This opinion will be unpublished and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
Stanley Warren Burch, petitioner,
Filed April 25, 2006
Hennepin County District Court
File No. 97045286
Stanley W. Burch, OID# 101571, MCF – Moose Lake, 1000 Lake Shore Drive, Moose Lake, MN 55767 (pro se appellant)
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a postconviction order vacating one of Stanley Burch’s three convictions as a lesser-included offense, Burch argues that the postconviction court abused its discretion by rejecting his additional requests to reduce his sentence, vacate another of his convictions, and grant relief under Blakely v. Washington, 542 U.S. 296, 124 S. Ct.2531 (2004). Because the district court did not impose a separate sentence on the vacated conviction, the remaining convictions do not involve a lesser-included offense, and Blakely does not apply retroactively, we affirm.
F A C T S
A jury found Stanley Burch guilty of
first-degree attempted murder, second-degree attempted murder, and first-degree
assault in October 1997. The district
court sentenced Burch to 240 months in prison on the first-degree, attempted-murder
conviction but did not impose separate sentences on the two remaining
convictions. The 240-month sentence was
an upward departure from the 210-month presumptive sentence under the Minnesota
Sentencing Guidelines. The district
court based the departure on its finding that Burch acted with particular
cruelty in committing the crime. On
direct appeal, we affirmed Burch’s convictions, and the supreme court denied
Burch’s petition for further review. State
v. Burch, No. C3-98-223, 1998
WL 811556 (Minn. App. Nov. 24, 1998), review
Burch petitioned for postconviction relief in December 2004 to correct or reduce his sentence under Minn. R. Crim. P. 27.03, subd. 9. The postconviction court granted the petition in part by vacating the second-degree, attempted-murder conviction. But the court denied Burch’s requests to vacate the assault conviction and to reduce his sentence.
Burch appeals pro se, arguing that the postconviction court abused its discretion by (1) refusing to reduce his sentence after vacating his conviction of second-degree attempted murder; (2) rejecting his argument that his assault conviction should also be vacated; and (3) declining to apply Blakely to reduce his 240-month sentence to the guidelines sentence of 210 months.
D E C I S I O N
postconviction court considered Burch’s petition under Minn. R. Crim. P. 27.03,
subd. 9, which permits the court to “at any time . . . correct
a sentence not authorized by law.” Appellate
courts will not reevaluate a sentence unless the district court abused its
discretion or the sentence is not authorized by law. Fritz
v. State, 284 N.W.2d 377, 386 (
Burch maintains that he is entitled to a reduction of his 240-month sentence because the postconviction court vacated his lesser-included offense of second-degree attempted murder. This argument misapprehends the district court’s original sentence. The district court imposed sentence after the jury determined that Burch was guilty of three charges arising from his conduct of throwing sulfuric acid on a woman and then beating her and cutting her with a knife. Consistent with Minn. Stat. § 609.035, subd. 1 (1996), which prohibits multiple sentences for the same behavioral incident, the district court sentenced Burch only on the conviction of first-degree attempted murder. Burch did not receive separate sentences for his convictions of second-degree attempted murder and first-degree assault.
The district court granted Burch’s postconviction request to vacate his second-degree, attempted-murder conviction because it is a lesser-included offense of the more serious conviction of first-degree attempted murder. See id. § 609.04, subd. 1(1) (1996) (precluding additional conviction for lesser-included offense). But vacating Burch’s lesser-included conviction of second-degree attempted murder does not affect the validity of the district court’s sentence on the first-degree, attempted-murder conviction, and Burch is not entitled to a reduction of that sentence.
Burch’s second argument is that the postconviction court should have vacated not only his second-degree, attempted-murder conviction, but also his first-degree-assault conviction because it is based on the same behavioral incident for which he was convicted of first-degree attempted murder.
argument confuses sections 609.04 and 609.035 of the
postconviction court properly denied Burch’s petition to vacate his assault
conviction because first-degree assault is not a lesser-included offense of first-degree
attempted murder. See State v. Gisege, 561 N.W.2d 152, 156 (
Burch’s final argument is that he is
entitled to postconviction relief from the sentence that he received in
November 1997 on the basis that, under Blakely,
the 30-month upward departure from the 210-month guidelines sentence violated
his Sixth Amendment right to a jury trial. See Blakely v. Washington, 542
This court affirmed Burch’s convictions in
1998, and the supreme court denied further review in 1999. State
v. Burch, No. C3-98-223, 1998 WL 811556 (Minn. App. Nov. 24, 1998), review denied (