmed in part, reversed in part, and remanded.