Anoka County District Court File No. 02K104009279
SYLLABUS 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 post-conviction 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.
The opinion of the court was delivered by: Stoneburner, Judge
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 post-conviction 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 post-conviction 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.*fn1
In 2010, Amundson petitioned for post-conviction 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 post-conviction 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 post-conviction relief. This court, in an order opinion, affirmed denial of the post-conviction 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 post-conviction relief under Minn. Stat. § 590.04, subd. 3 (2012) (providing for summary denial of a second or successive petition for similar relief on behalf of the same petitioner and "when the issues raised in [the petition] have previously been decided by the Court of Appeals or the Supreme Court"). 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 post-conviction relief does not apply to a motion for correction of a sentence based on a challenge to the accuracy of a ...