This opinion will be unpublished and

may not be cited except as provided by

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






Timothy Roy Clark, petitioner,


State of Minnesota,


Filed December 5, 2006


Peterson, Judge


Hennepin County District Court

File No. 01050307


Timothy Roy Clark, #208560 MCF – Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082-1117 (pro se appellant)


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


Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge,

U N P U B L I S H E D   O P I N I O N


            In this appeal from the denial of his motion for correction of his sentence under Minn. R. Crim. P. 27.03, subd. 9,[1] pro se appellant Timothy Roy Clark argues that the consecutive sentences that he received for two convictions of second-degree murder violate (a) his right under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), to have a jury determine the facts upon which a sentence is based; and (b) the prohibition under Minn. Stat. § 609.035, subd. 1 (2004), against punishing a person for more than one offense if the person’s conduct constitutes more than one offense.  We affirm.


            Clark was charged with four counts of first-degree murder and two counts of second-degree murder for causing the deaths of his mother and father by stabbing them while they slept.  Clark pleaded guilty to two counts of second-degree murder, and the first-degree-murder charges were dismissed.

            The district court sentenced Clark to serve a 300-month prison term for each second-degree-murder conviction, with the sentences to run consecutively.  Clark did not appeal the convictions or the sentences.  After the United States Supreme Court released its opinion in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), Clark filed a motion for correction of sentence under Minn. R. Crim. P. 27.03, subd. 9, claiming that under Blakely and State v. Fairbanks, 688 N.W.2d 333 (Minn. App. 2004) (applying Blakely to sentence imposed under dangerous-offender statute), review granted (Minn. Jan. 20, 2005) and order granting review vacated (Minn. Dec. 13, 2005), the consecutive sentences are unlawful because the district court’s decision to have the sentences run consecutively was based solely on findings made by the district court, rather than a jury.  The district court denied the motion, and this appeal followed.


            An appellate court “will not reevaluate a sentence if the trial court’s discretion has been properly exercised and the sentence is authorized by law.”  State v. Stutelberg, 435 N.W.2d 632, 633-34 (Minn. App. 1989) (quoting Fritz v. State, 284 N.W.2d 377, 386 (Minn. 1979)). 

            Clark argues that sentencing him to serve consecutive 300-month terms for each second-degree murder conviction was an upward departure and violated his right to have a jury determine his sentence under the Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  But Clark is incorrect that there was an upward sentencing departure. 

            Clark pleaded guilty to two counts of second-degree murder involving two separate victims.  When multiple felonies involve multiple victims, consecutive sentences are permissive and within the broad discretion of the district court; they are not a departure from the sentencing guidelines.  Minn. Sent. Guidelines II.F.2 (2000) (providing that “[m]ultiple current felony convictions for crimes against persons may be sentenced consecutively to each other”); see State v. Richardson, 670 N.W.2d 267, 284-85 (Minn. 2003) (finding the district court did not abuse its discretion in sentencing to consecutive sentences where multiple victims were involved); State v. Whittaker, 568 N.W.2d 440, 453 (Minn. 1997) (affirming multiple consecutive sentences in a case involving multiple victims).  Clark does not dispute that with his criminal-history score, the presumptive sentence for second-degree murder under the sentencing guidelines is 299 to 313 months.  Minn. Sent. Guidelines IV (2000).  The district court sentenced Clark to 300 months for the first count of second-degree murder and 300 months for the second count of second-degree murder to be served consecutively.  Under these circumstances, imposing consecutive sentences was not a sentencing departure.  Because Clark’s sentence was not an upward departure, Blakely does not apply, and we do not address Clark’s argument that Blakely should be retroactively applied to his sentence. 

            A district court’s sentencing decision on permissive, consecutive sentencing will not be disturbed unless the resulting sentence unfairly exaggerates the criminality of the defendant’s conduct.  State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998).  On this record, consecutive sentences of 300 months on the first count and 300 months on the second count did not unfairly exaggerate the criminality of Clark’s conduct. 

            Clark also argues that consecutive sentences are not permitted because both of his offenses were committed at the same time.  In support of this argument, Clark cites Minn. Stat. § 609.035, subd. 1 (2004), which states that “if a person’s conduct constitutes more than one offense under the laws of this state, the person may be punished for only one of the offenses and a conviction or acquittal of any one of them is a bar to prosecution for any other of them.”  But the supreme court has explained that in passing this statute, “‘the legislature did not intend in every case to immunize offenders from the consequences of separate crimes intentionally committed in a single episode against more than one individual.’”  State v. Prudhomme, 303 Minn. 376, 379, 228 N.W.2d 243, 245 (1975) (quoting State ex rel. Stangvik v. Tahash, 281 Minn. 353, 360, 161 N.W.2d 667, 672 (1968)).  Even though the multiple offenses in Prudhomme were committed in a single behavioral incident, the supreme court held that the defendant could be sentenced for one crime against each victim.  Id.  Similarly, because Clark’s offenses were committed against two victims, Clark may be sentenced for one crime against each victim.  Furthermore, Clark did not raise this issue in the district court, and issues not litigated before the district court cannot be raised for the first time on appeal.  See Hirt v. State, 309 Minn. 574, 575, 244 N.W.2d 162, 162 (1976) (on appeal from an order denying postconviction relief, the court declined to address issues not litigated in the district court).  


[1] Clark contends that respondent State of Minnesota mischaracterized his motion as a petition for postconviction relief under Minn. Stat. §§ 590.01-.04 (2004 & Supp. 2005).  But this court has recognized Minn. R. Crim. P. 27.03, subd. 9, as a basis for postconviction relief and has construed an order denying sentence modification as a postconviction order.  See State v. Stutelberg, 435 N.W.2d 632, 633 (Minn. App. 1989) (motion to correct sentence termed a “motion for postconviction relief”).