A Defendant’s Risk Level Status Must Be Determined By a Jury Before the Court Can Impose a Conditional Release Term On The Basis of That Status

State v. Ge Her, Minn.S.Ct., 4/22/2015.  There are a thousand – well, not really, but there’re a lot –of ways to get on the BCA’s mailing list to receive one of the Annual Verification letters that they send out to predatory offenders.  Mr. Her is required to register but when he failed to notify law enforcement that he had moved to a new residence the state charged him with failing to register.  A jury found him guilty of that offense.  The trial court sentenced Mr. Her to sixteen months in prison, and also sentenced him to a 10 year conditional release term.  The trial court included this conditional release term because the department of corrections had previously determined that he was a risk-level-III offender.

Mr. Her eventually filed a motion under Rule 27.03, subd 9 to correct his sentence.  He said that he was entitled to a jury trial to determine his risk level status.  See Blakely v. Washington, 542 U.S. 296 (2004), which holds that other than a prior conviction, any fact that increases the penalty for a crime beyond the sentence authorized by the facts reflected in the jury verdict or admitted by the defendant must be submitted to a jury and proved beyond a reasonable doubt.  Both the district court and the court of appeals said, no, the risk level status was like a prior conviction and thus not subject to Blakely’s jury trial requirement.  See Almendarez-Torres v. United States, 523 U.S. 224 (1998).

Justice Stras, writing for the entire court, says, no, that the risk level status is a “fact” that must be proved beyond a reasonable doubt to a jury.  In a previous opinion, State v. Jones, 659 N.W.2d 748 (Minn. 2003), the court had said that a trial court’s imposition of a conditional release term based upon findings by the judge – defendant’s conduct was motivated by sexual impulses or was part of a predatory pattern, he presented a danger to public safety, and he needed long term treatment or supervision – violated Blakeley.  Those additional facts had to be found by the jury.  Mr. Her’s risk level status is no different and must also be found by the jury.