This opinion will be unpublished and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
Frederick Kier, petitioner,
State of Minnesota,
Reversed and remanded
Polk County District Court
File No. KX021191
John M. Stuart, State
Public Defender, Michael F. Cromett, Assistant Public Defender,
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.
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), 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 (
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
II. Are Kier’s claims procedurally barred?
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,
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. 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. In the interest of justice, we will review Kier’s claim on the merits.
guidelines provisions for presumptive consecutive sentences apply to sentences
Kier I,we noted that the presumptive duration of Kier’s sentence, “like
all sentences in
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.
 Section 171.24 is listed in Minn. Stat. § 169A.28, subd. 2(e)(7)(2002).
we noted that the cases relied on for the proposition that a claim was
procedurally barred nonetheless reviewed the merits of the claims.
 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.
 Holmes was released after the postconviction court had denied Kier’s petition.