State v. Amundson, Minn.Ct.App., 4/15/2013. This is a sentencing appeal. Mr. Amundson at last gets the relief he’s been fighting for, notwithstanding a lot of procedural quagmires along the way. The title up above, though, doesn’t begin to tell the story.
In September 2004 Anoka County got around to charging Mr. Amundson with what the court only described as “felony aiding an offender” that had happened three years earlier. When Mr. Amundson was “aiding an offender” he was also on probation in Dakota County for a second degree burglary. Right before he was “aiding an offender” in Anoka County Mr. Amundson had dropped into Sherburne County, committed a second degree burglary there and got an 86 month prison sentence for his trouble. Back in Anoka – now it’s March 2005, the Anoka District Court gives Mr. Amundson 180 months for the “aiding an offender,” to be served consecutively to the Sherburne 86 month sentence.
Five years later, Mr. Amundson filed a post conviction petition; he argued that the consecutive Anoka180 was not authorized by law. His pitch was that this consecutive sentence was a departure that the Guidelines did not authorize. The post conviction court said that the petition was untimely under the limitations period in the post conviction statute; and that the consecutive sentence was permissive anyway and not a departure. Mr. Amundson appealed that ruling and the court of appeals affirmed, but only on the untimeliness ruling.
In 2012, Mr. Amundson filed a motion for correction of sentence under Rule 27.03, subd. 9. His pitch this time was that the consecutive sentence was an upward departure that was supported only by the agreement of the parties. The district court treated the motion both as a second or successive post conviction petition that raised the same issue as the first petition; and said that it was (still) untimely; the court summarily dismissed it. Mr. Amundson appealed again and that’s when his luck started to change.
During the pendency of this appeal, the court of appeals held in Vazquez v. State, 822 N.W. 2d 313 (Minn.Ct.App., 2012) that the two year limitations period in the post conviction statute does not apply to a Rule 27.03 motion that is based on a challenge to the accuracy of the criminal history score.
The court now extends the rationale of Vazquez to Mr. Amundson’s Rule 27.03 motion, saying that a defendant cannot waive or forfeit the right to challenge an unauthorized sentence merely because it was part of a plea agreement. After all, State v. Misquadace, 644 N.W.2d 65 (Minn. 2002) holds that plea agreements cannot form the sole basis of a sentencing departure; if that’s all you’ve got then the sentence is not an authorized one. Because Mr. Amundson’s motion is properly made under Rule 27.03, the limitations provision of the post conviction statute did not apply. Also, even if the Rule 27.03 motion were treated as a post conviction petition it is not subject to summary dismissal as a successive petition raising the same issue as the first petition because in the first appeal the court never got around to ruling on the lawfulness of the consecutive sentence.
So, was the Anoka 180 consecutive sentence to the Sherburne 86 a departure? Yes. When Mr. Amundson committed the “aiding an offender” crime he had not been charged with the Sherburne 86 crime. So, when Anoka sentenced him it was for “multiple current offenses” which are presumptively concurrent. Alternatively, the Sherburne 86 sentence was a “prior felony sentence which has not expired or been discharged – again making the Anoka 180 presumptively concurrent. Neither crime was a “crime against a person” and thus could not be sentenced permissively consecutively .
As it happened the state conceded that Mr. Amundson’s sentence was a departure, but argued that because the date of offense preceded Misquadace a plea agreement could support the sentencing departure under State v. Givens, 544 N.W.2d 774 (Minn. 1996). The court of appeals isn’t buying that argument, cute though it may be. The Misquadace court did limit Misquadace to “pending and future cases.” Now,“pending” means that the time for appeal has expired; but when Misquadace came down the “aiding an offender” crime was not “pending;” hell, he hadn’t even been charged yet. That leaves “future cases” and because Misquadace had not been decided when Mr. Amundson was charged with the “aiding an offender” crime, the Anoka 180 case is a “future” case to which Misquadace applies. Not having given any valid reason for a sentencing departure at the time, the district court doesn’t get a redo. State v. Geller, 665 N.W.2d 514 (Minn. 2003).
The court remands for resentencing with instructions to impose the “aiding an offender” sentence concurrent with the Sherburne 86.
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