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Perleberg v. State

Court of Appeals of Minnesota

July 8, 2013

Scott Ronald Perleberg, petitioner, Appellant,
v.
State of Minnesota, Respondent.

UNPUBLISHED OPINION

Mower County District Court File No. 50-K1-05-000008

Scott R. Perleberg, Bayport, Minnesota (pro se appellant)

Lori Swanson, Minnesota Attorney General, St. Paul, Minnesota; and Kristen Nelsen, Mower County Attorney, Christa Daily Van Gundy, Assistant County Attorney, Austin, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Chutich, Judge; and Smith, Judge.

SMITH, Judge

Appellant challenges the district court's order denying his motion to correct or reduce his sentence under Minn. R. Crim. P. 27.03, subd. 9, arguing that his sentence is not authorized by law. Because appellant's sentence is authorized by law, we affirm.

FACTS

In January 2005, based on allegations of engaging in criminal sexual conduct with his daughter over the course of several years, appellant Scott Ronald Perleberg was charged with six counts of first-degree criminal sexual conduct. Following a bench trial, the district court found Perleberg guilty as charged. Subsequently, the district court sentenced Perleberg to six 144-month terms of imprisonment. The district court imposed a combination of concurrent and consecutive sentences, resulting in an aggregate length of imprisonment of 432 months.[1]

Perleberg appealed to this court, challenging "the district court's imposition of three consecutive sentences of 144 months' imprisonment . . ., arguing that the aggregate length of incarceration unduly exaggerates the criminality of his conduct." State v. Perleberg, 736 N.W.2d 703, 704 (Minn.App. 2007), review denied (Minn. Oct. 16, 2007). This court affirmed the district court in a published opinion. Id. Perleberg petitioned the Minnesota Supreme Court for further review. The supreme court denied the petition.

In August 2009, Perleberg petitioned the district court for postconviction relief based on ineffective assistance of counsel. The district court denied the petition, and Perleberg did not appeal.

In September 2012, Perleberg moved the district court for correction or reduction of his sentence pursuant to Minn. R. Crim. P. 27.03, subd. 9, arguing that his sentence impermissibly (1) imposes multiple punishments for the same conduct and (2) constitutes an upward durational departure. The district court denied the motion. This appeal followed.

DECISION

Perleberg contends that his sentence is not authorized by law and, therefore, he is entitled to a correction or reduction of his sentence. Under Minnesota's procedural rules, a district court "may at any time correct a sentence not authorized by law." Minn. R. Crim. P. 27.03, subd. 9. We will not reverse the denial of a Minn. R. Crim. P. 27.03, subd. 9 motion unless the district court abused its discretion or the original sentence was not ...


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