Emem Ufot Udoh, 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This opinion is nonprecedential except as provided by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
A22-1690

Emem Ufot Udoh, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 22, 2023
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-CR-13-8979

Emem Ufot Udoh, Brooklyn Center, Minnesota (pro se appellant)

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

Mary F. Moriarty, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Bryan, Presiding Judge; Johnson, Judge; and Hooten,
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NONPRECEDENTIAL OPINION
JOHNSON, Judge
In 2014, Emem Ufot Udoh was convicted of multiple counts of criminal sexual
conduct. In 2022, Udoh moved to correct his sentence, arguing that he should not be
required to be on conditional release for the remainder of his lifetime . We conclude that
the district court did not err by ordering lifetime conditional release because Udoh had a
prior sex-offense conviction when he was convicted of the sex offense for which lifetime
conditional release was ordered. Accordingly, the district court did not err by denying
Udoh’s motion to correct sentence. Therefore, we affirm.
FACTS
In March 2013, the state charged Udoh with two counts of first- degree criminal
sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(b) (2012), and two counts of
second-degree criminal sexual conduct, in violation of Minn. Stat. § 609.343, subd. 1(a)
(2012). In counts 1 and 2, the state alleged that, between April 2012 and February 2013,
Udoh engaged in sexual penetration of and sexual contact with his 13-year -old
stepdaughter. In counts 3 and 4, the state alleged that, between June 2012 and February
2013, Udoh engaged in sexual penetration of and sexual contact with his 11-year-old
stepdaughter.
After a six-day trial in August 2014, a Hennepin County jury found Udoh guilty of
the charges in counts 1, 2, and 4. In September 2014, the district court imposed concurrent
prison sentences of 144 months on count 1 and 70 months on count 4. The district court
also ordered that, after Udoh completes his sentence on count 1, the commissioner of
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corrections shall place him on conditional release for 10 years with respect to count 1 and
for the remainder of his lifetime with respect to count 4. In addition, the district court
ordered that, after Udoh completes his sentence, he will be required to register as a
predatory offender for the remainder of his lifetime.
On direct appeal, this court affirmed Udoh’s convictions with respect to counts 1
and 4 but reversed the conviction on count 2 on the ground that it is a lesser-included
offense of the offense in count 1. State v. Udoh, No. A14-2181, 2016 WL 687328, (Minn.
App. Feb. 22, 2016) (citing Minn. Stat. § 609.04, subd. 1 (2012)) , rev. denied (Minn.
Apr. 27, 2016).
In September 2022, Udoh filed a pro se motion to correct his sentence. He argued
that he should not be on conditional release, and should not be required to register as a
predatory offender, for the remainder of his lifetime after his release from prison. The
district court denied Udoh’s motion. Udoh appeals.
DECISION
Udoh argues that the district court erred by denying his motion to correct sentence.
A district court “may at any time correct a sentence not authorized by law.” Minn.
R. Crim. P. 27.03, subd. 9. An offender may obtain a correction of his or her sentence by
filing a motion to correct sentence. See, e.g., Townsend v. State, 834 N.W.2d 736, 739
(Minn. 2013); Johnson v. State, 801 N.W.2d 173, 175 (Minn. 2011). A sentence is not
authorized by law if it is “contrary to law or applicable statutes.” State v. Schnagl, 859
N.W.2d 297, 301 (Minn. 2015). In general, this court applies an abuse-of-discretion
standard of review to a district court’s denial of a motion to correct sentence. Townsend,
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834 N.W.2d at 738. But we apply a de novo standard of review to a district court’s legal
conclusions. Id.
Udoh challenges two components of his sentence that apply for the remainder of his
lifetime after the completion of his prison sentence: the requirement that he be on
conditional release and the requirement that he register as a predatory offender. We will
discuss each requirement separately.
A.
The legal authorization for the district court’s order for lifetime conditional release
is contained in the following statute:
[W]hen the court commits an offender to the custody of the
commissioner of corrections for a violation of section 609.342,
609.343, 609.344, 609.345, or 609.3453, and the offender has
a previous or prior sex offense conviction, the court shall
provide that, after the offender has completed the sentence
imposed, the commissioner shall place the offender on
conditional release for the remainder of the offender’s life.

Minn. Stat. § 609.3455, subd. 7(b) (2012) (emphasis added).
In State v. Nodes, 863 N.W.2d 77 (Minn. 2015), the supreme court held that another
sex-offense conviction in the same case may constitute a “‘previous or prior sex offense
conviction’” for purposes of section 609.3455, subdivision 7(b). Id . at 79-82 (quoting
Minn. Stat. § 609.3455, subd. 7(b) (2014)). The defendant in Nodes was (like Udoh)
convicted of first-degree criminal sexual conduct with respect to one victim and second-
degree criminal sexual conduct with respect to another victim. Id. at 78-79. The state
asked the district court to order that, after Nodes completes his sentence (if it were to be
executed), he must be placed on conditional release for 10 years with respect to the first
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conviction and for the remainder of his lifetime with respect to the second conviction. Id.
at 79. The district court denied the state’s request on the ground that both convictions were
entered on the same day. Id. The state appealed. Id.
The supreme court reversed, reasoning as follows:
Nothing in the statute suggests that a conviction entered
at the same hearing as a subsequent conviction cannot function
as a “prior sex offense conviction” for the purpose of Minn.
Stat. § 609.3455, or that a particular temporal gap between the
convictions is required. As long as one conviction is entered
before the second, it is a “prior conviction” under the plain
language of the statute.

Id. at 82. The supreme court noted that a defendant is “convicted ” when a guilty plea or
guilty verdict is accepted and recorded by the district court, id. at 80 (citing Minn. Stat.
§ 609.02, subd. 5 (2014)), and that a district court “‘records’ a guilty plea upon accepting
the guilty plea and adjudicating the defendant guilty on the record,” id. at 81 (quoting State
v. Martinez-Mendoza, 804 N.W.2d 1, 6 (Minn. 2011)). Accordingly, the supreme court
concluded that Nodes’s guilty pleas were accepted at his sentencing hearing and that his
two convictions were entered sequentially, which made the first conviction a prior
conviction:
When the court announced on the record that Nodes was
adjudicated “guilty of criminal sexual conduct in the first
degree,” in that instant Nodes was convicted of that offense,
and in the next instant it was no longer a present offense, but
was now a past conviction. Nodes’ s first conviction, which
occurred a moment “before” the second, was at that point a
“prior sex offense conviction.”

Id. at 82.
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Four years later, in State v. Brown, 937 N.W.2d 146 (Minn. App. 2019), this court
distinguished Nodes in a case in which multiple convictions were entered
“simultaneously.” Id. at 155-57. At Brown’s sentencing hearing, the district court referred
to his two offenses collectively, using phrases such as “those crimes” and “both counts.”
Id. at 155. We stated that there was “no temporal gap whatsoever between” the district
court’s adjudications of the two offenses. Id. at 157. In that situation, we reasoned, “no
conviction is entered ‘before’ the other, and no conviction can be prior to the other.” Id.
Accordingly, we reversed the district court’ s order for a lifetime term of conditional
release. Id.
In this case, the parties agree that the district court accepted the jury’s guilty verdicts
and adjudicated Udoh guilty at his sentencing hearing. The district court imposed
sentences on counts 1 and 4 in the following manner:
And, therefore, Mr. Udoh, Emem Udoh, having been
found guilty on August 19, 2014 of Count 1, the crime of
Criminal Sexual Conduct in the First Degree in violation of
Minnesota Statute 609.342, subdivision 1( b), and standing
convicted of said crime, it is the sentences of law and the
judgment of this Court that as punishment therefore you shall
be committed to the Commission of Corrections of this state
for a period of 144 months.

You were also found guilty on August 19, 2014 of
Count 2, the crime of Criminal Sexual Conduct in the Second
Degree in violation of Minnesota Statute 609.343, subdivision
1(b), and are convicted of that crime; however , no sentence is
imposed upon this conviction.
[1]

1As stated above, the conviction on count 2 later was reversed on the ground that it
is a lesser-included offense of the offense in count 1. See Udoh, 2016 WL 687328, at *4.
7
You were also found guilty on August 19, 2014 of
Count 4, the crime of Criminal Sexual Conduct in the Second
Degree in violation of Minnesota Statute 609.343, subdivision
1(a), and standing convicted of said crime it is the sentence of
law and the judgment of this Court that as punishment
therefore you shall be committed to the Commissioner of
Correction of this state for a period of 70 months.

The transcript of the sentencing hearing clearly reflects that Udoh’s convictions on
counts 1 and 4 were entered sequentially, as in Nodes, not simultaneously, as in Brown.
For that reason, Udoh’s conviction of the sex offense in count 1 was a “‘prior sex offense’”
at the time of his conviction of the sex offense in count 4. See Nodes, 863 N.W.2d at 82
(quoting Minn. Stat. § 609.3455 (2014)). Because Udoh had a prior sex-offense
conviction, the district court was authorized by law to order that he be placed on conditional
release for the remainder of his lifetime. See Minn. Stat. § 609.3455, subd. 7(b).
Udoh argues in his pro se brief that “[t]his case is like Brown, where the convictions
occurred simultaneously during sentencing.” In response, the state argues that Nodes
applies because the district court separately imposed the sentences on counts 1 and 4. Udoh
does not attempt to rebut the state’s argument in his reply brief. But there is no valid
counter-argument because, as stated above, the record clearly reflects that Udoh’s
convictions on counts 1 and 4 were entered sequentially, as in Nodes, not simultaneously,
as in Brown.
Thus, the district court’s order for lifetime conditional release was authorized by
law.

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B.
Udoh also challenges the district court’ s order that he register as a predatory
offender for the remainder of his lifetime.
The district court was authorized to order registration as a predatory offender with
respect to both count 1 and count 4 because Udoh was convicted of violations of sections
609.342 and 609.343. See Minn. Stat. § 243.166, subd. 1b(a)(1)(iii) (2012). The duration
of Udoh’s requirement to register as a predatory offender is governed by the following
statute:
[A] person required to register under this section shall continue
to comply with this section until ten years have elapsed since
the person initially registered in connection with the offense,
or until the probation, supervised release, or conditional
release period expires, whichever occurs later.

Minn. Stat. § 243.166, subd. 6(a) (2012) (emphasis added). Because Udoh is required to
be on conditional release for the remainder of his lifetime, he also is required to register as
a predatory offender for the remainder of his lifetime. See id. Thus, the district court’s
order for lifetime registration as a predatory offender was authorized by law.
In sum, the district court did not err by denying Udoh’s motion to correct his
sentence.
Affirmed.