This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1137
State of Minnesota,
Respondent,
vs.
Lamont Bugg, Jr.,
Appellant
Filed February 22, 2016
Reversed and remanded
Worke, Judge
Hennepin County District Court
File No. 27-CR-14-6595
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Amy R. Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Nearly a year after appellant was sentenced for failure to register as a predatory
offender, the district court sua sponte amended his sentence to add a ten-year conditional-
release term under Minn. Stat. § 243.166, subd. 5a (Supp. 2013). The conditional-release
term was added based on the district court’s implicit finding that appellant was a risk-level-
III offender at the time of his failure to register. Appellant argues that the addition of the
conditional-release term violates his Sixth Amendment rights, and we reverse and remand.
DECISION
An alleged violation of constitutional rights presents a question of law, which we
review de novo. State v. Bobo, 770 N.W.2d 129, 139 (Minn. 2009).
On May 13, 2014, appellant Lamont Bugg, Jr., pleaded guilty and was sentenced to
18 months in prison for failing to register as a predatory offender, in violation of Minn.
Stat. § 243.166, subd. 5(a) (2012). On April 14, 2015, a management analyst at Minnesota
Correctional Facility-Faribault sent the district court a letter stating that pursuant to statute,
if an offender fails to register, and at the time of the violation is assigned to risk level III,
the commissioner of corrections shall place the offender on conditional-release for ten
years. See Minn. Stat. § 243.166, subd. 5a. The letter pointed out that Bugg’s warrant of
commitment was silent regarding a conditional-release term and asked that an amended
sentencing order be issued. On April 30, 2015, the district court issued an amended
sentencing order requiring that “[a]fter [d]efendant has completed the sentence imposed,
the commissioner shall place the person on conditional release for 10 years.”
Bugg argues that the district court’s imposition of a ten-year conditional-release
term under Minn. Stat. § 234.166, subd. 5a, without any jury finding or admission that at
the time of the offense he was a risk-level-III offender violates his Sixth Amendment rights.
We agree.
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The Sixth Amendment to the United States Constitution requires that, “[o]ther than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 2536 (2004) (quoting
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63 (2000)). The
presumptive sentencing range in the Minnesota Sentencing Guidelines determines the
maximum sentence a district court may impose without additional fact-finding by a jury or
an admission by the defendant. State v. Shattuck, 704 N.W.2d 131, 141–42 (Minn. 2005).
Minn. Stat. § 243.166, subd. 5a, provides:
Notwithstanding the statutory maximum sentence . . .
when a court commits a person to the custody of the
commissioner of corrections for violating subdivision 5 and, at
the time of the violation, the person was assigned to risk level
III under section 244.052, the court shall provide that after the
person has been released from prison, the commissioner shall
place the person on conditional release for ten years.
The Minnesota Supreme Court recently held in State v. Her that the ten-year conditional-
release term in Minn. Stat. § 243.166, subd. 5a, may not be imposed without an admission
by the defendant or a finding by a jury based on proof beyond a reasonable doubt that at
the time the defendant violated Minn. Stat. § 243.166, subd. 5(a), he was designated a risk-
level-III offender. 862 N.W.2d 692, 693 (Minn. 2015). The supreme court reversed this
court’s ruling that the prior-conviction exception applies to a determination of an
offender’s risk level. Id. at 700.
Bugg did not admit that he was a risk-level-III offender at the time of the violation,
and a jury did not make this determination. Accordingly, as the state concedes, imposition
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of the ten-year conditional-release term violated Bugg’s Sixth Amendment rights. See Her,
862 N.W.2d at 693. We therefore reverse the amended sentencing order adding the
conditional-release term.
The only remaining question is the remedy. In Her, the supreme court declined to
determine the proper remedy for the constitutional violation. 862 N.W.2d at 700 n.4. The
court stated that “[b]ecause neither party has addressed, nor did we grant review on, the
appropriate remedy for the constitutional violation in this case, we express no opinion on
the subject and leave it to the district court on remand to determine the remedy.” Bugg
argues that we should prohibit the district court from impaneling a sentencing jury on
remand because re-imposition of the conditional-release term after a jury finding would
violate double jeopardy. He also argues that imposition of the conditional-release term
would violate his plea agreement. The state argues that we should follow Her and allow
the district court to determine whether it is appropriate to impanel a sentencing jury.
Bugg brought his challenge to the amended sentencing order directly to this court;
therefore, the district court has not had an opportunity to address any of Bugg’s arguments.
This court generally will not decide issues, including constitutional issues, not raised before
the district court. State v. Busse, 644 N.W.2d 79, 89 (Minn. 2002). But this court may
decide issues not raised before the district court if “the interests of justice require their
consideration and addressing them would not work an unfair surprise on a party.” Id.
(quotation omitted). Although it is appropriate to reverse the amended sentencing order,
we do not believe that the interests of justice require us to consider Bugg’s remedy claims
at this time. There are issues related to the appropriate remedy that are not fully developed
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in the briefing and would be better addressed initially by the district court. We further note
that the decision to convene a sentencing jury generally rests within the discretion of the
district court. State v. Masood, 739 N.W.2d 736, 740 (Minn. App. 2007). If, on remand,
the district court chooses to convene a sentencing jury and the conditional-release term is
re-imposed, Bugg may appeal the district court’s decision at that time. We therefore permit
the parties to re-argue this issue before the district court and leave it to the district court to
determine the appropriate remedy.
Reversed and remanded.
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