Enhancement for Level III Sex Offender Can be Decided by Judge

Minnesota case law summary by Attorney Richard Clem: MN criminal law, Minn Stat 243.166.

State of Minnesota v. Ge Her. MN criminal law, Minn Stat 243.166

Minn. Stat. 243.166, subdivision 5a, requires a court sentencing a level III sex offender to be sentenced to ten years conditional release after release from prison. The Minnesota Court of Appeals held that this provision did not violate the holdings in Blakely v. Washington, 542 U.S. 296 (2004) or Apprendi v. New Jersey, 530 U.S. 466 (2000). Those cases require a jury to decide all facts that enhance a sentence. The appeals court held that the statute did not implicate those cases.

The court reasoned that an offender's designation a risk level III was comparable to a prior conviction or probation status, enither of which must be determined by a jury.

The case was an appeal from Redwood County District Court, Judge Leland Bush. The defendant, Ge Her, had been convicted of failing to register for a previous conviction and sentenced to 16 months in prison. In addition, he received the mandatory ten-year conditional release term and appealed that portion of his sentence.

No. A13-1586 (Minn. Ct. App. Mar. 10, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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