This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Shah Aziz, petitioner,
State of Minnesota,
Filed April 17, 2007
Hennepin County District Court
File No. 98063932
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a district court
order denying his motion to correct his 1999 sentence for kidnapping, appellant
argues that he received multiple sentences for a single behavioral incident and
that his sentence violates the rule announced in Apprendi v.
In 1998, appellant Shah Aziz was charged with soliciting prostitution, in violation of Minn. Stat. § 609.322, subd. 1a(1) (1996), and kidnapping, in violation of Minn. Stat. § 609.25, subds. 1(2), 2(1) (1996). The state later amended the kidnapping charge to allege that the victim was not released in a safe place, in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (1996).
January 1999, a jury found Aziz guilty on both counts and answered “No” to a
verdict-form question asking whether the victim was released in a safe place. On March 3, 1999, the district court imposed
a 216-month sentence for the kidnapping offense and a concurrent 19-month sentence
for the soliciting-prostitution offense.
The 216-month sentence was a double upward departure from the 108-month
guidelines sentence for kidnapping. In
imposing the upward departure, the district court relied on its findings under the
dangerous-offender statute. Minn. Stat.
§ 609.152, subd. 2 (1996). Aziz
appealed, and this court affirmed the conviction. State
v. Aziz, No. C8-99-910, 2000 WL 1100222 (
October 29, 2001, Aziz filed a petition for postconviction relief alleging
ineffective assistance of trial and appellate counsel. The district court denied the petition, and
this court affirmed in part and remanded in part on a witness-recantation
issue. Aziz v. State, No. C3-02-79 (
October 7, 2002, Aziz filed a number of other petitions for postconviction
relief, motions to correct his sentence under Minn. R. Crim. P. 27.03, subd. 9,
and motions for a new trial under Minn. R. Crim. P. 26.04. In these filings, Aziz argued for the first
time that the district court erred in allowing the state to amend the kidnapping
charge and that his sentence was unlawful because the amendment increased the
severity of the offense and the upward departure under the dangerous-offender
statute violated the rule announced in Apprendi. The district court, in a July 22, 2003 order,
denied Aziz’s petition because all of the issues raised were known but were not
raised on direct appeal or in previous petitions. Aziz appealed, and this court affirmed the
denial of the petition. Aziz v. State, Nos. A03-1359, A03-1626 (
In June 2004,
the Supreme Court announced its decision in Blakely
v. Washington, 542
D E C I S I O N
district court treated Aziz’s motion to correct his sentence as a petition for
postconviction relief. See Minn. R. Crim. P. 27.03, subd. 9
(“The court at any time may correct a sentence not authorized by law.”); see also
State v. Stutelberg, 435 N.W.2d 632,
635 (Minn. App. 1989) (noting that a rule 27.03 motion to correct sentence may
be considered a postconviction proceeding).
The district court “may summarily deny a second or successive petition
for similar relief on behalf of the same petitioner and may summarily deny a
petition when the issues raised in it have previously been decided by the Court
of Appeals or the Supreme Court in the same case.” Minn. Stat. § 590.04, subd. 3 (2006); see Spears
v. State, 725 N.W.2d 696, 700 (
review a postconviction court’s findings to determine whether there is
sufficient evidentiary support in the record” and “will not reverse the
findings unless they are clearly erroneous.”
Dukes v. State, 621 N.W.2d
246, 250-51 (
argues that the postconviction court erred in summarily denying his request for
postconviction relief because “a defendant cannot waive a challenge based on
multiple-sentencing issues.” State v. Johnson, 653 N.W.2d 646, 650 (
The sentencing provision of the kidnapping statute states that “if the victim is released in a safe place without great bodily harm,” the offender may be sentenced to prison for up to 20 years. Minn. Stat. § 609.25, subd. 2(1) (1996). But “if the victim is not released in a safe place,” the offender may be sentenced to prison for up to 40 years. Minn. Stat. § 609.25, subd. 2(2) (1996). Aziz argues that by allowing the state to amend the kidnapping charge from subdivision 2(1) to 2(2) and sentencing him for kidnapping and not releasing the victim in a safe place, the district court imposed multiple sentences for the same behavioral incident. See Johnson, 653 N.W.2d at 651-52 (discussing what court must consider in deciding whether multiple offenses arise from single behavioral incident). Aziz contends that when the district court calculated the presumptive sentence to be 108 months, the sentence included 54 months for kidnapping and 54 months for not releasing the victim in a safe place. But the district court did not impose two sentences for kidnapping; the district court determined that the guidelines sentence for kidnapping without releasing the victim in a safe place was 108 months. Because the district court did not impose multiple sentences for the kidnapping offense, the postconviction court did not abuse its discretion in denying Aziz’s request for relief on this issue.
Aziz argues that the district court’s reliance on the dangerous-offender statute, Minn. Stat. § 609.152, subd. 2 (1996), to impose an upward departure violates Apprendi because the facts relied on to impose the departure were not charged in the complaint or found by a jury. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000) (holding that any fact other than prior conviction that increases penalty above statutory maximum must be put to jury and proved beyond a reasonable doubt). Although Aziz’s direct appeal was pending when the Supreme Court announced its Apprendi decision in 2000, Aziz waived this issue by failing to raise it during his direct appeal or in his October 2001 petition for postconviction relief when this claim was, or should have been, known. See Spears, 725 N.W.2d at 700 (determining that although petitioner did not pursue Apprendi claim on direct appeal, he was entitled to relief because he raised the issue in postconviction petition within 90 days of denial of petition for further review).
case was final when the Supreme Court announced its decision in Blakely v. Washington, 542