This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Jose A. Rivera, Jr., petitioner,


State of Minnesota,


Filed September 2, 2003


Peterson, Judge


Hennepin County District Court

File No. 93085826


Jose Antonio Rivera, Jr., #155629 MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN  55767-9449 (pro se appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from an order denying a postconviction petition challenging his aggravated-robbery and kidnapping convictions and sentences, appellant Jose Antonio Rivera, Jr., argues that because aggravated robbery was the predicate crime committed during the kidnapping, he could not be separately convicted of and sentenced for the kidnapping.  We affirm.


            On September 26, 1993, at about 12:30 a.m., Rivera, wearing a mask and armed with a handgun, entered a fast-food restaurant.  After ordering the restaurant’s employees to the floor, Rivera directed one of the employees to open the safe.  Rivera removed the cash from the safe and then directed the employees to enter a cooler.  Rivera rolled a cart in front of the cooler door and then fled.  Throughout the robbery, Rivera kept his gun pointed at the employees.

            Rivera was charged by amended complaint with one count each of aggravated robbery and kidnapping.  A jury found him guilty as charged.  The district court sentenced Rivera to an executed term of 68 months in prison for the aggravated-robbery conviction and a concurrent, executed term of 78 months in prison for the kidnapping conviction.

            Rivera filed a direct appeal, challenging the convictions.  This court affirmed.  State v. Rivera, No. C8-94-1830 (Minn. App. Oct. 24, 1995), review denied (Minn. Dec. 20, 1995).  On December 10, 2002, Rivera filed a petition for postconviction relief, arguing that he should only have been sentenced for the aggravated-robbery conviction, that his sentence constituted an impermissible departure from the guidelines, and raising several constitutional claims.  The district court denied Rivera’s petition.  The only issue raised by Rivera in this appeal from the order denying postconviction relief is whether the district court erred in sentencing him for both the aggravated-robbery and kidnapping convictions.


            This court reviews a postconviction court’s decision only to determine whether the evidence is sufficient to sustain the postconviction court’s findings.  State v. Doppler, 590 N.W.2d 627, 632 (Minn. 1999).  We will not reverse a postconviction court’s decision absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

            Once a direct appeal has been taken, we will not consider [upon a subsequent petition for postconviction relief] matters that were raised on direct appeal or claims known at that time but not raised.  The exceptions to this rule are (1) a claim that is so novel that the legal basis was not available on direct appeal, or (2) a claim that petitioner did not “deliberately and inexcusably” fail to raise on direct appeal.  The exceptions are limited to the extent that fairness requires consideration of such a claim.


Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001) (citations omitted).

            Rivera argues that Minn. Stat. §§ 609.035, .04 (1992), bar the kidnapping conviction and sentence because the kidnapping arose out of the same behavioral incident as the aggravated robbery and the kidnapping was necessarily proved if the aggravated robbery was proved.  The district court properly concluded that these issues were known or should have been known to Rivera at the time of direct appeal and, therefore, postconviction relief is not available.

            Regarding the merits, Minn. Stat. § 609.035 states:

Except as provided in sections 609.251, 609.585, 609.21, subdivisions 3 and 4, 609.2691, and 609.856, if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.


(Emphasis added.)

Minn. Stat. § 609.04, subd. 1 (1992), states:

Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.  An included offense may be any of the following:

            (1) A lesser degree of the same crime; or


                        . . . .    


            (4) A crime necessarily proved if the crime charged were proved[.]


But Minn. Stat. § 609.251 (Supp. 1993) states:  “Notwithstanding section 609.04, a prosecution for or conviction of the crime of kidnapping is not a bar to conviction of or punishment for any other crime committed during the time of the kidnapping.”  (Emphasis added.)

Thus, although Minn. Stat. §§ 609.035, generally bars multiple convictions and punishments for offenses that arise out of a single incident, and Minn. Stat. § 609.04, subd. 1, generally bars a conviction of an offense that is necessarily proved if the defendant is convicted of another crime, under the express language of these statutory provisions and of Minn. Stat. § 609.251, these general bars do not apply to bar a conviction of or punishment for a crime committed during a kidnapping.  Therefore, the district court did not err in sentencing Rivera for both kidnapping and aggravated robbery.

            Rivera cites State v. Fratzke, 354 N.W.2d 402, 410 (Minn. 1984), and State v. Rodriguez, 505 N.W.2d 373, 377 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993), to support his position.  Those cases involved felony-murder convictions.  In Fratzke, the defendant was convicted of aggravated robbery and felony murder, and the supreme court concluded that “under section 609.04, defendant cannot be convicted of both aggravated robbery and felony murder because aggravated robbery is an offense ‘necessarily proved’ if the felony-murder charge is proved.”  Fratzke, 354 N.W.2d at 410.  In Rodriguez, the defendant was convicted of felony murder and kidnapping, the predicate offense, and this court concluded that Rodriguez could not be adjudicated guilty and sentenced for both offenses.  Rodriguez, 505 N.W.2d at 377.  But Fratzke and Rodriguez were decided before Minn. Stat. § 609.251 was amended to include the language “[n]othwithstanding section 609.04.”  1993 Minn. Laws ch. 326, art. 4, §§ 16, 41. 

            Rivera also argues that Minn. Stat. § 609.251 should not apply to his kidnapping conviction because he did not abduct anyone.  But neither Minn. Stat. § 609.251 nor Minn. Stat. § 609.25 (1992), the statute defining the crime of kidnapping, distinguish between kidnappings involving abduction and kidnappings involving confinement.