Andrew Henry Lieberman v. State of Minnesota

This opinion is nonprecedential except as provided by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
A23-1551

Andrew Henry Lieberman, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 20, 2024
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Carver County District Court
File No. 10-CR-20-858

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Mark Metz, Carver County Attorney, Angella M. Erickson, Assistant County Attorney,
Chaska, Minnesota (for respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Connolly, Judge; and

Jesson, Judge. ∗

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 NONPRECEDENTIAL OPINION

SMITH, TRACY M., Judge

Appellant Andrew Henry Lieberman challenges the district court’s amended

sentencing order following his motion to correct sentence. Pursuant to a plea agreement,

Lieberman pleaded guilty to criminal sexual predatory conduct (based on the underlying

predatory crime of kidnapping), kidnapping, third-degree criminal sexual conduct, and

electronic solicitation of a child to engage in sexual conduct. At sentencing, the district

court left the criminal-sexual-predatory-conduct count unadjudicated, convicted

Lieberman of the remaining three counts, and imposed executed sentences for those three

counts as agreed to by the parties, including an enhanced sentence for kidnapping via

application of the criminal-sexual-predatory-conduct statute. Later, Lieberman moved to

correct his sentences, asserting various challenges based on his having been convicted of

kidnapping and not criminal sexual predatory conduct. In response, the district court issued

an amended sentencing order vacating Lieberman’s conviction and sentence for

kidnapping and leaving that count unadjudicated, entering a conviction and sentence for

criminal sexual predatory conduct, and essentially maintaining the original sentences.

Lieberman argues that the district court’s amended sentencing order must be

reversed because convicting him of criminal sexual predatory conduct violated his

constitutional protection against double jeopardy. Alternatively, Lieberman argues that the

district court erred by imposing separate sentences for criminal sexual predatory conduct

and third-degree criminal sexual conduct because the offenses arose from the same

behavioral incident. He also argues that, if he could be sentenced for third-degree criminal

2
sexual conduct, the district court erred by making two, rather than one, departures from the

presumptive sentence for that offense.

Because double jeopardy is not implicated by the amended sentencing order, we

affirm the district court’s order with respect to Lieberman’s conviction and sentence for

criminal sexual predatory conduct. But, because the district court erred by imposing a

separate sentence for third-degree criminal sexual conduct, we reverse that sentence and

remand with instructions to vacate it.

FACTS

In September 2020, respondent State of Minnesota charged Lieberman with seven

criminal counts, including one count of criminal sexual predatory conduct, one count of

kidnapping, one count of third-degree criminal sexual conduct, three counts of electronic

solicitation of a child to engage in sexual conduct, and one count of electronic

communication with a child describing sexual conduct. 1 Lieberman entered into a plea

agreement under which he pleaded guilty to four of the counts—criminal sexual predatory

conduct, kidnapping, third-degree criminal sexual conduct, and one count of electronic

solicitation of a child to engage in sexual conduct—in exchange for dismissal of the other

charges and agreed-upon sentences.

During the plea hearing, the following factual basis was established for the four

crimes. After exchanging sexually explicit images via cell phone with a 13-year-old girl,

1
See Minn. Stat. §§ 609.3453, subd. 1 (criminal sexual predatory conduct), .25, subd. 1(2)
(kidnapping), .344, subd. 1(b) (third-degree criminal sexual conduct), .352, subd. 2a(1)
(electronic solicitation), (3) (electronic communication) (2020).

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Lieberman arranged to meet the girl in person for sexual contact. He picked her up from a

park and drove her to a nearby parking lot where he committed multiple forms of sexual

penetration. After that encounter, Lieberman twice attempted to persuade the girl to again

engage in sexual activity.

At the sentencing hearing in April 2021, the district court convicted and sentenced

Lieberman on three of the counts to which he pleaded guilty. The district court first

convicted Lieberman of kidnapping and sentenced him to imprisonment for 70 months,

referencing what it described as “the sentencing modifier of criminal sexual predatory

conduct.” The district court also imposed a ten-year period of conditional release to follow

Lieberman’s incarceration. The district court then convicted Lieberman of third-degree

criminal sexual conduct and imposed a consecutive, executed sentence of 36 months’

imprisonment—a double upward departure 2—to be followed by a lifetime period of

conditional release. Finally, the district court convicted Lieberman of electronic solicitation

of a child to engage in sexual conduct and sentenced him to imprisonment for 20 months,

executed at Lieberman’s request, to be served concurrently. The district court did not

adjudicate the criminal-sexual-predatory-conduct count. 3 The executed sentences, which

totaled 106 months, were in accord with the parties’ plea agreement.

2
The two departures were (1) an executed sentence rather than the presumptive
probationary sentence under the Minnesota Sentencing Guidelines and (2) a consecutive
rather than the presumptive concurrent sentence.
3
The original warrant of commitment reflects that the district court entered “[n]o
adjudication” for criminal sexual predatory conduct; instead, the district court identified
that offense as a “modifier” to the kidnapping conviction.

4
 In April 2023, Lieberman filed a motion for correction of sentence under Minnesota

Rule of Criminal Procedure 27.03, subdivision 9, challenging his sentences for kidnapping

and third-degree criminal sexual conduct. He argued that his sentence for kidnapping

exceeded the maximum presumptive sentence of 57 months under the Minnesota

Sentencing Guidelines, that the district court erred by imposing a conditional-release term

as part of his sentence for kidnapping, that the lifetime conditional-release term for third-

degree criminal sexual conduct was unauthorized, and that the district court erred by

imposing two departures with respect to the third-degree criminal-sexual-conduct offense.

He asserted that the district court should correct his sentences to an executed 57-month

term for kidnapping, a concurrent 48-month term for third-degree criminal sexual conduct,

and a ten-year term of conditional release.

The district court rejected Lieberman’s arguments. It determined that, consistent

with the terms of the plea agreement, Lieberman should have been convicted of criminal

sexual predatory conduct, not kidnapping. In an amended sentencing order, the district

court vacated Lieberman’s kidnapping conviction and entered a judgment of conviction for

criminal sexual predatory conduct, identifying kidnapping as the “underlying offense.” The

district court changed the sentence for kidnapping to be a sentence for criminal sexual

predatory conduct but did not otherwise modify Lieberman’s sentences.

Lieberman appeals.

DECISION

Lieberman argues that the amended sentencing order must be reversed and he must

be resentenced because (1) his conviction for criminal sexual predatory conduct violated

5
the constitutional bar against double jeopardy; (2) if his conviction and sentence for

criminal sexual predatory conduct did not violate the bar against double jeopardy, the

district court erred by imposing a sentence for third-degree criminal sexual conduct

because the two offenses arose out of the same behavioral incident; and (3) if it was proper

to sentence him for third-degree criminal sexual conduct, the district court erred by

imposing two departures and a lifetime term of conditional release for that offense. Because

our decisions regarding the first and second issues resolve this case, we do not address the

third issue. We turn to the first issue.

I. Lieberman’s conviction for criminal sexual predatory conduct did not violate
the constitutional bar against double jeopardy.

Lieberman argues that the Double Jeopardy Clause of the United States Constitution

precluded the district court from convicting him of criminal sexual predatory conduct two

years after it had convicted him of kidnapping arising from the same incident.

We begin with some additional context. “A person is guilty of criminal sexual

predatory conduct if the person commits a predatory crime that was motivated by the

offender’s sexual impulses or was part of a predatory pattern of behavior that had criminal

sexual conduct as its goal.” Minn. Stat. § 609.3453, subd. 1. “Predatory crime” is defined

by statute and includes kidnapping. Minn. Stat. § 609.341, subd. 22 (2020).

Section 609.3453 directs that a person who is convicted of criminal sexual predatory

conduct is subject to a statutory maximum sentence that is “25 percent longer than for the

underlying predatory crime.” Minn. Stat. § 609.3453, subd. 2(a)(1) (2020).

6
 As explained above, Lieberman pleaded guilty to both kidnapping and criminal

sexual predatory conduct. In the original warrant of commitment, the district court entered

a conviction for kidnapping but, as to the criminal-sexual-predatory-conduct count, wrote

“No adjudication—modifier to [the kidnapping count].” The district court imposed a 70-

month sentence for kidnapping, which, as contemplated by the plea agreement, was a

presumptive 56-month sentence plus a 25% enhancement.

In the amended sentencing order and warrant of commitment, the district court

determined that Lieberman should have been convicted of criminal sexual predatory

conduct and the kidnapping count should have been left unadjudicated because it was the

underlying predatory crime for criminal sexual predatory conduct. The district court wrote

that “[r]eversing the crime of conviction . . . is consistent with the terms of the plea

negotiation, which contemplated a guidelines sentence of 70 months for the interplay

between these two offenses.” The district court left the kidnapping count unadjudicated

and imposed no sentence for that offense, and it entered a conviction and imposed a 70-

month sentence for criminal sexual predatory conduct.

With that background, we return to Lieberman’s constitutional argument. The Fifth

Amendment to the United States Constitution provides that no person shall be “subject for

the same offence to be twice put in jeopardy of life or limb.” The Fifth Amendment’s

Double Jeopardy Clause applies to the states through the Fourteenth Amendment to the

United States Constitution. Benton v. Maryland, 395 U.S. 784, 787 (1969). The Double

Jeopardy Clause offers three protections: (1) “against a second prosecution for the same

offense after acquittal,” (2) “against a second prosecution for the same offense after

7
conviction,” and (3) “against multiple punishments for the same offense.” Brown v. Ohio,

432 U.S. 161, 165 (1977) (quotation omitted). An appellate court reviews double-jeopardy

issues de novo. State v. Leroy, 604 N.W.2d 75, 77 (Minn. 1999).

Lieberman invokes the second double-jeopardy protection, arguing that his

conviction for criminal sexual predatory conduct, entered two years after his conviction for

kidnapping, is a second prosecution for the same offense. The state does not dispute that

Lieberman’s initial kidnapping conviction is, for purposes of double jeopardy, the “same

offense” as his later criminal-sexual-predatory-conduct conviction. But the question

remains as to whether the district court’s amendment of the sentencing order to vacate the

kidnapping conviction and enter a conviction for criminal sexual predatory conduct

constituted a “second prosecution.”

To support his argument that it did, Lieberman compares his case to two Minnesota

Supreme Court cases: State v. Martinez-Mendoza, 804 N.W.2d 1 (Minn. 2011), and State

v. Jeffries, 806 N.W.2d 56 (Minn. 2011).

In Martinez-Mendoza, the state charged the defendant with one count of first-degree

criminal sexual conduct and one count of second-degree criminal sexual conduct. 804

N.W.2d at 2. The parties reached a plea agreement under which the defendant pleaded

guilty to second-degree criminal sexual conduct in exchange for dismissal of the first-

degree criminal-sexual-conduct charge. Id. at 3. The district court accepted the defendant’s

guilty plea and adjudicated him guilty of the lesser offense, which the parties assumed

would yield a presumptive 90-month executed sentence. Id. Before sentencing, the state

learned that the presumptive sentence was a 36-month stayed sentence and moved to vacate

8
the defendant’s guilty plea or reinstate the first-degree criminal-sexual-conduct charge. Id.

The district court denied the motion, and the state appealed. Id. at 5. The supreme court

held that the state had no right to appeal because the state is precluded from appealing a

pretrial order “after jeopardy has attached” under Minnesota Rule of Criminal Procedure

28.04, subdivision 2(8), and jeopardy had attached, at the latest, when the district court

accepted and recorded the defendant’s guilty plea. Id. at 7-8 & 8 n.10. The supreme court

also stated that permitting withdrawal of the plea agreement over the defendant’s objection

after conviction would allow him to be placed in jeopardy in violation of the Double

Jeopardy Clause, which “protects against a second prosecution for the same offense after

conviction.” Id. at 8.

In Jeffries, the district court, during a plea hearing, accepted the defendant’s guilty

plea and adjudicated him guilty of felony domestic assault, with the understanding that the

defendant would receive a stayed sentence. 806 N.W.2d at 58-59, 63-64. After learning

more about the defendant’s criminal history, the district court sua sponte vacated the

defendant’s guilty plea and set the case for trial. Id. at 59-60. The defendant entered a

second guilty plea to felony domestic assault, which resulted in an executed sentence. Id.

at 60. The supreme court held that Jeffries was convicted of felony domestic assault when

the district court accepted the defendant’s first guilty plea and adjudicated him guilty on

the record and that reinstating the charge for trial was a “second prosecution for the same

offense” that violated the Double Jeopardy Clause. Id. at 64.

In these cases, as here, the defendant was convicted. But, contrary to Lieberman’s

argument, neither case supports his argument that he was subjected to a “second

9
prosecution” following his conviction. In Martinez-Mendoza, the Double Jeopardy Clause

prohibited the state from withdrawing from the plea agreement or amending the complaint,

barring a second prosecution of the defendant. 804 N.W.2d at 2. In Jeffries, the defendant

was subject to a second prosecution when the district court vacated the defendant’s guilty

plea and continued the criminal proceedings. 806 N.W.2d at 64. In both cases, permitting

the state to continue with criminal proceedings after conviction would have again exposed

the defendant to jeopardy.

Here, in contrast, Lieberman did not face a second jeopardy following his

conviction. He pleaded guilty to both criminal sexual predatory conduct and kidnapping

with an agreed-upon 70-month sentence, which the district court imposed. The state did

not seek to undo Lieberman’s pleas, and the district court did not do so. Rather, to

effectuate the parties’ agreement, the district court issued an amended sentencing order that

entered a conviction for criminal sexual predatory conduct and left unadjudicated the

included offense of kidnapping, maintaining the agreed-upon sentence. Lieberman was

exposed only once to jeopardy for criminal sexual predatory conduct, and that was when

he pleaded guilty to that offense. Amending the sentencing order to enter a conviction for

criminal sexual predatory conduct and maintain the agreed-upon sentence was not a

“second prosecution.” Lieberman’s double-jeopardy argument therefore fails.

II. The district court erred by imposing a sentence for criminal sexual conduct in
the third degree.

Lieberman alternatively argues that, if the district court properly convicted and

sentenced him for criminal sexual predatory conduct, it erred by sentencing him for third-

10
degree criminal sexual conduct because the two offenses arose from a single behavioral

incident. Lieberman’s argument requires the interpretation of statutes and their application

to undisputed facts, which an appellate court reviews de novo. Cocchiarella v. Driggs, 884

N.W.2d 621, 624 (Minn. 2016); Anderson v. Christopherson, 816 N.W.2d 626, 630 (Minn.

2012). The goal of statutory interpretation is to determine the intention of the legislature.

Cocchiarella, 884 N.W.2d at 624. When statutory language is plain, courts must apply its

plain meaning. State v. Culver, 941 N.W.2d 134, 139 (Minn. 2020).

Minnesota Statutes section 609.035 (2020) generally forbids multiple sentences for

crimes arising out of a single behavioral incident. Minn. Stat. § 609.035, subd. 1; see also

State v. Williams, 771 N.W.2d 514, 520 (Minn. 2009). But the legislature has made

exceptions to the general rule, including when a person is convicted of kidnapping. See

Minn. Stat. § 609.251 (2020). Section 609.251 states, “Notwithstanding section 609.04, a

prosecution for or conviction of the crime of kidnapping is not a bar to conviction of or

punishment for any other crime committed during the time of the kidnapping.” And section

609.035, subdivision 1, lists section 609.251 as an exception to the rule against multiple

sentences. Thus, when a person is convicted of kidnapping, they may also be sentenced for

other crimes committed during the kidnapping. See State v. Butterfield, 555 N.W.2d 526,

532 (Minn. App. 1996).

In its amended sentencing order, the district court invoked the kidnapping exception

when it sentenced Lieberman for third-degree criminal sexual conduct as well as for

11
criminal sexual predatory conduct. 4 Lieberman contends that the district court erred

because he was convicted not of kidnapping, but of criminal sexual predatory conduct, and

there is not an exception for that offense.

It is true that the district court did not convict Lieberman of kidnapping—when it

convicted Lieberman of criminal sexual predatory conduct, it left the kidnapping count

unadjudicated. But the district court reasoned that the kidnapping exception in section

609.251 nevertheless applied because kidnapping “formed the necessary basis” for the

criminal-sexual-predatory-conduct offense.

The district court’s application of the kidnapping exception was error. By its plain

language, the kidnapping exception applies only to convictions for kidnapping. See Minn.

Stat. §§ 609.035, subd. 1, .251. And the state has not pointed to, and we are unaware of,

any statutory exception for the crime of criminal sexual predatory conduct. See Minn. Stat.

§§ 609.3453 (stating no exception for criminal sexual predatory conduct), .035, subd. 1

(same). 5

The district court’s reasoning for invoking the kidnapping exception to permit

multiple sentences is understandable. The crime of criminal sexual predatory conduct

requires the commission of an underlying predatory crime. Minn. Stat. § 609.3453, subd. 1.

4
An exception was necessary only if the two crimes arose from the same behavioral
incident, and there is no dispute that they did.
5
Nor has the legislature made an exception for Lieberman’s other conviction—third-
degree criminal sexual conduct committed without force or violence. Cf. Minn. Stat.
§ 609.035, subd. 6 (providing an exception for first- through fourth-degree criminal sexual
conduct committed “with force or violence”).

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“Predatory crime” is defined by statute to include a number of felony offenses. Minn. Stat.

§ 609.341, subd. 22. For some predatory crimes—for example, kidnapping and burglary—

the legislature has made exceptions to the general bar against multiple sentences. Minn.

Stat. § 609.035, subd. 1. For other predatory crimes—for example, simple robbery and

assault—it has not. See id. It is not unreasonable to think that the legislature may have

intended that any exception that applies to the underlying predatory crime also applies

when a person is convicted of criminal sexual predatory conduct based on that predatory

crime.

But there is no statute that states such a statutory intent. To conclude that an

exception exists for criminal sexual predatory conduct when the underlying predatory

crime has an exception, we would have to read into the statutes language that is not present.

That we may not do, whether the omission of the language was intentional or inadvertent.

See State v. Noggle, 881 N.W.2d 545, 550-51 (Minn. 2016). In Noggle, the supreme court,

in interpreting a statute authorizing conditional-release terms for certain enumerated

offenses, refused to read into the statute “attempts” to commit the enumerated offenses. Id.

We are similarly restricted to the statutory language here, which addresses only

“kidnapping.”

Applying the plain meaning of the relevant statutes, we conclude that the district

court erred by applying the kidnapping exception and sentencing Lieberman for third-

degree criminal sexual conduct because that crime arose from the same behavioral incident

as his crime of criminal sexual predatory conduct. We therefore reverse Lieberman’s

13
sentence for third-degree criminal sexual conduct and remand to the district court to vacate

that sentence. 6

We note that, in its amended sentencing order, the district court referenced potential

motions and district court determinations that could follow if the third-degree criminal-

sexual-conduct sentence were ruled improper in this appeal. We offer no opinion on such

potential future motions and determinations.

Affirmed in part, reversed in part, and remanded.

6
Because we reverse the sentence for third-degree criminal sexual conduct, which includes
an aggravated prison sentence and a lifetime term of conditional release, we need not
address Lieberman’s arguments that the district court erred by imposing two departures
and imposing a lifetime term of conditional release in sentencing for that crime.

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