This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Joseph Francis Munsch,


Filed February 13, 2007


Stoneburner, Judge


Mille Lacs County District Court

File No. 48K204000269


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


Jan Kolb, Mille Lacs County Attorney, Mille Lacs County Courthouse, 635 Second Street Southeast, Milaca, MN 56353 (for respondent)


John M. Stuart, Minnesota Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges his sentence, arguing that his due-process rights were violated when the district court resentenced him on remand from the supreme court without a hearing.  We affirm.



            Appellant Joseph Francis Munsch was convicted of attempted second-degree murder.  At the sentencing hearing, Munsch’s motion for a downward departure was fully argued, and Munsch had the opportunity to allocute and respond to the district court.  The district court denied the motion and sentenced Munsch to the presumptive guidelines sentence.

            On direct appeal, this court affirmed the sentence.  State v. Munsch, No. A04-1891, 2005 WL 2850331 at *2-*3 (Minn. App. Nov. 1, 2005), rev’d mem., (Minn. Jan. 25, 2006).  In an order opinion, the supreme court vacated this court’s decision and remanded to the district court for resentencing, stating that the district court may have been under the mistaken belief that Blakely[1] applied to downward departures.  State v. Munsch, No. A04-1891, (Minn. Jan. 25, 2006).

            On remand, the district court, without a hearing, resentenced Munch to the guidelines sentence, noting in its memorandum that, at the time the original sentence was imposed, the district court was not under the belief that Blakely applied to downward departures.  The district court stated that it “analogized the factual findings required under Blakely for an upward departure to illustrate the need for specific factual findings to justify a downward departure.”  The court further stated, “There was never any confusion that the trial court had the discretion to make the factual determination for a downward departure.”  This appeal followed.

            Munsch asserts that the failure of the district court to have a hearing on resentencing violated his right to due process.  Munsch cites Minn. Stat. § 244.10, subd. 1 (2004), which states: “Whenever a person is convicted of a felony, the court, upon motion of either the defendant or the state, shall hold a sentencing hearing.”  But even if we construed the statute to apply to resentencing, the record does not reflect that either Munsch or the state moved for a hearing on resentencing. 

            In State v. Sanders, we held that a defendant cannot be resentenced under a new theory unless the defendant is allowed a full hearing to argue the merits of the new theory.  644 N.W.2d 483, 488-89 (Minn. App. 2002).  But the district court in this case did not resentence Munsch under a new theory, rather the district court clarified that it found no facts to justify a downward departure from the sentencing guidelines.

            In State v. Calmes, the supreme court noted that the Minnesota Rules of Criminal Procedure do not prohibit the court from correcting a sentence in the absence of the defendant.  632 N.W.2d 641, 650 (Minn. 2001).  The supreme court stated that “the determination of whether a defendant should have a hearing on the imposition of conditional release to correct a sentence” should be left to the discretion of the sentencing court.  Id. 

            We conclude that abuse of discretion is the correct standard of review in this case because the matter was remanded to give the district court an opportunity to correct what the supreme court concluded might have been an erroneous assumption on the part of the district court concerning the application of Blakely to downward departures.  The remand did not mandate a hearing and did not implicate any new theory or entitle Munsch to make any additional argument to supplement what was presented to the district court at the original sentencing hearing.  Munsch essentially argues that he “should have had a chance to remind the court of the factors supporting a departure.”  But the district court stated in its resentencing order that it reconsidered the arguments of counsel prior to resentencing.  Under the circumstances of this case, Munsch’s due-process rights were not violated, and the district court did not abuse its discretion when it resentenced Munsch without a hearing.


[1] Blakely v. Washington, requires a jury determination of factors used to support an upward sentencing departure.  542 U.S. 296, 301-02, 124 S. Ct. 2531, 2536-37 (2004).