When Is a Rule 27.03, Subd 9 Motion to Correct Sentence Actually a Post Conviction Petition?

Washington v. State, Minn.Ct.App., 4/7/2014.  Mr. Washington threw hot liquid in a correctional officer’s face and then punched/chased the officer as the officer fled.  The state charged Mr. Washington with several felony offenses.  Eventually the court imposed a sentence of 96 months, which was an upward durational departure based on career offender status.

In this litigation, Mr. Washington filed a motion to correct sentence under Rule 27.03, subdivision 9.  First, he said that the aggravated sentence was unlawful because the trial court relied upon an inaccurate record of his criminal history; the inaccuracy was that the records of his prior convictions did not state his true name.  Second, Mr. Washington said that he was entitled to jail credit (which the trial court had denied at sentencing).  Third, he said that the state had failed to prove his identity beyond a reasonable doubt during the guilt phase of his trial.

A motion under Rule 27.03, subd. 9 seeks to correct a sentence that is not authorized by law.  The other way to challenge a sentence is under the post conviction statute.  The two remedies coexist.  Vazquez v. State, 822 N.W.2d 313 (Minn.Ct.App., 2012).  However, the two remedies have different procedural requirements.  First, there is a limitations restriction on post conviction petitions, and both the legislature and the court have imposed limitations on repetitive challenges to a conviction or sentence under the post conviction act.  Whether the limitations restrictions of the post conviction statute apply to a Rule 27.03, subd. 9 motion is an open question, Townsend v. State, 834 N.W.2d 736 (Minn. 2013), although the court of appeals has said, no.

To avoid gaming the system – filing a Rule 27.03, subd. 9 motion to avoid either a limitations or repetitiveness challenge under the post conviction petition – the court have attempted to craft some additional rules.  A motion under the rule must have been “properly filed under” the rule.  The rule authorizes relief only if a party is challenging a sentence and not a conviction, and only if a party is asserting that the sentence is unauthorized by law because it is contrary to an applicable statute or other law.  Any other challenge has to be under the post conviction statute.

Here, Mr. Washington’s first challenge is a fact based challenge to the record of the sentencing hearing and the trial court’s findings.  His third challenge is not to the sentence but to the conviction:  the state failed to prove his identity beyond a reasonable doubt.  He is not claiming that either the aggravated sentence or the proof of guilt were “unauthorized by law.”  These two claims must, therefore, be made under the post conviction statute.

Mr. Washington’s third challenge – to jail credits – is a challenge to the sentence.  It is also a claim that a sentence devoid of jai credits is contrary to an applicable statute, in this case, Minn.Stat. 609.2232.  On the merits, however, Mr. Washington is not entitled to relief under that very statute.