This opinion will be unpublished and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. 

U N P U B L I S H E D O P I N I O N

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-
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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-levelIII 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.

D E C I S I O N

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 conditionalrelease 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 risklevel-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.