This opinion will be unpublished and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

A16-0923

State of Minnesota,

Respondent,

vs.

Christopher Robert Politano,

Appellant.

Filed November 7, 2016

Reversed and remanded

Hooten, Judge

Hennepin County District Court

File No. 27-CR-09-47894

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, Richard Schmitz, St. Paul, 

Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Peterson, Judge; and Hooten, 

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

HOOTEN, Judge

In this appeal of the denial of his motion to correct an unlawful sentence, appellant 

argues that the district court erred by treating his motion as an untimely petition for 

postconviction relief barred by the statute of limitations. We reverse and remand.

FACTS

On May 24, 2011, Appellant Christopher Robert Politano pleaded guilty to one 

count of failing to register as a predatory offender. Although Politano admitted to the 

elements of the offense, he did not admit that he had been assigned a community 

notification risk level of III at the time of the offense. After Politano admitted to 

committing the offense, the district court inquired whether a conditional-release term was 

required. 

After a short recess for the attorneys to discuss their responses to the district court’s 

inquiry, the prosecutor advised the district court that a ten-year conditional-release term 

was required. The district court, over Politano’s objection, imposed an additional ten-year 

conditional-release term, but offered Politano an opportunity to withdraw his guilty plea if 

he was unwilling to accept the conditional-release term. Politano’s attorney stated that if 

Politano wished to withdraw his plea, he would file a motion at a later date. Politano never 

filed a motion to withdraw his plea. 

On May 9, 2012, Politano filed a petition for postconviction relief, arguing that the 

conditional-release term rendered his plea unknowing and involuntary. The district court 
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denied the petition, and this court affirmed. Politano v. State, No. A12-1862 (Minn. App. 

May 20, 2013).

On January 21, 2016, following the Minnesota Supreme Court’s decision in State v. 

Her, 862 N.W.2d 692 (Minn. 2015), Politano filed a motion for sentence correction under 

Minn. R. Crim. P. 27.03, subd. 9. In his motion, he argued that the imposition of a tenyear conditional-release term under Minn. Stat. § 243.166, subd. 5a (2008) was dependent 

upon whether he was assigned a risk level III at the time of his offense and that, similar to

the facts in Her, his sentence violated his Sixth Amendment right to have a jury decide this 

factual issue prior to sentencing.

The district court determined that Politano’s motion was properly reviewed as a

petition for postconviction relief. After determining that Her did not create a retroactive 

rule which would qualify as an exception to the two-year statute of limitations for filing 

petitions for postconviction relief, the district court denied Politano’s petition as timebarred. In this appeal of that decision, Politano only challenges the legality of his 

conditional-release term, not the validity of his plea or conviction.

D E C I S I O N

The U.S. Supreme Court has stated that the Sixth Amendment 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 Minnesota Sentencing Guidelines establish the maximum sentence a district court may 
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impose without additional fact-finding by a jury or an admission by the defendant. See

State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005). 

When a risk level III predatory offender is convicted of failure to register, a ten-year 

conditional-release term is required by statute. Minn. Stat. § 243.166, subd. 5a (2008). 

This risk assessment is performed by a committee under the authority of the commissioner 

of corrections, not the convicting court. Minn. Stat. § 244.052, subd. 3a (2008). The 

Minnesota Supreme Court recently determined that whether an individual was a risk level 

III predatory offender at the time of his conviction did not fall within the prior conviction 

exception to the Blakely doctrine. Her, 862 N.W.2d at 694. Therefore, a district court may 

impose a ten-year conditional-release term based on a defendant’s status as a risk level III 

offender only if the status has been either admitted by the defendant or found by a jury 

beyond a reasonable doubt. Id. at 693.

I.

As a threshold issue, Politano argues that his motion was properly filed as a rule 

27.03 motion. The district court determined that Politano’s motion was not a rule 27.03 

motion, but instead a petition for postconviction relief. This argument requires us to 

interpret rule 27.03. Appellate courts “review the interpretation of procedural rules de 

novo.” State v. Martinez-Mendoza, 804 N.W.2d 1, 6 (Minn. 2011).

This court addressed this issue in great detail in Reynolds v. State. 874 N.W.2d 257 

(Minn. App. 2016), review granted, (Minn. Mar. 29, 2016). In Reynolds, the district court 

treated Reynolds’ rule 27.03 motion as a petition for postconviction relief and concluded 

that his petition was time-barred because it was “filed after the deadline for petitions 
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seeking postconviction relief.” Id. at 260. This court reversed, concluding that Reynolds’ 

challenge could be filed under rule 27.03, and therefore “the two-year statutory time limit 

[did] not apply.” Id. at 259–60. Our conclusion in Reynolds was predicated on a 

determination that Reynolds was challenging only the validity of a term of his sentence, 

not his underlying conviction or plea. Id. at 261. 

There are no material differences between Reynolds’ and Politano’s challenges. 

Unlike Politano’s 2012 petition for postconviction relief, his motion for sentence correction

does not challenge the validity of his plea. Instead, like Reynolds, he only challenges the 

imposition of the ten-year conditional-release period. Therefore, Politano’s motion was 

properly filed under rule 27.03, and the two-year statute of limitations does not apply. 

II.

The state argues that Her does not apply retroactively to collateral sentence review. 

The district court concluded that Politano’s petition was a Blakely petition and that Blakely

petitions are not retroactive to collateral sentence challenges. “[W]e review de novo a 

postconviction court’s legal conclusions, such as whether a decision applies retroactively.” 

Odegard v. State, 767 N.W.2d 472, 474 (Minn. App. 2009).

At the outset, we note that the supreme court in Her determined that imposing a 

ten-year conditional-release period without a jury finding or Her admitting that he was a

risk level III predatory offender at the time of his offense, violated Her’s Sixth Amendment 

rights. 862 N.W.2d at 696–97. Thus, if Her applies retroactively to Politano’s sentence 

challenge, it directly affects the analysis under rule 27.03, subd. 9, which allows a district 
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court to “at any time correct a sentence not authorized by law.” The district court concluded 

Her does not apply retroactively to Politano’s challenge. We disagree.

In denying Politano’s motion, the district court stated:

This court also looks at whether Her established a 

retroactive rule. The Minnesota Supreme Court has held that 

Blakely, the case upon which Her stands, is not retroactive 

under the collateral review of postconviction relief. State v. 

Houston, 702 N.W.2d 268, 274 (Minn. 2005). Holding the 

state to the highest burden of proof for aggravating sentencing 

elements does not shift the bedrock of the constitutional

guarantees in regards to criminal procedure. Id. at 273. This 

exception to the time limits of filing a motion for 

postconviction relief does not apply. 

[Politano]’s motion is properly treated as a motion for 

postconviction relief. As such, the two-year time limitation 

applies. Her does not establish retroactively applicable change 

in constitutional criminal procedure and no exception applies 

to this statute of limitations. [Politano] filed his motion beyond 

the time allowed and this court cannot consider it. 

The district court appears to have used a three-step reasoning process in determining

that Her does not apply to cases on collateral review. First, the district court relied on State 

v. Houston for the proposition that Blakely was not a watershed rule of constitutional 

procedure and therefore did not apply retroactively for purposes of collateral attacks on 

final sentences. See Houston, 702 N.W.2d at 273–74. Second, the district court stated that 

Blakely was the “case upon which Her stands.” Finally, the district court concluded that 

because Blakely is not available for collateral attacks on final sentences, and Her stands on 

Blakely, Her is not available for collateral attacks on final sentences. 

This reasoning appears to have a fatal flaw caused by the district court reading 

Houston too broadly. Houston addressed one narrow issue, “[w]hether Blakely applies 
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retroactively to convictions final at the time Blakely was decided.” 702 N.W.2d at 270 

(emphasis added). Blakely was decided in 2004. Politano pleaded guilty in 2011. Because 

Blakely was in effect at the time Politano made his plea, the retroactive effect of Blakely, 

as resolved in Houston, is not an issue in this case.

Therefore, for the district court’s conclusion to be correct, Her must not be 

retroactive when considered alone and outside of its relationship to Blakely. Generally, a 

new constitutional rule is not available to defendants whose convictions are final at the 

time the rule is announced. Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075 

(1989). However, rules that are “a predictable extension of a pre-existing doctrine” are 

“[o]ld rules of . . . constitutional criminal procedure [that] apply both on direct and 

collateral review.” Campos v. State, 816 N.W.2d 480, 488 (Minn. 2012) (quotations 

omitted). For the rule to be applicable on collateral review, the extension of precedent 

must be so logical that “reasonable jurists hearing petitioner’s claim at the time his 

conviction became final would have felt compelled by existing precedent to rule in his 

favor.” Houston, 702 N.W.2d at 271 (quotations omitted).

The principle that a defendant must admit, or a jury must decide, all facts other than 

a prior conviction that are necessary to impose a conditional-release term is based on more 

than 15 years of collective U.S. Supreme Court and Minnesota Supreme Court precedent.1 

 

1 See Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362–63 (“Other 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, 

542 U.S. at 303, 124 S. Ct. at 2537 (“[T]he statutory maximum for Apprendi purposes is 

the maximum sentence a judge may impose solely on the basis of the facts reflected in the 

jury verdict or admitted by the defendant.”) (quotation omitted); State v. Grossman, 636 
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The issue in Her was narrow: “whether this type of fact, a committee’s assignment of a 

risk level to an offender, is the Sixth–Amendment equivalent of a prior conviction.” Her, 

862 N.W.2d at 698. The Minnesota Supreme Court in Her applied Blakely to Her’s rule 

27.03 collateral attack on his plea, and vacated his conditional-release term, presenting its 

decision as an application of the collective case law following Apprendi. Id. at 697 

(“Applying our approach from Grossman, . . . [and] consistent with Blakely, Jones, and 

Grossman, we conclude that the 10-year period of conditional-release imposed in this case 

exceeded the statutory maximum for Her’s offense of failing to register as a predatory 

offender.”). 

As made clear by the supreme court’s reliance on prior decisions, Her did not break 

new ground, but rather clarifies the boundaries of Apprendi’s prior conviction exception. 

Therefore, because Her is not a new rule of constitutional criminal procedure, the decision 

applies retroactively to Politano’s collateral sentence challenge. 

Having concluded that Politano’s motion was properly filed under rule 27.03 and 

that Her applies retroactively to Politano’s challenge to the ten-year conditional-release

term, we reverse that portion of his sentence and remand to the district court for further 

proceedings consistent with this decision.

Reversed and remanded.

 

N.W.2d 545, 551 (Minn. 2001) (determining Apprendi required that type of findings 

needed to impose enhanced punishment under Minnesota’s statute increased sentences for 

certain sex offenders be found by jury); State v. Jones, 659 N.W.2d 748, 753–54 (Minn. 

2003) (determining that imposition of conditional-release term constituted sentence for 

purposes of Apprendi and Blakely).