This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Richard Alan Folden,





State of Minnesota,




Filed July 17, 2001


Amundson, Judge


Clay County District Court

File No. K3-92-1453


Richard A. Folden, MCF-Stillwater, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)


Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Lisa N. Borgen, Clay County Attorney, P.O. Box 280, Moorhead, MN 56561 (for respondent)


            Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge. *


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.



U N P U B L I S H E D  O P I N I O N


On appeal from the district court’s denial of a petition challenging his sentence, appellant argues that his sentence was impermissibly augmented by facts found by the court rather than by the jury and that he should have been appointed counsel.  We affirm.


In 1993, Richard Alan Folden was convicted of criminal sexual conduct for sexual abuse of his daughter over a three and one-half year period under Minn. Stat. § 609.342, subd. 1(h)(v) (1990) (now codified at Minn. Stat. § 609.342, subd. 1 (h)(iii) (2000)).  Prior to this conviction, Folden had been twice convicted of second and third degree criminal sexual conduct.  Pursuant to Minn. Stat. § 609.346, subd. 2a (a)(2) (1990) (the Minnesota Repeat Sexual Offender Statute), the district court imposed a mandatory sentence of 444 months imprisonment.

Folden appealed his conviction, arguing insufficient evidence, and this court affirmed his conviction.  State v. Folden, No. C8-93-1025 (Minn. App. Jan. 26, 1994) (order op.), review denied (Minn. Mar. 15, 1994).  In 1997, Folden filed a petition for postconviction relief arguing, in relevant part, that his sentence violated the double jeopardy clause and constituted cruel and unusual punishment.  The district court denied this petition and we affirmed.  Folden v. State, No. C8-97-1244 (Minn. App. Dec. 30, 1997).  In 1999, Folden filed a second postconviction petition, arguing several conflicts and biases in his sentencing.  This petition was summarily denied, and this court affirmed the summary denial.  Folden v. State, No. C9-99-1905 (Minn. App. Aug. 8, 2000), review denied (Minn. Oct. 5, 2000).  On August 18, 2000, Folden moved the court to vacate, set aside or correct his sentence, claiming that his sentence was unlawful under the recent decision of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).  The district court denied this motion and this appeal followed.


Folden first suggests that the repeat sexual offender statute illegally increased his sentence without jury findings.  Folden then argues that the district court was obligated to modify his sentence accordingly.  A court may, at any time, correct a sentence not authorized by law.  Minn. R. Crim. P 27.03, subd. 9.  Motions for correction are committed to the district court's discretion and this court will only reverse a decision on such a motion when that discretion is not properly exercised and the sentence is unauthorized by law.   State v. Cook, 617 N.W.2d 417, 419 (Minn. App. 2000).

Folden’s argument that his sentence was unauthorized is premised on a misunderstanding of the case law.  In Apprendi, the United States Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be proved beyond a reasonable doubt.  530 U.S. at 490, 120 S. Ct at 2362-63.  But Apprendi specifically held that prior convictions were excepted from this constitutional requirement, id., and Folden’s sentence was augmented by the fact of his prior convictions alone.

Folden next argues that the district court should have appointed counsel to argue his motion.  The state argues that Folden waived this claim by not raising it in the district court.  See State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989) (appellate court usually will not decide issues, even constitutional, that are not first addressed by district court). But, in a motion filed August 23, 2000, Folden requested an order appointing counsel.  Thus, this claim was not waived.  Nevertheless, “the [constitutional] right to appointed counsel extends to the first appeal of right, and no further.”  Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987).  The Minnesota legislature has not provided any additional statutory rights.  See Minn. Stat. 611.14(2) (2000) (providing a right to counsel for indigent defendants “who ha[ve] not already had a direct appeal of the conviction”).  Folden had neither the constitutional nor statutory right to appointed counsel.