This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-0466
State of Minnesota, Respondent,
vs.
Forrest Grant Noggle, Appellant.
Filed August 24, 2015 Affirmed Smith, Judge
Dodge County District Court File No. 20-CR-07-474
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Paul J. Kiltinen, Dodge County Attorney. Mantorville, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Peterson, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
SMITH, Judge
We affirm because the mandatory conditional-release period under Minn. Stat.
§ 609.3455, subd. 6 (2006), applies to convictions for attempts of the enumerated crimes
and because a finding that the need for confinement outweighed the policies supporting
probation was not required when confinement would not result from revocation. FACTS
On May 10, 2007, appellant Forrest Noggle initiated a chat conversation over the
internet with a law enforcement officer posing as a 14-year-old girl. Noggle “made clear
he would like to engage in sexual activities” with the girl, then arranged to meet her. On
his arrival at the meeting place, law enforcement officers arrested Noggle.
The state charged Noggle with solicitation of children to engage in sexual conduct
and attempted third-degree criminal sexual conduct. Noggle pleaded guilty to attempted
third-degree criminal sexual conduct, and the district court dismissed the solicitation
charge. The district court stayed adjudication of guilt and placed Noggle on probation.
In December 2008, the district court revoked the stay of adjudication after Noggle
violated his probation conditions, then it stayed imposition of his sentence. In 2013, the
state filed another probation violation report in both this case and a Benton County case,
where Noggle was on probation for possession of pornography involving minors. In
Benton County, Noggle’s probation was revoked and a 27-month sentence was imposed.
In January 2015, the district court held a violation hearing for the 2013 probation
violation. Noggle’s defense counsel informed the district court that Noggle had already
served more than his 18-month sentence because of the Benton County case and that, if
his sentence was executed, Noggle would not serve additional time. The district court
found that Noggle had violated conditions of his probation and that the violations were
intentional and inexcusable, but it did not make a finding that the need for confinement
outweighed the policies favoring probation after confirming that Noggle waived that
finding. The district court executed an eighteen-month sentence, to be served
2 concurrently with Noggle’s Benton County sentence, and imposed a ten-year conditional
release term.
DECISION
I.
Noggle argues that, because he was convicted of attempted third-degree criminal
sexual conduct, the district court erred by imposing a conditional-release period after his
prison commitment. Noggle contends that the language of Minn. Stat. § 609.3455, subd.
6 (2006), permits a conditional-release period only for a “violation” of section 609.345
and that an attempt is not a violation. In the alternative, Noggle suggests that the term
should be five years, not ten, because Minn. Stat. § 609.17, subd. 4(2) (2006), states that
defendants convicted of attempted crimes should be sentenced to no more than “one-half
of the maximum imprisonment” for the completed crime. A sentence that is unauthorized
by law may be corrected at any time. Minn. R. Crim. P. 27.03, subd. 9. “Interpretation
of a sentencing statute is a question of law which this court reviews de novo.” State v.
Borrego, 661 N.W.2d 663, 666 (Minn. App. 2003).
A sentence that includes a conditional-release period that is not expressly
authorized by a statute is unauthorized by law. See State v. Brooks, 555 N.W.2d 761, 762
(Minn. App. 1996) (stating that “[i]t appears that there is no statutory authority to require
an offender who has completed an executed sentence to serve a term of conditional
release,” and holding that the district court “exceeded [its] statutory authority by ordering
[defendant] to serve a five-year term of conditional release following his release from
prison”).
3 Noggle argues that if the legislature had intended to include attempts in the list of
enumerated offenses for which a conditional-release period may be imposed under Minn.
Stat. § 609.345, it would have done so expressly—as it has done in defining the terms
“conviction,” see Minn. Stat. § 609.3455, subd. 1(a)(b) (2006), and “sex offense,” see id.,
subd. 1(h) (2006). Instead, section 609.3455, subds, 9(b), 6, impose a conditional-release
period for “a violation of section . . . 609.345,” which language, Noggle argues, does not
include attempts.
Noggle’s argument that the term “violation” does not include attempt is
unpersuasive. First, Minnesota courts routinely describe attempt crimes as violations of
both the attempt statute, Minn. Stat. § 609.17 (2006), and the statute defining the crime
attempted. See, e.g., State v. Vang, 847 N.W.2d 248, 255 (Minn. 2014) (“[A]ttempted
first-degree felony murder (drive-by shooting), in violation of Minn. Stat. §§ 609.17
(2012), 609.185(a)(3)”). Because a defendant cannot be convicted of attempt without an
underlying crime that was attempted, any conviction for an attempted crime is a violation
of both the attempt statute and the statute defining the underlying crime.
Second, attempt convictions do not affect whether the conditional-release period is
mandatory or not. The Minnesota Sentencing Guidelines refer to attempt as a “sentence
modifier,” rather than a crime distinct from the attempted offense. Minn. Sent.
Guidelines 2.A.5 (2015); see also Minn. Sent. Guidelines 2.G.1 (2015) (“Sentence
modifiers are statutes that aid in defining the punishment for the underlying offense.”).
Third, the statute limiting punishment for attempts to one-half the punishment for
completed offenses does not govern the conditional-release period because the
subdivision is expressly limited to “imprisonment or fine.” Minn. Stat. § 609.17, subd. 4 4(2). “The doctrine expressio unius est exclusio alterius means that the expression of one
thing is the exclusion of another.” State v. Caldwell, 803 N.W.2d 373, 383 (Minn. 2011).
Therefore, by stating that imprisonment and fines may be halved for attempt convictions,
we may infer that the legislature intentionally excluded conditional-release periods from
reduction. See id. In addition, the Minnesota Supreme Court has held that specific
statutes, like those that govern the sentencing of sex offenders, control over general
statutes, like the attempt statute. State v. Ronquist, 600 N.W.2d 444, 447 (Minn. 1999).
Noggle cites State v.
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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 A15-0466
State of Minnesota, Respondent,
vs.
Forrest Grant Noggle, Appellant.
Filed August 24, 2015 Affirmed Smith, Judge
Dodge County District Court File No. 20-CR-07-474
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Paul J. Kiltinen, Dodge County Attorney. Mantorville, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Peterson, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
SMITH, Judge
We affirm because the mandatory conditional-release period under Minn. Stat.
§ 609.3455, subd. 6 (2006), applies to convictions for attempts of the enumerated crimes
and because a finding that the need for confinement outweighed the policies supporting
probation was not required when confinement would not result from revocation. FACTS
On May 10, 2007, appellant Forrest Noggle initiated a chat conversation over the
internet with a law enforcement officer posing as a 14-year-old girl. Noggle “made clear
he would like to engage in sexual activities” with the girl, then arranged to meet her. On
his arrival at the meeting place, law enforcement officers arrested Noggle.
The state charged Noggle with solicitation of children to engage in sexual conduct
and attempted third-degree criminal sexual conduct. Noggle pleaded guilty to attempted
third-degree criminal sexual conduct, and the district court dismissed the solicitation
charge. The district court stayed adjudication of guilt and placed Noggle on probation.
In December 2008, the district court revoked the stay of adjudication after Noggle
violated his probation conditions, then it stayed imposition of his sentence. In 2013, the
state filed another probation violation report in both this case and a Benton County case,
where Noggle was on probation for possession of pornography involving minors. In
Benton County, Noggle’s probation was revoked and a 27-month sentence was imposed.
In January 2015, the district court held a violation hearing for the 2013 probation
violation. Noggle’s defense counsel informed the district court that Noggle had already
served more than his 18-month sentence because of the Benton County case and that, if
his sentence was executed, Noggle would not serve additional time. The district court
found that Noggle had violated conditions of his probation and that the violations were
intentional and inexcusable, but it did not make a finding that the need for confinement
outweighed the policies favoring probation after confirming that Noggle waived that
finding. The district court executed an eighteen-month sentence, to be served
2 concurrently with Noggle’s Benton County sentence, and imposed a ten-year conditional
release term.
DECISION
I.
Noggle argues that, because he was convicted of attempted third-degree criminal
sexual conduct, the district court erred by imposing a conditional-release period after his
prison commitment. Noggle contends that the language of Minn. Stat. § 609.3455, subd.
6 (2006), permits a conditional-release period only for a “violation” of section 609.345
and that an attempt is not a violation. In the alternative, Noggle suggests that the term
should be five years, not ten, because Minn. Stat. § 609.17, subd. 4(2) (2006), states that
defendants convicted of attempted crimes should be sentenced to no more than “one-half
of the maximum imprisonment” for the completed crime. A sentence that is unauthorized
by law may be corrected at any time. Minn. R. Crim. P. 27.03, subd. 9. “Interpretation
of a sentencing statute is a question of law which this court reviews de novo.” State v.
Borrego, 661 N.W.2d 663, 666 (Minn. App. 2003).
A sentence that includes a conditional-release period that is not expressly
authorized by a statute is unauthorized by law. See State v. Brooks, 555 N.W.2d 761, 762
(Minn. App. 1996) (stating that “[i]t appears that there is no statutory authority to require
an offender who has completed an executed sentence to serve a term of conditional
release,” and holding that the district court “exceeded [its] statutory authority by ordering
[defendant] to serve a five-year term of conditional release following his release from
prison”).
3 Noggle argues that if the legislature had intended to include attempts in the list of
enumerated offenses for which a conditional-release period may be imposed under Minn.
Stat. § 609.345, it would have done so expressly—as it has done in defining the terms
“conviction,” see Minn. Stat. § 609.3455, subd. 1(a)(b) (2006), and “sex offense,” see id.,
subd. 1(h) (2006). Instead, section 609.3455, subds, 9(b), 6, impose a conditional-release
period for “a violation of section . . . 609.345,” which language, Noggle argues, does not
include attempts.
Noggle’s argument that the term “violation” does not include attempt is
unpersuasive. First, Minnesota courts routinely describe attempt crimes as violations of
both the attempt statute, Minn. Stat. § 609.17 (2006), and the statute defining the crime
attempted. See, e.g., State v. Vang, 847 N.W.2d 248, 255 (Minn. 2014) (“[A]ttempted
first-degree felony murder (drive-by shooting), in violation of Minn. Stat. §§ 609.17
(2012), 609.185(a)(3)”). Because a defendant cannot be convicted of attempt without an
underlying crime that was attempted, any conviction for an attempted crime is a violation
of both the attempt statute and the statute defining the underlying crime.
Second, attempt convictions do not affect whether the conditional-release period is
mandatory or not. The Minnesota Sentencing Guidelines refer to attempt as a “sentence
modifier,” rather than a crime distinct from the attempted offense. Minn. Sent.
Guidelines 2.A.5 (2015); see also Minn. Sent. Guidelines 2.G.1 (2015) (“Sentence
modifiers are statutes that aid in defining the punishment for the underlying offense.”).
Third, the statute limiting punishment for attempts to one-half the punishment for
completed offenses does not govern the conditional-release period because the
subdivision is expressly limited to “imprisonment or fine.” Minn. Stat. § 609.17, subd. 4 4(2). “The doctrine expressio unius est exclusio alterius means that the expression of one
thing is the exclusion of another.” State v. Caldwell, 803 N.W.2d 373, 383 (Minn. 2011).
Therefore, by stating that imprisonment and fines may be halved for attempt convictions,
we may infer that the legislature intentionally excluded conditional-release periods from
reduction. See id. In addition, the Minnesota Supreme Court has held that specific
statutes, like those that govern the sentencing of sex offenders, control over general
statutes, like the attempt statute. State v. Ronquist, 600 N.W.2d 444, 447 (Minn. 1999).
Noggle cites State v. Johnson, 756 N.W.2d 883, 895 (Minn. App. 2008), review
denied (Minn. Dec. 23, 2008), for the contention that to impose the full ten-year
conditional-release period would ignore the policy of treating attempt crimes as less-
serious offenses than completed crimes. However, Johnson is inapposite because it
considers permissive consecutive sentencing under a provision that separately listed one
attempt offense but no others, not a mandatory conditional-release period imposed where
all attempts of the designated offenses are treated the same. Johnson, 756 N.W.2d at 895.
Therefore, the district court did not err by ordering a ten-year conditional-release period.
II.
Noggle also argues that the district court erred by revoking his probation without
making a finding that the need for confinement outweighed the policies favoring
probation. “[W]hether a lower court has made the findings required under Austin
presents a question of law,” which we review de novo. State v. Modtland, 695 N.W.2d
602, 605 (Minn. 2005).
A district court must make three findings to revoke a defendant’s probation:
(1) that the defendant violated a specific condition or conditions; (2) that the violations 5 were intentional or inexcusable; and (3) that the need for confinement outweighs the
policies favoring probation. State v. Austin, 295 N.W.2d 246, 250 (Minn. 1980).
“[D]efendants do not bear the burden of requesting that district courts make the required
Austin findings.” Modtland, 695 N.W.2d at 606.
Here, defense counsel noted at the violation hearing that, if the district court
executed Noggle’s sentence, he would not serve any additional time because he had
already been in custody for longer than his sentence, therefore the executed sentence
would only trigger conditional release. The district court thus made findings on the first
two Austin factors. Regarding the third, the prosecutor asked, “Are they waiving [the]
third Austin factor?,” and defense counsel replied, “Yes, Your Honor.” The district court
made no findings on the third factor and proceeded directly to sentencing.
Here, the district court properly allowed Noggle to waive a finding on the third
factor because none of the reasons behind the third Austin factor applied when
confinement was not a possible outcome. Simply put, a finding that the need for
confinement outweighed the policies favoring probation would have been nonsensical
under the circumstances. Therefore, we find that the district court did not err by revoking
Noggle’s probation because a finding on the third Austin factor was not required when
confinement would not result from revocation.
Affirmed.