Treating This Rule 27 Motion to Correct Sentence as a Post Conviction Petition, Court Determines That It’s Time Barred

Orozco v. State, Minn.Ct.App., 1/6/2014.  Mr. Orozco shot and killed J.A. back in 2000.  He agreed to plead guilty to second degree unintentional murder with a seventy month upward sentencing departure.  A decade later Mr. Orozco brought a motion to correct his sentence under Rule 27.03, subd. 9 on the theory that the plea agreement was the only basis for the upward durational departure.  Now, there were a number of problems with this theory – both on the merits and procedurally – but both the trial court and the court of appeals took the easy way out by concluding that his Rule 27 motion was really a post conviction petition that was time barred.

Mr. Orozco pled guilty and the district court sentenced him before State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), which said that a departure must be based on substantial and compelling circumstances which a plea agreement is not.  Misquadace is not retroactive.  So, the merits of Mr. Orozco’s claim turned on whether he made an adequate waiver of his right to be sentenced under the Guidelines.  State v. Givens, 544 N.W.2d 774 (Minn. 1996).  Again, however, no one went there.

Instead, the court decides to split hairs over what is and is not controlled by Rule 27, which so far has not been construed to have a limitations period.  It’s hard to discern what the rule is but it seems to turn on the public’s interest in the finality of a sentence and the public’s interest in a correct sentence, with the public’s interest in the finality of a conviction tossed into the mix.  Here, there was a bit of all three.  Mr. Orozco’s claim at least raised the specter of an “incorrect sentence;” but, if Mr. Orozco could weasel out of the sentence then the state had the right to bail out of the conviction.  State v. Lewis, 656 N.W.2d 535 (Minn. 2003).  Finality of a conviction apparently trumps the correctness of the sentence flowing from that conviction.  Vazquez v. State, 822 N.W.2d 313 (Minn.Ct.App. 2012).  So, Mr. Orozco’s Rule 27 motion is really a post conviction petition,and under that statute it is time barred.