This opinion will be unpublished and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
Timothy Roy Clark,
State of Minnesota,
Filed December 5, 2006
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
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,
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,
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.
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.
district court sentenced Clark to serve a 300-month
prison term for each second-degree-murder conviction, with the sentences to run
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.
D E C I S I O N
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)).
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
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.
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.
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).