This opinion will be unpublished and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
State of Minnesota,
Filed August 15, 2006
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
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
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 (
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
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 (
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
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 (
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
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.