This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






John Frederick Kier, petitioner,


State of Minnesota,


Filed March 28, 2006

Reversed and remanded

Stoneburner, Judge


Polk County District Court

File No. KX021191


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


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


Gregory A. Widseth, Polk County Attorney, Suite 101, 223 East Seventh Street, Crookston, MN 56716 (for respondent)


            Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges denial of his petition for postconviction relief to correct a sentence under Minn. R. Crim. P. 27.03, subd. 9.  Because the district court erred in the order of sentencing, which affected the computation of appellant’s criminal-history score and the length of the felony sentence imposed, we reverse and remand for resentencing.



Appellant John Frederick Kier was convicted of first-degree felony refusal to test in violation of Minn. Stat. § 169A.20, subd. 2, and .24 (2002); driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2002); possession of an open bottle in violation of Minn. Stat. § 169A.35, subd. 2 (2002); and illegal transportation of firearms in violation of Minn. Stat. § 97B.045 (2002).  Based on Kier’s criminal-history score of five, the district court imposed an executed sentence of 66 months in prison for felony refusal to test.  The district court imposed a consecutive executed 12-month sentence for gross-misdemeanor driving after cancellation, under Minn. Stat. § 169A.28, subd. 1(3) (2002), which requires consecutive sentencing for “a violation of section 169A.20 and another offense arising out of a single course of conduct that is listed in subdivision 2, paragraph (e)[1], when the person has five or more qualified prior impaired driving incidents within the past ten years.”  Kier was sentenced to 90-day concurrent sentences for open-bottle and illegal transportation of firearms.

            On direct appeal, Kier challenged the probable cause for his arrest; execution, rather than stay, of the felony sentence; and the requirement that he serve the gross-misdemeanor sentence in prison, but he failed to challenge the order in which the consecutive sentences were imposed.  This court affirmed on all issues raised, and the supreme court denied review.  State v. Kier, 678 N.W.2d 672 (Minn. App. 2004), review denied (Minn. June 15, 2004) (Kier I).  Kier then petitioned for postconviction relief supported by a memorandum from the public defender, arguing that Kier is entitled to correction of his sentence under Minn. R. Crim. P. 27.03, subd. 9.  Specifically, Kier argued that the Minnesota Sentencing Guidelines require the felony sentence to be imposed consecutively to the gross-misdemeanor sentence and that his criminal-history score be reduced for computation of the duration of the felony sentence.  The district court considered the petition on the merits and denied relief, noting that the mandatory consecutive sentencing provision of Minn. Stat. § 168A.28 is not addressed by the sentencing guidelines and concluding that application of the guidelines requirements for calculation of criminal-history scores for presumptive consecutive sentences “does not make sense within the consecutive sentencing mandate of Minn. Stat. § 169A.28.”  This appeal followed.



I.                   Standard of review

            An appeal from an order denying a motion for sentence correction may be treated as an appeal from denial of postconviction relief.  State v. Stutleberg, 435 N.W.2d 632, 633 (Minn. App. 1989) (treating “post-conviction proceeding” as used in ABA standards on postconviction relief, which were adopted by supreme court in Tyson v. State, 298 Minn. 559, 214 N.W. 2d 461 (1974), overruled on different grounds by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), as broad enough to encompass a motion under Minn. R. Crim. P. 27.03, subd. 9, for purposes of discussion of whether Stutleberg’s sentencing challenge was procedurally barred).  An appellate court will “afford great deference to a district court’s findings of fact and will not reverse” a decision on postconviction relief absent clearly erroneous findings or an abuse of discretion.  Dukes v. State,621 N.W.2d 246, 251 (Minn. 2001).  Motions for sentence correction are committed to the district court’s discretion and will be reversed only when discretion is not properly exercised and the sentence is unauthorized by law.  State v. Cook, 617 N.W.2d 417, 419 (Minn. App. 2000), review denied (Minn. Nov. 21, 2000).

II.                Are Kier’s claims procedurally barred?

            A postconviction court will not consider matters that were either raised in a direct appeal or known at the time of direct appeal and not raised.  Knaffla, 309 Minn. at 252, 243 N.W. 2d at 741.  The Knaffla rule applies to matters the petitioner should have known about at the time of direct appeal.  Black v. State, 560 N.W.2d 83, 85 (Minn. 1997).  There are two exceptions to the rule: (1) a claim so novel that its legal basis was not reasonably available on direct appeal and (2) “where the interests of fairness require relief” and the claim is one that the petitioner did not “deliberately and inexcusably” fail to raise on direct appeal.  Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005).  “Claims decided in the interests of fairness and justice also require that the claims have substantive merit.”  Id.

            Kier does not argue that his claim falls within one of the Knaffla exceptions, but argues that he is entitled to consideration of his claim on the merits, citing Stutelberg, 435 N.W.2d at 636, in which this court granted review of a claim that affected sentencing out of concern that no reviewing court had ever reached the merits of the issue raised.[2]  We concur with the district court’s observation that “[t]he circumstances under which Knaffla applies to bar a post-conviction proceeding to correct a sentencing error is not clear.”  Although Kier, unlike Stutelberg, has received review of his sentence on the merits by the district court, we conclude that the district court’s review of the merits warrants appellate review rather than dismissal on procedural grounds.[3]  In the interest of justice, we will review Kier’s claim on the merits. 

III.             The guidelines provisions for presumptive consecutive sentences apply to sentences under Minn. Stat. § 169A.28

            In Kier I,we noted that the presumptive duration of Kier’s sentence, “like all sentences in Minnesota, is controlled not only by relevant statutory mandates, but also by the Minnesota Sentencing Guidelines.”  678 N.W.2d at 676-77.  In State v. Holmes, 701 N.W.2d 267, 272-73 (Minn. App. 2005),[4] review granted (Minn. Oct. 26, 2005), we held that although the Minnesota Sentencing Guidelines do not expressly address the mandatory consecutive sentences required by Minn. Stat. § 169A.28, consecutive sentences under Minn. Stat. § 169A.28 are “presumptive” consecutive sentences under the guidelines and are not a departure from the guidelines.  We further held that the guidelines apply to such sentences.  Id. Therefore, the duration of a consecutive felony sentence imposed under Minn. Stat. § 169A.28 is calculated using a criminal-history score of one or the mandatory minimum for the offense, whichever is greater.  Id.; see Minn. Sent. Guidelines II.F. and cmt. II.F.02 (providing for reduction of criminal-history score to one for each presumptive consecutive offense that is sentenced consecutive to another offense). 

            Minn. Sent. Guidelines II.F also requires that consecutive sentences must be imposed in the order in which the offenses occurred.  Therefore, Kier is correct that the sentence for felony refusal to test should have been imposed consecutively to the sentence for gross-misdemeanor driving after cancellation, because the driving-after cancellation offense occurred prior to his refusal to test.  Because the felony sentence should have been imposed consecutively to the gross-misdemeanor sentence, the duration of the felony sentence should have been determined using a criminal-history score of one.  Based on a criminal-history score of one, the presumptive duration of Kier’s felony sentence is 42 months, which, imposed consecutively to the 12-month gross-misdemeanor sentence, results in an aggregate sentence of 54 months.  But, in this case, concurrent sentencing of Kier’s gross-misdemeanor and felony convictions would result in a presumptive sentence of 66 months.  Because 54 months is less time in prison than would result from concurrent sentencing, the guidelines further provide that the presumptive sentence is concurrent sentencing.  See Minn. Sent. Guidelines II.F (providing that if the total time to serve in prison under the scheme of determining the duration of a presumptive consecutive sentence would be longer if a concurrent sentence is imposed, “a concurrent sentenceis presumptive”).

            We recognize that imposing a concurrent sentence negates the mandatory consecutive-sentencing language of the statute, but we agree with the state that the legislature’s purpose in mandating consecutive sentences under Minn. Stat. § 169A.28 was to increase, not decrease, the length of sentences for some offenders.  Clearly the legislature did not intend that an offender such as Kier, who has five prior qualifying offenses, would benefit by receiving a reduced sentence through consecutive sentencing.  We conclude, therefore, that under the unique circumstances of this case, in order to best satisfy the legislative intent without violating the carefully constructed scheme of the sentencing guidelines, the correct sentence for Kier is concurrent sentencing of the gross misdemeanor and felony, resulting in a 66-month aggregate sentence.  The sentences imposed by the district court are vacated, and the matter is remanded for resentencing consistent with this opinion.

            Reversed and remanded.

[1] Section 171.24 is listed in Minn. Stat. § 169A.28, subd. 2(e)(7)(2002).

[2] In Stutelberg, we noted that the cases relied on for the proposition that a claim was procedurally barred nonetheless reviewed the merits of the claims.  Id. at 635-36 (citing Case v. State,364 N.W.2d 797 (Minn. 1985), and Ware v. State, 284 Minn. 525, 169 N.W.2d 16 (1969), cert. denied 396 U.S. 875 (1969)).

[3] The state also argues that the law of the case bars review of this claim, noting that in appellant’s direct appeal we stated that the guidelines do not apply to gross misdemeanors.  See Kier I,678 N.W.2d at 677.  But Kier’s claim involves application of the guidelines to his felony sentence, not his gross-misdemeanor sentence, so the state’s law-of-the-case argument is without merit.

[4] Holmes was released after the postconviction court had denied Kier’s petition.