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Drobec v. State

Court of Appeals of Minnesota

July 29, 2013

Darcy Jude Drobec, petitioner, Appellant,
v.
State of Minnesota, Respondent.

UNPUBLISHED OPINION

Crow Wing County District Court File No. 18-K7-93-000612

Darcy Jude Drobec, Shakopee, Minnesota (pro se appellant).

Lori Swanson, Attorney General, St. Paul, Minnesota; and Donald F. Ryan, Crow Wing County Attorney, John J. Sausen, Assistant County Attorney, Brainerd, Minnesota (for respondent).

Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Willis, Judge.

WILLIS, Judge [*]

Appellant Darcy Jude Drobec challenges the district court's denial of her motion to correct her sentence pursuant to Minn. R. Crim. P. 27.03, subd. 9. Because Drobec's sentence is authorized by law, and three of her arguments are Knaffla-barred, we affirm.

FACTS

In November 1993, a jury found Drobec guilty of one count of second-degree intentional murder, one count of second-degree felony murder, and one count of kidnapping. [1] With regard to the kidnapping count, the jury found that the victim was not released in a safe place and suffered great bodily harm during the course of the kidnapping. The district court adjudicated Drobec guilty of all three counts against her and sentenced her to two consecutive terms of imprisonment: 459 months for the conviction of second-degree intentional murder and 91 months for the kidnapping conviction. The 459-month sentence is a 50 percent upward durational departure. The imposition of consecutive sentences also is a departure. Drobec appealed her convictions and sentence, and this court affirmed. Drobec, 1995 WL 81417, at *6. The supreme court denied Drobec's petition for further review.

On July 11, 2012, Drobec moved to correct her sentence under Minn. R. Crim. P. 27.03, subd. 9, claiming that it was illegal. The district court, analyzing Drobec's motion as a petition for postconviction relief, denied the motion. This appeal follows.

DECISION

Drobec contends that she is entitled to a correction of her sentence because it is not authorized by law. A district court "may at any time correct a sentence not authorized by law." Minn. R. Crim. P. 27.03, subd. 9. Generally, motions made under Minn. R. Crim. P. 27.03, subd. 9, may be treated as postconviction petitions. See Vazquez v. State, 822 N.W.2d 313, 316-17 (Minn.App. 2012). When addressing a postconviction petition, "where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered." State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). But certain motions under Minn. R. Crim. P. 27.03, subd. 9―specifically, motions "based solely on an incorrect criminal-history score"―cannot be treated as postconviction petitions and are not subject to Knaffla. Vazquez, 822 N.W.2d at 315, 320.

We will not reverse the denial of either a petition for postconviction relief or a motion under Minn. R. Crim. P. 27.03, subd. 9, unless the district court abused its discretion or erred as a matter of law. See Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (addressing petition for postconviction relief); Anderson v. State, 794 N.W.2d 137, 139 (Minn.App. 2011) (addressing motion under Minn. R. Crim. P. 27.03, subd. 9), review denied (Minn. Apr. 27, 2011).

I. The district court correctly used a criminal-history score of zero in calculating Drobec's consecutive ...


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