State ex rel. Pollard v. Roy, A15–1580.

• Decision Date: 11 April 2016
• Docket Number: No. A15–1580.,A15–1580.
• Citation: 878 N.W.2d 341
• Parties: STATE of Minnesota, ex rel., Branden Lee POLLARD, petitioner, Appellant, v. Tom ROY, Commissioner of Corrections, Respondent.
• Court: Minnesota Court of Appeals

878 N.W.2d 341

STATE of Minnesota, ex rel., Branden Lee POLLARD, petitioner, Appellant,

v.Tom ROY, Commissioner of Corrections, Respondent.

No. A15–1580.

Court of Appeals of Minnesota.

April 11, 2016.

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant Public Defender, St. Paul, MN, for appellant.

Rachel E. Bell, Kelly S. Kemp, Lisa Cherie Netzer, Assistant Attorneys General, St. Paul, MN, for respondent.

Considered and decided by KIRK, Presiding Judge; PETERSON, Judge; and JESSON, Judge.

OPINION

JESSON, Judge.

Appellant challenges the district court's decision denying his petition for a writ of habeas corpus, arguing that he is entitled to have his ten-year conditional-release term reduced by the final one-third of his executed sentence. Appellant served his entire executed sentence in prison pursuant to a concurrent sentence. Because we conclude that, under section 609.3455, subdivision 6, time "served on supervised release" refers to time spent by the offender in the community, we affirm.

FACTS

On February 1, 2008, appellant Branden Lee Pollard was sentenced to 60 months in prison for first-degree aggravated robbery. While Pollard was incarcerated for the aggravated-robbery offense, DNA evidence connected him to a June 2006 sexual assault. Pollard was charged with two counts of third-degree criminal sexual conduct. On August 17, 2010, Pollard was convicted on one of these counts and sentenced to a 28–month prison term. The district court ordered the 28–month prison term served concurrently with the aggravated-robbery sentence, and, because Pollard had been in prison for the aggravated-robbery offense since February 1, 2008, the district court awarded him credit for 28 months served. Pollard's sentence for the criminal-sexual conduct offense also included a ten-year term of conditional release.

The Minnesota Department of Corrections (the DOC) determined that Pollard's 28–month executed sentence began April 28, 2008 and ended August 17, 2010. The DOC also determined that Pollard's conditional-release term began to run the day after expiration of his executed sentence. The DOC therefore informed Pollard that his conditional-release term would expire on August 17, 2020.¹

Pollard filed a petition for a writ of habeas corpus. Pollard claimed that the DOC denied him credit against his conditional-release term for time served on supervised release. The district court denied the petition. This appeal follows.

ISSUE

Is Pollard entitled to credit against his conditional-release term for a supervised-release term he served in prison while incarcerated on a concurrent sentence?

ANALYSIS

Minnesota law divides an offender's total "executed sentence" into two parts: "(1) a specified minimum term of imprisonment that is equal to two-thirds of the executed sentence; and (2) a specified maximum supervised release term that is equal to one-third of the executed sentence." Minn.Stat. § 244.101, subd. 1 (2004). An offender who does not commit any disciplinary offenses while in prison and complies with the terms of supervised release generally will serve the entire supervised-release term—final one-third of the sentence—in the community. Id., subd. 2 (2004); Minn.Stat. § 244.05 (2004). But if the offender commits disciplinary offenses while in prison, the amount of time served in custody may be extended up to the entire length of the executed sentence. Minn.Stat. §§ 244.101, subd. 2, .05, subd. 1b. An offender who is released into the community on supervised release and violates the terms of that release also may be returned to prison for up to the entire remaining length of the executed sentence. Minn.Stat. § 244.05, subd. 3.

For certain offenders, including sex offenders, a term of conditional release follows the executed sentence. Minn.Stat. § 609.3455, subd. 6 (Supp. 2005), requires that, "after the offender has completed the sentence imposed, the commissioner shall place the offender on conditional release for ten years, minus the time the offender served on supervised release. " (Emphasis added.)

Pollard's situation does not fit neatly into this framework because he was serving concurrent sentences, one of which (for criminal sexual conduct) was completed in total before the end of his term of imprisonment for the aggravated-robbery sentence. But with the criminal sexual conduct sentence came a ten-year conditional-release term. When the DOC determined that the 9.3 months Pollard had already served in prison (one-third of the 28 months of jail credit the district court granted him on the criminal-sexual-conduct sentence) would not be subtracted from the ten-year conditional-release term, Pollard filed a petition for habeas corpus in Anoka County district court requesting that the district court correct the conditional-release term.

The district court denied the petition for a writ of habeas corpus. The district court concluded that, because Pollard was in prison during the final one-third of his sentence, he was not serving "on supervised release" and was not entitled to any credit against his ten-year conditional-release term. Accordingly, the district court concluded that the DOC properly amended Pollard's conditional-release expiration date from November 6, 2019 to August 17, 2020.

Judicial review of a DOC administrative sentencing decision is appropriately sought through a writ of habeas corpus, State v. Schnagl, 859 N.W.2d 297, 304 (Minn.2015), as Pollard petitions for here. While Pollard bears the burden of showing the illegality of his detention, Breeding v. Swenson, 240 Minn. 93, 97, 60 N.W.2d 4, 7 (1953), this court reviews the district court's interpretation and application of a statute de novo. Rud v. Fabian, 743 N.W.2d 295, 298 (Minn.App.2007) ; see also State ex rel. Guth v. Fabian, 716 N.W.2d 23, 26 (Minn.App.2006) (stating that in a habeas proceeding "[q]uestions of law ... are subject to de novo review"), review denied (Minn. Aug. 15, 2006).

Minn.Stat. § 609.3455, subd. 6, directs that sex offenders shall serve a term of conditional release following their executed sentence, but that the ten-year term of that release is "minus the time the offender served on supervised release." Our de novo review begins with the plain language of the statute to see if it clearly and unambiguously dictates the result in this case. Minn.Stat. § 645.16 (2014). Pollard argues that the statutory construction set forth in State v. Koperski, 611 N.W.2d 569 (Minn.App.2000), is correct and binding on this court. In Koperski, we held that the conditional-release term must be served concurrently with the supervised-release term regardless of where the offender spends his or her entire executed sentence. Id. at 572. Pollard further argues that, because he was never placed on disciplinary confinement and never had his supervised release revoked, he must have been on supervised release for the entire "maximum supervised release term." The DOC asserts that a close reading of statutory language and subsequent caselaw dictates a different interpretation, which is embodied in the DOC's calculation of Pollard's conditional-release term. Under this reading, the conditional-release term is not reduced by the time an offender is incarcerated during the supervised-release term.

We conclude that the term "minus the time ... served on supervised release" is ambiguous as applied to Pollard. It does not directly address the situation where an inmate is serving concurrent sentences and, as a result, is not eligible to serve any of the "maximum supervised release" time in the community. This ambiguity is pointed out by Pollard, who asks: if a person in prison during their supervised-release term is not serving supervised-release time, then what is he or she serving? In this circumstance time "served on supervised release" could reasonably be read to mean either the final one-third of Pollard's executed sentence, which was served in prison due to a concurrent sentence, or only time he was under supervision in the community after release from prison, which is no portion of his sentence.

Because the statute is open to two reasonable interpretations, we turn to ascertaining the intention of the legislature. In order to ascertain the legislative intent, we consider, among other things, other laws on the same subject, the purpose of the law, the consequences of a particular interpretation, and administrative and legislative interpretations of the statute. Minn.Stat. § 645.16. We must presume that the legislature did not intend an absurd result and intends the entire statute to be effective and certain. Minn.Stat. § 645.17 (2014).

To undertake this analysis, we start with the language of the broader statutory scheme in effect at the time of Pollard's 2006 criminal-sexual-conduct offense. Next, we review a subsequent clarification of the sentencing statute that directly relates to legislative intent regarding conditional release. We then consider an administrative interpretation of the term "supervised release" and the overall purpose of conditional and supervised release. Finally, we consider our decision in Koperski, which addressed the interplay between conditional and supervised release in a very similar factual situation.

Broader Statutory Scheme

To determine the meaning of time "served on supervised release" for purposes of subtracting time from the ten-year conditional-release period, we first look at the definition and application of "supervised release." As stated above, Minn.Stat. § 244.101 provides that the final "one-third of the executed sentence" is the "maximum supervised release term." Minn.Stat. § 244.101, subd. 1. It further provides that the court must explain "the amount of time the defendant will serve on supervised release, assuming the defendant commits no disciplinary offense in prison that results in the imposition of a disciplinary confinement period." Id., subd 2. It cautions, however, that "the court's explanation...