Filed September 10, 2002.
Appeal from the District Court, Hennepin County, File No. 01025915.
Mike Hatch, Attorney General,; and Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, (for respondent)
John M. Stuart, Minnesota Public Defender,; and Chad M. Oldfather, Special Assistant State Public Defender, (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
Appellant Thomas Jerome Iverson appeals from his second conviction of failure to register as a predatory offender, arguing that the statute does not apply to homeless people, the record does not contain a factual basis for his plea, and he was denied the effective assistance of counsel. Iverson also alleges that the district court's conditions of probation regarding registration constitute an abuse of discretion. We affirm the conviction because Iverson, by pleading guilty, failed to preserve his challenge to the application of the statute for appeal, the record contains an adequate factual basis for his plea, and Iverson was not denied the effective assistance of counsel. We affirm the probation conditions regarding registration as modified.
In 1992, Iverson pleaded guilty to second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343 (1992). As a convicted sex offender, Iverson is required to register his address with the Bureau of Criminal Apprehension pursuant to Minn. Stat. § 243.166, subds. 1(a)(1)(iii), 3(a) (1998).
References are to the 1998 statute because, although the original complaint was signed in May 2001, the state amended the complaint alleging a violation in September 1999.
At least five days before the person starts living at a new address, including living in another state, the person shall give written notice of the new living address to the assigned corrections agent or to the law enforcement authority with which the person currently is registered.
The statute requires reporting "[a]t least five days before the person starts living at a new address." Minn. Stat. § 243.166, subd. 3(b) (1998). Although this portion of the statute was not specifically challenged on appeal, the impossibility of many people meeting this requirement was raised in oral argument. The state asserts that the reporting forms require an offender to report at least five days after the person starts living at a new address. We decline to specifically address this portion of the requirement, but note that it appears to be an issue in need of attention from the legislature along with the issue of compliance by the homeless.
Minn. Stat. § 243.166, subd. 3(b) (1998).
After his conviction, Iverson registered, but provided the authorities with a non-existent address, which was discovered in 1997. The state then charged Iverson with failure to register, a gross misdemeanor. See Minn. Stat. § 243.166, subd. 5 (1996). Iverson pleaded guilty to the offense in August 1999 but, after being convicted of the violation, made no further attempt to comply with the registration statute. In May 2001, he was again charged with failure to register as a predatory offender, a felony. See Minn. Stat. § 243.166, subd. 5(a) (2000).
Counsel for Iverson moved to dismiss the charge on the grounds that application of the statute to a homeless person is an unconstitutional denial of due process and equal protection. But in July 2001, Iverson entered into a plea agreement. The state agreed to amend the complaint to allege only time periods in September 1999 for which Iverson would receive a stayed sentence. Iverson entered his guilty plea on the record, acknowledging the rights he was giving up and his satisfaction with his attorney's representation. Iverson admitted that he knew about the registration requirement, had pleaded guilty to a violation in August 1999, but in September 1999 did not comply with the registration requirement. When asked why he did not register, Iverson stated that he "was homeless" and did not have any place to stay. It is undisputed that Iverson has been homeless since prior to 1999.
At the sentencing hearing the district court stated: "The law requires you * * * if you are going to be homeless, to check in with the police station everyday." The written sentencing order lists as conditions of Iverson's five-year probation: "Must comply with Sex Offender Registration requests. Report to the police department everyday for five years." This appeal followed.
DECISION A. Waiver
Minnesota courts have adopted the view that "a guilty plea by a counseled defendant operates as a waiver of all nonjurisdictional defects," including constitutional violations and a statute-of-limitations defense. State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980) (quotation omitted); State v. Johnson, 422 N.W.2d 14, 16, 18 (Minn.App. 1988) (holding statute-of-limitations defense waived by guilty plea), review denied (Minn. May 16, 1988). Iverson was represented by counsel at the plea hearing, and he has not challenged his conviction on jurisdictional grounds. Iverson took advantage of a plea agreement so that he would not be subject to a mandatory minimum prison term. At the time he entered his plea, a motion to dismiss based on his challenge to the applicability of the statute to homeless people was pending, but Iverson made no attempt to preserve that issue for appeal. Because Iverson waived this issue below, we cannot consider it on appeal.
In his brief on appeal, Iverson did not contend that his plea was not intelligent, voluntary, or accurate. See State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983) (holding that, in order to be valid, a guilty plea must be accurate, voluntary, and intelligent). But at oral argument, Iverson asserted that there is no factual basis supporting his guilty plea. See State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994) (noting that an accurate plea requires a proper factual basis). The record establishes, however, that Iverson was aware of the requirement and had pleaded guilty to one violation of the requirement, yet made no attempt to comply with the statute in September 1999. We conclude that the record contains a sufficient factual basis for the plea.
B. Ineffective Assistance of Counsel
Iverson argues, in the alternative, that his conviction should be overturned because he received ineffective assistance of counsel.
In order to prove his claim of ineffective assistance of counsel, Iverson must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation omitted). To act within an objective standard of reasonableness, defense counsel must exercise the customary skills and diligence that a reasonably competent attorney would exercise under similar circumstances. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). "There is a strong presumption that a counsel's performance falls within the wide range of `reasonable professional assistance.'" State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).
Iverson contends that he was denied the effective assistance of counsel "by reason of his trial lawyer's failure to challenge the applicability of the registration statute to a person in appellant's situation." He argues that his trial attorney did not raise this issue; if she had done so, he contends that the charges against him would have been dismissed.
But Iverson's attorney did raise this issue with the district court by bringing a motion to dismiss specifically challenging the applicability of the statute to a homeless defendant. Apparently Iverson was more interested in the favorable terms of the plea agreement than in pursuing his challenge to the statute. At the plea hearing Iverson acknowledged his satisfaction with his representation. His claim on appeal of ineffective assistance of counsel is without merit.
C. Conditions of Probation
Iverson challenges the daily-reporting condition of his probation. The supreme court has noted that:
Trial courts have great discretion in the imposition of a sentence and appellate courts cannot substitute their judgment for that of the trial court in the imposition of a sentence.
State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989) (citation omitted). But in general a district court's conditions of probation "must be reasonably related to the purposes of sentencing and must not be unduly restrictive of the probationer's liberty or autonomy." Id.
Because the district court was concerned about how a homeless person would comply with the registration requirements, the court asked the Department of Court Services to provide an answer. The pre-sentence investigation was assigned to an experienced probation officer who reported that the same question of compliance had been raised when Iverson appeared in 1999 on the gross-misdemeanor charge of failure to register and that the Minnesota Bureau of Criminal Apprehension (BCA) provided the answer that "the defendant while homeless is required to check in to the police station on a daily basis." The BCA assured the probation officer that there are individuals who are complying in that manner. The probation officer noted that Iverson acknowledges having had daily contact with the police while living on Lake Street, so that the requirement did not seem to pose a difficulty for Iverson.
The state contends that the daily-reporting requirement is not unduly restrictive because, like other sex offenders, Iverson should be required to notify the police where he is living "whether he is living in a shelter, in a park, at a friend's house, or with a relative." As characterized by Iverson at oral argument, the registration statute has been something of a "work-in-progress" with frequent amendments. In 1997, the legislature amended the statute to require reporting each time a person "starts living at a new address." See 1997 Minn. Laws ch. 239, art. 5, subd. 3(b). Prior to this change, an offender was deemed to have changed residences "when the offender remains at a new address for longer than three days and evinces an intent to take up residence there." Minn. Stat. § 243.166, subd. 3(b) (1996). The legislature amended the statute because the language in the 1996 law was problematic. House counsel noted that "the real need is for knowing where that person is living whether or not * * * it's temporary or permanent." Hearing on S.F. No. 1880 Before the Senate-House Conf. Comm. (May 8, 1997) (statement of House Counsel Emily Shapiro).
The statute requires Iverson to report his "living address" to the authorities. Consistent with the statute, we modify the conditions of his probation and require Iverson to comply with the statute by reporting each change of living location. If Iverson changes the location of where he is living on a daily basis, then he is required to report this change daily to the authorities. But if he stays in a shelter or other specific location for several days or weeks, he can comply with the statute by reporting only when he changes his living location.