This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Michael Andrew Edwards,
Filed August 9, 2005
Toussaint, Chief Judge
Hennepin County District Court
File No. 00117698
Mike Hatch, Attorney General, 1800
Bremer Tower, 445 Minnesota St.,
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent/appellant State of Minnesota);
John M. Stuart, State Public
Defender, Bridget Kearns Sabo, Assistant State Public Defender,
Considered and decided by Toussaint, Chief Judge; Schumacher, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
This consolidated appeal is from an order denying appellant’s motion under Minn. R. Crim. P. 27.03, subd. 9, to correct the Hernandez sentencing used by the trial court but granting his motion to vacate an upward durational departure under Blakely. This court consolidated appellant’s appeal from the first part of the order with the state’s appeal from the second and granted appellant’s motion for expedited review. Because there was no error in the use of Hernandez sentencing and because the upward durational departure violates appellant’s Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), we affirm.
Appellant Michael Edwards was charged with multiple counts of theft by swindle, securities fraud, and tax evasion. The complaint alleged that Edwards had swindled, or committed securities fraud against, a number of individual victims; the owners of a small business, Powerlink; and an investment group; and had failed to pay state personal income tax from 1997 to 2000 and corporate income tax in 1997 and 1998.
Edwards moved to sever the charges for trial, arguing that his alleged conduct occurred over a period of years and involved different victims. The trial court denied the motion, ruling that “all the offenses were so factually entangled that they could not properly be severed.” Edwards was found guilty on 15 counts, after the trial court had dismissed some counts for lack of proper venue.
At sentencing, the trial court found that Edwards could be punished only for the theft by swindle conviction, not for the securities-fraud conviction against the same victim. Of the 15 counts, that left two counts of evasion of corporate income taxes, four counts of evading personal income taxes, and four counts of theft by swindle.
On the tax-evasion counts for 1997 and 1998, the trial court sentenced Edwards to stayed sentences of a year and a day; 13 months; 15 months; and 17 months, respectively, using the presumptive sentence durations calculated under the Hernandez method, which counts criminal-history points for current offenses sentenced earlier on the same day.
The trial court found that four thefts by swindle were major economic offenses and imposed an upward durational departure to 36 months from the presumptive sentence of 30 months on one conviction; and upward durational departure to 78 months from the presumptive sentence of 45 months on another conviction; an upward durational departure to 72 months from the presumptive sentence of 57 months on a third conviction; and an upward durational departure to 60 months from the presumptive sentence of 57 months on the fourth conviction. The court also imposed, according to the warrant of commitment, concurrent sentences of 51 months on the fifth conviction of theft by swindle and 23 months each on the two remaining counts of tax evasion.
sentences were imposed using the Hernandez
method to calculate Edwards’s criminal-history score. A sentencing court may use as criminal-history
points other current convictions for which sentence was imposed earlier on the
Edwards appealed his conviction, arguing in part, that the trial court had erred in denying his motion to sever the charged offenses for trial because Minn. R. Crim. P. 17.03, subd. 3(1)(a), requires severance if the “charges are not related.”
court affirmed the conviction, holding the trial court did not abuse its
discretion by refusing to sever the individual counts for trial. State
v. Edwards, No. A03-780, 2004 WL 1488527, at *3 (
Instead of filing a postconviction petition, Edwards filed a motion under Minn. R. Crim. P. 27.03, subd. 9 seeking correction of his sentence. Edwards argued that Hernandez method should not have been used because his current offenses were part of a single behavioral incident and that Blakely required that the upward durational departures be vacated.
The trial court granted the motion in part and denied it in part in an order issued on February 10, 2005. The court concluded that Edwards had waived the Hernandez issue, by failing to raise it on direct appeal, despite being aware of the issue and even mentioning it in a footnote. But, the court concluded that Edwards was entitled to relief under Blakely because his direct appeal was pending at the time that Blakely was released. Both parties have appealed the February 10 order.
Edwards argues that the district court erred in concluding that Knaffla bars his challenge to Hernandez sentencing.
raised in direct appeal, or known but not raised, may not be considered in a
postconviction proceeding. State v. Knaffla, 309
We need not decide the Knaffla issue in this case, however, because we conclude that Edwards’ challenge to Hernandez sentencing is without merit. We note, however, that the language of rule 27.03, subd. 9, that “[t]he court at any time may correct a sentence not authorized by law” refers to the authority of the court and does not necessarily confer on defendants to right to make the motion at any time.
Edwards argues that it was improper for the trial court to sentence him using the Hernandez method because his offenses were part of a single behavioral incident. Edwards contends that this court’s earlier opinion affirming joinder determined that the 15 counts on which he was convicted were part of a single behavioral incident.
The guidelines limit the accumulation of
criminal-history points based on a single course of conduct or behavioral
incident, even when there are multiple victims, to the two most severe
Edwards argues that this court’s prior
opinion “conclusively determined” that his offenses were “limited in time and
place” and that the determination is binding as “law of the case.” But on the contrary, the opinion indicated
that the offenses “took place over a long period of time.” Edwards, 2004 WL 1488527, at *2-*3. The opinion’s holding that the offenses were
so “tightly interwoven” that they “could not reasonably be separated for
trial,” id., and “so factually intertwined and dependent on each other
that they were properly joined for one trial,” id. at *3, did not imply
that the offenses were “limited in time and place” or part of a “single
behavioral incident.” Therefore, the
“law of the case” doctrine does not apply.
See generally In re Welfare of M.D.O., 462 N.W.2d 370, 375 (
There is no legal support for holding that
Edwards’s theft-by-swindle, securities-fraud, and tax-evasion offenses,
occurring over a period of more than two years and involving multiple victims,
were a “single behavioral incident.”
The state argues that Blakely does
not apply to the departures imposed here under the Minnesota Sentencing
Guidelines because Blakely has been interpreted as being inapplicable to
“advisory” guidelines schemes.
review decisions regarding the application of Blakely to our sentencing
guidelines de novo.
addresses Blakely’s application to
the federal sentencing guidelines but also indicates that Blakely would
not apply to “advisory” guidelines. 125
The state also relies on Booker to
argue that the denial of Edwards’s right to a jury trial under Blakely
was not plain error, or at least was harmless. The state does not cite any
The state cites United States v. Cotton,
The Supreme Court in Booker indicated
it expected reviewing courts to “apply ordinary prudential doctrines,”
including plain error, in reviewing Blakely errors. Booker, 125
 The supreme court has also granted further review of a
decision of this court declining to apply plain error analysis to Blakely error, State v. Greathouse, No. A04-335 (Minn. App. Feb. 15, 2005), review denied (