A Rule 27.03 Motion to Correct Sentence Not Subject to Two Year Limitations Period

State v. Vazquez, Minn.Ct.App., 10/29/2012.  Mr. Vazquez is serving a 406 month sentence for a second degree murder conviction from back in 2001.  He recently filed a motion to correct or reduce his sentence under Rule 27.03, subd. 9 of the rules of criminal procedure.  He said that his criminal history score had been miscalculated, which resulted in a lengthier sentence than the Guidelines specified.  The first time through the district court treated the motion as a petition for post conviction relief and said that it was barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976) because Mr. Vazquez could have raised this issue on direct appeal.  The court of appeals reversed that determination, saying that a sentence that is based on an incorrect criminal history calculation is illegal and review of an illegal sentence cannot be waived.

The second time through the district court said, okay, it’s still a post conviction petition and it’s time barred under the limitations provisions of the post conviction statute.  So there.

Now, this is murky water, indeed, when both the post conviction statute and a criminal rule square off.  For instance, a motion under Rule 15 to withdraw a guilty plea after sentencing must be raised in a post conviction petition.  James v. State, 699 N.W.2d 723 (Minn. 2005).  On the other hand, the court of appeals seems to believe that the supreme court has “permitted” Rule 27.03 motions to be treated as a post conviction petition but has not absolutely required it.  Powers v. State, 731 N.W.2d 499 (Minn. 2007).  This is a somewhat dubious proposition in the face of this footnote from the Powers opinion: 

Powers does not challenge the district court's decision to treat his motion as a petition for postconviction relief. The district court's decision finds support in the language of Minn.Stat. § 590.01, which is broad enough to encompass a motion pursuant to Minn. R.Crim. P. 27.03. See Minn.Stat. § 590.01 (2006) (allowing a convicted person to petition the district court to correct a sentence); Minn. R.Crim. P. 27.03, subd. 9 (“The court at any time may correct a sentence not authorized by law.”); see also State v. Stutelberg, 435 N.W.2d 632, 633 (Minn.App.1989) (characterizing the appellant's motion as a “motion for postconviction relief under Minn. R.Crim. P. 27.03, subd. 9”).

Rule 27.03, subd. 9 does say that a “court may at any time correct a sentence not authorized by law.”  At any time.

Which is good enough for the court of appeals.  Seemingly adopting Justice Stras’ literalness approach to jurisprudence, “at any time” means, well, it means whenever.  The problem is, Rule 15.05 says exactly the same thing:  “At any time the court must allow a defendant to withdraw a guilty plea upon a timely motion …”  Justice Stras skipped over that very language – at any time - to conclude that a Rule 15.05 motion to withdraw a guilty plea is subject to the post conviction statute’s limitations provisions, grabbing hold, instead, of the words, “upon a timely motion.”  Lussier v. State, read here.  Is that really the key?  The missing “upon a timely motion” language from Rule 27?