State v. Vacek
| Decision Date | 29 September 2014 |
| Docket Number | A13-2136 |
| Court | Minnesota Court of Appeals |
| Parties | State of Minnesota, Respondent, v. Erik Alan Vacek, Appellant. |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Affirmed
Kanabec County District Court
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Barbara McFadden, Kanabec County Attorney, Reese Frederickson, Assistant County Attorney, Mora, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Hudson, Judge; and Kirk, Judge.
UNPUBLISHED OPINION
Appellant challenges his 180-day consecutive sentence for a driving-while-impaired (DWI) offense, arguing that the district court erred by: (1) imposing a consecutive sentence after it failed to specify whether the sentence was concurrent or consecutive to a prior DWI sentence; and (2) violating his due process rights. We affirm.
In August 2011, respondent State of Minnesota charged appellant Erik Alan Vacek in Kanabec County with third-degree DWI, in violation of Minn. Stat. § 169A.20, subd. 1(2) (2010). In November, the state charged appellant in Itasca County with third-degree DWI, in violation of Minn. Stat. § 169A.20, subd. 1(5) (2010). In March 2012, appellant pleaded guilty to third-degree DWI in Itasca County and that same day the district court sentenced him to 365 days, stayed, and placed him on supervised probation.
In May 2012, a Kanabec County jury convicted appellant of third-degree DWI. In July, the district court sentenced appellant to 180 days, stayed 166 days, and placed him on supervised probation for three years. The district court did not state on the record or in the warrant of commitment whether appellant's sentence was concurrent or consecutive to his Itasca County sentence.
In March 2013, appellant's Itasca County probation officer filed a probation-violation report alleging that appellant failed to submit to random drug testing and tested positive for a controlled substance. The next day, appellant's probation officer in Kanabec County filed a probation-violation report based on his alleged probationviolations in Itasca County. The Itasca County District Court determined that appellant's conduct violated the terms of his probation and executed appellant's stayed 365-day sentence.
In June 2013, the Kanabec County District Court held a probation-violation hearing. Appellant was represented by counsel. The parties disputed whether appellant should serve his stayed Kanabec County sentence consecutive or concurrent to his Itasca County sentence. Appellant argued that under Minn. Stat. § 609.15 (2010), the district court's failure to specify in its July 2012 sentencing order whether appellant's stayed sentence was consecutive or concurrent meant that the sentence was concurrent to his Itasca County sentence. The prosecutor disagreed, arguing that Minn. Stat. § 169A.28, subd. 1(a)(1) (2010), required that the district court impose a consecutive sentence because appellant's DWI convictions under Minn. Stat. § 169A.20 (2010) arose out of separate courses of conduct. The district court acknowledged on the record that the July 2012 warrant of commitment did not specify whether appellant's sentence was concurrent or consecutive to his Itasca County sentence and that it needed to conduct more research to ascertain the controlling statute.
Despite the uncertainty over the status of appellant's sentence, appellant waived all rights and advisories under Minn. R. Crim. P. 27.04 and requested that the district court execute his stayed 180-day sentence concurrent with his Itasca County sentence. The district court clarified appellant's request as follows:
The district court asked appellant whether he understood that if he demanded an executed sentence, he would forego the opportunity to have a contested probation-violation hearing where the state would have to prove with clear and convincing evidence that he violated his probation. Appellant replied that he understood. Appellant also affirmed that while he was not admitting to the probation violation, he had been given adequate time to consult with his attorney about the sentence, waived his rights to a contested probation-violation hearing, and demanded that his sentence be executed.
The district court found that appellant's waiver was knowing, intelligent, and voluntary and executed appellant's sentence. The district court allowed the parties to submit briefs on the sentencing issue.
In an order filed on July 11, the district court concluded that section 169A.28, subdivision 1, mandated that it sentence appellant consecutively because he was already serving a sentence for a different DWI offense under section 169A.20. Appellant moved for reconsideration, which the district court denied. Appellant appealed both the district court's July 11 order and its denial of the motion to reconsider.
This court denied appellant's appeal of the district court's July 2012 order as untimely under Minn. R. Crim. P. 28.02, subd. 3. This court also denied appellant's appeal of the district court's motion to reconsider, but construed the appeal as a timely postconviction appeal.
As an initial matter, the state argues that this court does not have authority to modify appellant's sentence because it has expired. But this court has the authority to amend appellant's sentence because he initiated his postconviction appeal before his sentence had expired. See State v. Hannam, 792 N.W.2d 862, 864 (Minn. App. 2011) (); State v. Purdy, 589 N.W.2d 496, 498 (Minn. App. 1999) ().
We also reject the state's claim that appellant's postconviction petition is procedurally barred under State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), because this court has not yet addressed the underlying merits of his claims. See Minn. Stat. § 590.04, subd. 3 (2012) (); see also Lynch v. State, 749 N.W.2d 318, 321 (Minn. 2008) .
A court may at any time correct a sentence that is not authorized by law. Minn. R. Crim. P. 27.03, subd. 9. "Whether a statute has been properly construed . . . is a question of law subject to de novo review." State v. Gilbert, 634 N.W.2d 439, 441 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).
Appellant argues that the Kanabec County District Court's failure to specify in its July 2012 order whether appellant's sentence was to run concurrently or consecutively to his Itasca County sentence necessitates that the sentences run concurrently under Minn. Stat. § 609.15, subd. 1. We disagree. The district court properly amended appellant's July 2012 sentence to conform to the requirements of section 169A.28, subdivisions 1(a)(1) and 1(a)(2). In support of its conclusion, the district court cited Gilbert, where the appellant pleaded guilty to two separate DWI offenses in two counties and challenged the district court's execution of a previously imposed but partially stayed sentence consecutive to a later-executed sentence that was imposed in the other county. 634 N.W.2d at 440-41. In Gilbert, this court held that while section 609.15 establishes that unspecified sentences are to be served concurrently, section 169A.28, subdivision 1, carves out a narrow exception mandating the imposition of consecutive sentences for DWI offenses under section 169A.20. Id. at 442.
We agree with the district court that Gilbert is controlling in this case. Here, appellant committed two DWI crimes that arose out of separate courses of conduct. Atthe time the Kanabec County District Court sentenced him, he was serving an executed sentence for DWI in Itasca County. As the Kanabec County District Court was the later-sentencing court, it was required to impose a consecutive sentence to the Itasca County sentence in order to comply with the statutory requirements of section 169A.28, subdivisions 1(a)(1) and 1(a)(2).
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