This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





George Edward Waddell,




Filed June 18, 2002

Affirmed in part and vacated in part

Halbrooks, Judge



Hennepin County District Court

File No. 9062092


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


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)




            Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges a postconviction order resentencing him on two counts of first-degree burglary.  Appellant argues that the district court erred when it resentenced him on both counts instead of resentencing only on the first count and by including a fine for an unrelated case on the warrant to commit.  Because respondent concedes that the fine for an unrelated matter should be vacated, we so order.  Because the district court otherwise acted within its discretion, we affirm. 


            On November 17, 1999, appellant George Edward Waddell pleaded guilty to two counts of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1 (1998).  The district court sentenced appellant to concurrent sentences of 120 months on count one under Minn. Stat. § 609.1095, subds. 2, 4 (1998) (the repeat felony-offender statute) and 57 months on count two. 

On September 10, 2001, appellant filed a petition for postconviction relief asserting that he was improperly sentenced because the career-offender statute did not apply to him.  The district court agreed.  But appellant also argued that, because he was only challenging the legality of the sentence for count one, the district court lacked authority to resentence him on count two, which he had not challenged.  The court rejected this argument, vacated the prior sentence as to both counts, and resentenced appellant to 59 months on count one and 21 months on count two, to be served consecutively.  After the postconviction hearing, the court administrator filed a warrant to commit that reflected the new sentences and included a $50 fine on an unrelated case.  This appeal follows.


A sentence constitutes a final judgment.  State v. Lindquist, 254 Minn. 28, 29, 93 N.W.2d 521, 523 (1958).  The district court has broad discretion to make sentencing decisions.  State v. Ford, 539 N.W.2d 214, 229 (Minn. 1995).  “That discretion vanishes once the sentence is executed,” because “the modification of an executed sentence without express statutory authorization is a legislative rather than judicial function,” and there is “no inherent judicial power to modify an executed sentence.”  Reesman v. State, 449 N.W.2d 489, 490 (Minn. App. 1989) (citations omitted).  But a district court “at any time may correct a sentence not authorized by law.”  Minn. R. Crim. P. 27.03, subd. 9. 

            We will not reverse a postconviction court’s decision absent an abuse of discretion and will consider only whether sufficient evidence supports the court’s conclusions.  Woodruff v. State, 608 N.W.2d 881, 884 (Minn. 2000). 

The parties and the district court agreed that appellant was improperly sentenced for count one under the career-offender statute and that Minn. R. Crim. P. 27.03 authorized the district court to correct that sentence.  Appellant argues that the district court lacked the authority under rule 27 to resentence appellant as to count two, which was neither illegal nor attributable to clerical error.  We disagree, and hold that the district court appropriately resentenced appellant on both counts.

We observe first that appellant’s petition for postconviction relief plainly requested that the district court vacate the sentencing order as to both “judgments of conviction and sentences of the Hennepin County District Court, dated December 14, 1999,” and not only as to count one.  Because he asked the district court to vacate both sentences, appellant cannot now challenge the court’s decision to do so.

            Appellant argues that by making the sentences consecutive, the district court violated his due process rights by enhancing the term of the unchallenged sentence, thereby punishing him for exercising his statutory right to seek postconviction relief.  “[D]ue process may be violated when a defendant’s sentence is enhanced after the defendant has developed a crystallized expectation of finality in the earlier sentence.”  State v. Calmes, 632 N.W.2d 641, 645 (Minn. 2001). 

But a defendant

has no legitimate expectation of finality in any discrete part of an interdependent sentence after a partially successful appeal or collateral attack, [and] there is no double jeopardy bar to enhancing an unchallenged part of an interdependent sentence to fulfill the court’s original intent.


United States v. Harrison, 113 F.3d 135, 138 (8th Cir. 1998) (citations omitted); see also Gardiner v. United States, 114 F.3d 734, 736 (8th Cir. 1997) (a defendant making a collateral attack on a portion of a judgment “is reopening the entire judgment and cannot selectively craft the manner in which the court corrects that judgment”).

            The record is clear that the original sentences on both counts were interdependent elements of the district court’s decision to sentence appellant to approximately ten years in prison.  At a hearing before sentencing, the district court indicated that it would be uncomfortable with a sentence shorter than ten years, given appellant’s criminal-history score.  One term of the sentencing agreement was that appellant would be allowed to withdraw his plea if the district court sentenced him to more than 120 months. 

            In this context, appellant’s reliance on Tauer v. State, 451 N.W.2d 649, 650 (Minn. App. 1990), review denied (Minn. Mar. 16, 1990), for the proposition that the sentencing court cannot change a legally imposed sentence, is misplaced.  In Tauer, the sentence was not an interdependent part of a package, and alteration of the challenged sentence would not frustrate the intent of the sentencing court.  Id.

            Finally, appellant challenges the district court’s authority to increase the total length of his sentence on resentencing.  Appellant cites to State v. Holmes, 281 Minn. 294, 298, 161 N.W.2d 650, 653 (1968), for the proposition that “any increase in penalty upon a retrial inevitably discourages a convicted defendant from exercising his legal rights and is contrary to public policy.”  He also cites to State v. Montjoy, 354 N.W.2d 567, 568 (Minn. App. 1984), for the proposition that

[t]he Constitution prohibits resentencing to a term which is within the original authority of the sentencing court but greater than the term properly chosen when sentencing first occurred.


(Citation omitted.)  Holmes and Montjoy are inapposite because, as appellant himself concedes, he did not receive an increased prison term at resentencing.  Appellant is apparently arguing that the second sentence constitutes an increased penalty not because it is longer than the original sentence, but because it is longer than the sentence appellant is requesting be imposed.  This argument is unsupported by any authority.  

            The postconviction court did not abuse its discretion when it resentenced appellant on both counts and ordered that appellant serve the sentences consecutively. 

The fine of $50 for an unrelated matter is vacated.

Affirmed in part and vacated in part.