This opinion will be unpublished and

may not be cited except as provided by

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





JoAnne Beard, petitioner,


State of Minnesota,



Filed December 4, 2007


Lansing, Judge



Hennepin County District Court

File No. 96032599


Rodd A. Tschida, Jason N. Bauer, 401 North Third Street, Suite 463, Minneapolis, MN 55401 (for appellant)


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


Michael O. Freeman, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)



            Considered and decided by Lansing, Presiding Judge; Dietzen, Judge; and Ross, Judge.


U N P U B L I S H E D   O P I N I O N


            JoAnne Beard was found guilty, in 1996, of second-degree unintentional murder for shaking an infant who was under her care and supervision.  Almost ten years later, Beard filed a petition for postconviction relief, and the district court denied the petition.  Because Beard’s claims are barred by the Knaffla rule, we affirm.


In December 1995 JoAnne Beard repeatedly shook a five-month-old infant who had been placed in her care in a home day-care business.  The infant died from shaken-baby syndrome.  After a jury trial, Beard was convicted of second-degree felony murder with third-degree assault as the predicate felony.  Although the presumptive sentence for her offense was 165 months, the district court imposed an upward departure to 360 months based on the victim’s vulnerability and Beard’s abuse of a position of trust.  On appeal, Beard’s conviction was affirmed, but her sentence was reduced to a double-upward departure of 330 months.  State v. Beard, 574 N.W.2d 87, 93 (Minn. App. 1998), review denied (Minn. Apr. 14, 1998).  The facts of this case are more fully described in that decision.

            In 2006 Beard filed a petition for postconviction relief in which she argued that assault could not be used as a predicate offense for felony murder and that her upward sentencing departure was improper.  The district court concluded that Beard’s arguments were barred by the Knaffla rule and denied her petition.  Beard now appeals.


            Under the Knaffla rule, when a direct appeal has been taken, all claims that were raised or could have been raised will not be considered in a petition for postconviction relief.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  Two exceptions to the Knaffla rule permit review when (1) the interests of justice require review or (2) a claim is so novel that the legal basis for the appeal was not available on direct appeal.  Perry v. State, 731 N.W.2d 143, 146 (Minn. 2007); see also Minn. Stat. § 590.01, subd. 4 (2006) (codifying similar requirements in 2005 amendment).

            Beard’s petition for postconviction relief raises three arguments:  (1) that Minnesota should adopt the felony-murder merger rule, (2) that third-degree assault cannot be a predicate felony for felony murder because it is not inherently dangerous to human life, and (3) that the vulnerability of the victim could not support the upward durational departure because the infant’s vulnerability was tantamount to an element of the crime—namely the fact that the victim died.  We conclude that all three arguments are barred by the Knaffla rule.


            Minnesota courts have previously considered and rejected the felony-murder merger rule that Beard advocates.  See State v. Jackson, 346 N.W.2d 634, 636 (Minn. 1984) (noting that Minnesota has repeatedly refused to adopt the merger doctrine under which assault cannot serve as predicate offense for felony murder).  Beard relies on a Washington Supreme Court decision in the case of In re Personal Restraint of Andress, 56 P.3d 981 (Wash. 2002).  The Washington decision is based on statutory language that is not present in the Minnesota felony-murder statute.  See id. at 984 (citing felony-murder statute, which requires that killing occur “in course of and in furtherance of such crime or in immediate flight therefrom”); Minn. Stat. § 609.19(2) (Supp. 1995) (requiring only that killing occur “while committing or attempting to commit a felony offense”).  Thus, Beard’s argument does not qualify as novel and does not require review in the interests of justice.  Because Beard has previously appealed her case and no exception to the Knaffla rule applies, Beard’s argument based on the felony-murder merger rule is barred.


            Similarly, the Knaffla rule bars Beard’s argument that third-degree assault is not inherently dangerous to human life.  The issue is not new, and sufficiently similar issues have been previously addressed.  See State v. Cole, 542 N.W.2d 43, 53 (Minn. 1996) (concluding that second-degree assault can serve as a predicate offense for felony murder because it is “a crime against the person”).  Under State v. Anderson, the inherent danger of the crime must be considered in the abstract.  666 N.W.2d 696, 700-01 (Minn. 2003).  But third-degree assault requires “substantial bodily harm.”  Minn. Stat. § 609.223, subd. 1 (1994).  Substantial bodily harm creates an inherent danger to human life when considered in the abstract.  See State v. Mitchell, 693 N.W.2d 891, 894-95 (Minn. App. 2005) (noting that elements need not refer to death or bodily harm), review denied (Minn. June 28, 2005).  Thus, Beard’s argument on the absence of inherent danger in third-degree assault is not novel and does not require review in the interests of justice.



            Finally, we conclude that Beard’s sentencing argument is also barred by the Knaffla rule.  In general, “courts are empowered ‘at any time’ to correct sentences not authorized by law.”  Spann v. State, ___ N.W.2d ___, ___, 2007 WL 3208589, at *2 (Minn. Nov. 1, 2007) (quoting Minn. R. Crim. P. 27.03, subd. 9).  In this case, however, Beard has previously challenged her upward departure on direct appeal.  See Beard, 574 N.W.2d at 92-93 (rejecting Beard’s argument that upward departure based on vulnerability was inappropriate).  Because Beard is again raising an issue relating to vulnerability as a basis for her upward departure, her claim is Knaffla-barred.  See Powers v. State, 731 N.W.2d 499, 501 (Minn. 2007) (holding that sentencing claim was Knaffla-barred when it was “essentially the same” claim that had been previously raised).

            In any case, we would reject Beard’s sentencing argument on its merits.  A victim’s vulnerability can be the basis for an upward departure in a felony-murder sentence despite the fact that vulnerability was a causal factor in the victim’s death.  State v. Rodriguez, 505 N.W.2d 373, 377-78 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).  The felony-murder statute does not require that the victim be vulnerable.  See Minn. Stat. § 609.19(2) (requiring “the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense”).  Thus, Beard’s upward departure was not based on facts that “were already taken into account by the legislature in determining the degree of seriousness of the offense.”  Taylor v. State, 670 N.W.2d 584, 589 (Minn. 2003).

            For these reasons, all three of Beard’s arguments are Knaffla-barred.  Accordingly, the district court correctly denied Beard’s petition for postconviction relief.