This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2077

 

State of Minnesota,

Respondent,

 

vs.

 

Jose Santana,

Appellant.

 

Filed August 15, 2006

Affirmed

Kalitowski, Judge

 

Polk County District Court

File No. K1-96-372

 

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

 

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

 

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

 

            Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

This is an appeal from an order revoking appellant’s probation for a 1996 sentence for racketeering that was modified in 1997.  Appellant argues that although he requested both a modification of the duration of his sentence and a change in the disposition from executed to stayed to enable him to enter a federal boot camp program, the district court did not have authority to modify the lawful sentence.  Appellant also argues that because he made no personal appearance in 1997 on his request for sentence modification, the sentencing change was a nullity.  We affirm. 

D E C I S I O N

I.

            Although district courts are permitted, at any time, to correct sentences unauthorized by law, Minn. R. Crim. P. 27.03, subd. 9, a district court does not have discretion to modify a lawful, executed sentence.  State v. Hockensmith, 417 N.W.2d 630, 633 (Minn. 1988); Reesman v. State, 449 N.W.2d. 489, 490 (Minn. App. 1989).  The record reflects that in 1997, when appellant Jose Santana asked the district court to modify his sentence from 25 months executed to 110 months stayed, with 20 years of probation, appellant’s sentence had been executed.  He was approximately two months from his supervised-release date at the time of the district court’s modification.  Therefore, appellant is correct that the district court erred in modifying the terms of appellant’s lawful, executed sentence. 

            But unlike the situations in Hockensmith and Reesman, appellant is challenging the district court’s grant of relief that he and his attorney requested.  “The settled general rule is that a party cannot avail himself of invited error.”  McAlpine v. Fid. & Cas. Co., 134 Minn. 192, 199, 158 N.W. 967, 970 (1916); see also Majerus v. Guelsow, 262 Minn. 1, 11, 113 N.W.2d 450, 457 (1962) (stating that because “it was the attorney for the defendant who requested the trial judge’s action[,] defendant will not now be heard to attack that action”).  To allow appellant to successfully challenge his requested sentence modification would permit litigants to assert error in proceedings as grounds for appeal when they were merely unsatisfied with their requested results. 

            We recognize that the doctrine of invited error does not apply when the error is one of fundamental law.  State v. Gisege, 561 N.W.2d 152, 158 (Minn. 1997).  But here, we cannot say the district court’s error involves fundamental law because it does not implicate appellant’s due process rights.  In addition, the error does not result in prejudice to appellant, since he stated his assent to the modified terms in an affidavit and had the opportunity to benefit from the modified, stayed sentence.  See State v. Calmes, 632 N.W.2d 641, 647-49 (Minn. 2001) (articulating factors for determining whether due process rights were violated by a sentencing modification). 

            In support of his argument, appellant cites State v. Anyanwu, 681 N.W.2d 411, 415 (Minn. App. 2004), where this court held an appellant’s guilty plea to be invalid, despite his failure previously to challenge the plea, because the district court had improperly injected itself into plea negotiations.  But in Anyanwuthe district court explicitly promised the defendant a certain sentence in advance over the  state’s objection.  681 N.W.2d at 412.  Here, both appellant and the state approved appellant’s plea agreement, and the district court did not improperly inject itself into negotiations for the modified sentence. 

            Appellant also argues that the rules of criminal procedure prohibit modification of his sentence without his personal presence.  See Minn. R. Crim. P. 27.03, subd. 2 (stating that absent certain exceptions, the “[d]efendant must be personally present at the sentencing hearing at the time sentence is pronounced”).  Although appellant was personally present at the first sentencing hearing, he was incarcerated in South Dakota at the time he made the request to modify his sentence.  

            The Minnesota Supreme Court, however, has held that Minn. R. Crim. P. 27.03, subd. 2, “deals only with the original sentencing hearing, and not modifications to a sentence.”  Calmes, 632 N.W.2d at 650; see also State v. Powers,  654 N.W.2d 667, 679-80 (Minn. 2003) (holding that defendant’s absence during hearings on motion to dismiss counsel, on improper conduct between juror and prosecutor, and on questions raised by jury during deliberations did not constitute reversible error).  Appellant requested the modification while he was incarcerated in another state, and the record does not reflect that he asked to attend a hearing on his request.  Therefore, the district court did not err by failing to require appellant’s personal presence at a modification hearing.

            Finally, we agree with respondent state’s argument that appellant has waived his claim of improper sentence modification by appealing from a probation-revocation order after failing to raise the issue at the revocation hearing.  State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987).  Because appellant suggested and agreed to the sentencing modification, thereby precluding development of an adequate record at sentencing, he was required to raise the sentencing issue in his probation revocation hearing to obtain sentencing review in this revocation appeal.

II.

            Appellant also argues, in a pro se brief, that although he was represented by counsel in the modification proceedings, he was given inadequate opportunity to speak with his attorney and present his position to the district court.  We consider this argument to be a claim of ineffective assistance of counsel, which requires a showing that counsel’s representation fell below an objective standard of reasonableness.  Powers, 654 N.W.2d at 682.   “Considerable deference is given to the decisions of counsel in recognition of the wide range of reasonable professional conduct.”  Id. (citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984)).  Here there is no evidence that appellant’s counsel’s representation fell below an objective standard of reasonableness.  Appellant’s attorney acknowledged in writing that he had “fully explained” appellant’s “legal rights and the options available to him” and that he concurred in the modification agreement.  Further, appellant’s attorney presented a signed affidavit in which appellant stated that he understood the complete terms of the modified sentence, including the condition that he would serve the full 110-month sentence if the probation terms or conditions were violated, and that he was signing the affidavit freely and voluntarily.

            Finally, based on our review of the record, we conclude that appellant’s pro se argument that he was improperly denied the assistance of an interpreter is without merit. 

Affirmed.