State v. Amundson
| Decision Date | 15 April 2013 |
| Docket Number | No. A12–2095.,A12–2095. |
| Citation | 828 N.W.2d 747 |
| Parties | STATE of Minnesota, Respondent, v. Derick Lee AMUNDSON, Appellant. |
| Court | Minnesota Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. A motion to correct an unauthorized upward sentencing departure that is based solely on the claim that the sentence is not authorized by the sentencing guidelines is properly filed under Minn. R.Crim. P. 27.03, subd. 9, and is not subject to summary denial as a second or successive petition for postconviction relief under Minn.Stat. § 590.04, subd. 3 (2012), or the two-year time limit set forth in Minn. Stat § 590.01, subd. 4(c) (2012).
2. The holding in State v. Misquadace, 644 N.W.2d 65, 72 (Minn.2002), that a plea agreement alone is not a sufficient basis to depart from the sentencing guidelines, applies to appellant's 2005 sentence for a 2001 offense that was not charged until 2004.
3. When no reasons for a consecutive-sentencing departure are placed on the record at the time of sentencing, the defendant is entitled to a corrected concurrent sentence.
Lori Swanson, Attorney General, St. Paul, Minnesota; and Anthony C. Palumbo, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, MN, for respondent.
David W. Merchant, Chief Appellate Public Defender, Cathryn Middlebrook, Assistant Public Defender, St. Paul, MN, for appellant.
Considered and decided by KIRK, Presiding Judge; STONEBURNER, Judge; and HUDSON, Judge.
Appellant challenges the district court's application of Minn.Stat. § 590.04, subd. 3, which permits summary dismissal of second or successive petitions for similar postconviction relief on behalf of the same petitioner, to his motion for correction of sentence under Minn. R.Crim. P. 27.03, subd. 9. Appellant also asserts that because the sentencing court imposed an upward departure based solely on a plea agreement, this court must remand to the district court with instructions to correct his 2005 sentence for aiding an offender to be concurrent with his 2002 sentence for second-degree burglary. Respondent agrees that the district court erred by treating appellant's motion as a petition for postconviction relief and that the 2005 sentence was an upward sentencing departure supported only by a plea agreement. But the state argues that Misquadace does not apply to appellant's sentence. Alternatively, the state argues that if Misquadace applies, the case should be remanded to the district court to address possible departure grounds. We reverse and remand for resentencing in accordance with this decision.
In October 2001, while on supervised release for a 1998 Dakota County conviction of second-degree burglary, appellant Derick Lee Amundson committed acts that gave rise to a September 2004 Anoka County charge of felony aiding an offender. In December 2004, Amundson pleaded guilty to aiding an offender. The plea agreement provided that no other charges relating to the October 2001 acts would be filed and that Amundson would be sentenced to 15 years, imposed consecutive to an 86–month Sherburne County sentence that Amundson was then serving for second-degree burglary committed in September 2001. In March 2005, Amundson was sentenced to 180 months for aiding an offender, consecutive to the 86–month burglary sentence.1
In 2010, Amundson petitioned for postconviction relief, raising a number of issues, including a claim that his sentence was not authorized by law because he was “given a consecutive sentence by using two non-person crimes.” The postconviction court erroneously concluded that consecutive sentencing was permissive and that Amundson's petition was untimely because he failed to establish any exception to the two-year statute of limitations on postconviction relief. This court, in an order opinion, affirmed denial of the postconviction petition as time-barred, without addressing the merits of Amundson's sentencing challenge. Amundson v. State, A11–0455 (Minn.App. Oct. 5, 2011). Amundson did not petition for further review.
In 2012, Amundson moved under Minn. R.Crim. P. 27.03, subd. 9, for correction of his sentence, arguing that the consecutive sentence imposed in 2005 was not authorized by law because it constitutes an upward departure from sentencing guidelines that was imposed without supporting reasons. The district court summarily denied the motion, treating it as a petition for postconviction relief under Minn.Stat. § 590.04, subd. 3 (2012) (). The district court also concluded that the petition was untimely and that Amundson failed to establish any exceptions to application of the two-year time limit in Minn.Stat. § 590.01, subd. 4.
After Amundson filed a notice of appeal, this court released its decision in Vazquez v. State, 822 N.W.2d 313, 318 (Minn.App.2012). Vazquez held that the two-year time limit for petitions for postconviction relief does not apply to a motion for correction of a sentence based on a challenge to the accuracy of a criminal-history score that is properly brought under Minn. R.Crim. P. 27.03, subd. 9.
I. Did the district court err by concluding that Amundson's sentencing-correction motion was untimely and was subject to summary dismissal under Minn.Stat. §§ 590.01, subds. 4, .04, subd. 3?
II. Is Amundson's sentence unauthorized by law?
III. What is the appropriate relief?
I. Amundson's motion, challenging consecutive sentencing as unauthorized by law, is a motion properly filed under Minn. R.Crim. P. 27.03, subd. 9, and is not subject to the time limits or summary-dismissal provisions of statutes governing petitions for postconviction relief.
In Vazquez, this court held that a motion for correction or reduction of sentence based on the accuracy of the criminal history score is properly brought under Minn. R.Crim. P. 27.03, subd. 9, and is not subject to the two-year statute of limitations set out in Minn.Stat. § 590.04. 822 N.W.2d at 320. This court reasoned that while the supreme court has permitted rule 27.03 motions to be treated as postconviction petitions, it has not mandated that treatment. Id. at 316 (citing Bonga v. State, 765 N.W.2d 639, 642–43 (Minn.2009); Powers v. State, 731 N.W.2d 499, 501 n.2 (Minn.2007)).
In Vazquez, we stated several reasons for concluding that the two-year time limit placed on postconviction petitions did not apply to Vazquez's motion that was filed under rule 27.03, subdivision 9. 822 N.W.2d at 318. Those reasons included: (1) the supreme court's holding in State v. Maurstad, 733 N.W.2d 141, 147–48 (Minn.2007), that a criminal defendant cannot waive or forfeit the right to challenge his sentence, particularly his criminal history score; (2) the importance of equity and fairness, which counterbalances any public interest in finality of a sentence that is unlawful or unauthorized; and (3) the “interests-of-justice” exception to the two-year postconviction statute of limitation, which favored addressing Vazquez's sentencing challenge on its merits. Vazquez, 822 N.W.2d at 320.
The same considerations favor treating Amundson's motion as a motion properly brought under rule 27.03, subdivision 9, not subject to the two-year time limit applied to postconviction petitions. Similar to the calculation of the criminal-history score involved in Maurstad, a defendant cannot waive or forfeit the right to challenge an unauthorized sentence merely because it was part of a plea agreement. See State v. Misquadace, 644 N.W.2d 65, 71–72 (Minn.2002) (). And public policy favors addressing the merits of Amundson's challenge to his unauthorized sentence because any interest in finality is plainly outweighed by the importance of fairness and equity. Furthermore, in this case, the state has waived its right to claim that Amundson's motion is time-barred by conceding that Vazquez applies and that Amundson's motion is properly filed under rule 27.03, subdivision 9. Cf. Carlton v. State, 816 N.W.2d 590, 601–02, 606 (Minn.2012) (). For these reasons, we conclude that the district court erred by concluding that Amundson's rule 27.03 motion was a postconviction petition subject to the two-year time limit set out in Minn.Stat. § 590.01.
Minn.Stat. § 590.04, subd. 3, provides that a postconviction court “may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court on the same case.”
As discussed above, Amundson's motion is a motion properly filed under rule 27.03, subdivision 9, and is not a second or successive petition for postconviction relief. Additionally, the issue raised in Amundson's motion has not previously been decided by this court. Amundson's petition for postconviction relief contained an assertion that his sentence was improper, but in affirming the district court's denial of that petition as untimely, this court did not address the merits of the petition. Because Amundson is entitled to seek relief at any time from imposition of an...
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