This opinion will be unpublished and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
Larry Allen Delaney,
Filed February 7, 2006
Reversed and remanded
Olmsted County District Court
File No. K6-96-3599
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street,
Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant
Mary M. McMahon, Special Assistant State Public Defender, 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)
Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from the denial of his postconviction petition for sentence modification, Larry Delaney argues that his sentence is not authorized by law and that the sentencing error resulted from ineffective assistance of counsel. Delaney waived his ineffective-assistance-of-counsel claim by failing to raise it in his petition or at his postconviction hearing. Because it is undisputed that Delaney’s sentence is not authorized by law and because correction of an illegal sentence is not barred by failure to raise it in a prior postconviction petition, we reverse and remand.
F A C T S
Larry Delaney pleaded guilty to two charges of second-degree criminal sexual conduct in April 1997. The district court sentenced him to two concurrent sentences of thirty-six months in a correctional facility and imposed a ten-year conditional-release term.
Delaney filed a petition for postconviction relief in September 2000 seeking to withdraw his guilty plea because, at the time of his plea, he was unaware that his sentence would include a mandatory conditional-release term. He did not, however, challenge the illegality of the ten-year conditional-release term. The district court denied his petition, and Delaney appealed to this court. We affirmed the district court’s order, and the supreme court denied review.
In September 2004, Delaney filed a motion under Minn. R. Crim. P. 27.03 to modify the ten-year conditional-release term in his sentence to a five-year conditional-release term because the longer term was unauthorized by law. The district court interpreted this motion as a request for postconviction relief and denied his motion because Delaney had failed to raise the issue in his first postconviction petition. Delaney appeals from this determination, claiming that his sentence was unlawful and that his attorney provided ineffective assistance of counsel by failing to challenge the length of the conditional-release term in the initial postconviction petition.
D E C I S I O N
The district court has jurisdiction “at any
time [to] correct a sentence not authorized by law.” Minn. R. Crim. P. 27.03, subd. 9. A motion for correction is within the
district court’s discretion, and we will reverse its ruling on appeal only when
the district court does not properly exercise discretion or the sentence is
unauthorized by law. State v. Stutelberg, 435 N.W.2d 632,
633-34 (Minn. App. 1989); see also
At sentencing, Delaney’s conditional-release
term was increased from five years to ten years based on a 1980 conviction in
the state of
Under rule 27.03, a district court has the
power to correct a sentence despite earlier denials of postconviction
relief. Stutelberg, 435 N.W.2d at 634; see
also State v.
Although Delaney failed to challenge the unauthorized sentence in his previous postconviction petition, this failure does not preclude the district court from correcting the sentence on a motion for modification of the sentence. Because the state acknowledges that the ten-year conditional-release term is unauthorized by law, we reverse and remand for correction of Delaney’s sentence.
Delaney alternatively argues that the conditional-release
term should be reduced from ten years to five years because the sentencing
error resulted from ineffective assistance of counsel. Delaney, however, did not raise this
alternative basis for relief in his postconviction petition or at the postconviction
hearing. See Ferguson v. State, 645 N.W.2d 437, 448 (
Reversed and remanded.