This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Dean M. Rieck,


Filed August 19, 1997

Sentence vacated and modified.

Parker, Judge

Sherburne County District Court

File No. K6961543

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Walter M. Kaminsky, Sherburne County Attorney, Sherburne County Courthouse, 13880 Highway 10, Elk River, MN 55330-4601 (for respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.



Prior to the implementation of the sentencing guidelines, appellant Dean Rieck was convicted of three offenses and sentenced to concurrent, indeterminate terms exceeding the 40-year maximum prescribed by Minn. Stat. § 609.15, subd. 2. He appealed to this court, and the matter was remanded for resentencing not to exceed 12 years and 6 months. Rieck again appeals, arguing the trial court erred in resentencing him to an executed 14-year and 2-month term because it violates the provisions of Minn. Stat. § 609.15, subd. 2, and the directive of this court. We vacate and modify.


This court reviews a postconviction proceeding only to determine whether the evidence is sufficient to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

Rieck argues that the resentencing court erred by adopting the state's argument that State v. Higginbotham, 348 N.W.2d 327 (Minn. 1984), provided support for the trial court to prescribe a sentence greater than the 12-year and 6-month maximum ordered by this court. He contends that the facts of Higginbotham are distinguishable from this matter because the supreme court was determining whether consecutive sentences were allowable and not whether consecutive, indeterminate sentences could exceed the 40-year maximum allowed by statute. Rieck argues that because the resentencing court failed to adhere to the remand directive of this court and because the new sentence violates the applicable provisions of Minn. Stat. § 609.15, subd. 2, the new sentence should be vacated.

Minn. Stat. § 609.15, subd. 2 (1986),[1] provides in part:

If the court specifies that the sentence shall run consecutively, the total of the terms of imprisonment imposed, other than a term of imprisonment for life, shall not exceed 40 years.

On remand, the state argued that the resentencing court had the authority to order a maximum of 20 consecutive years pursuant to our supreme court's decision in Higginbotham. In Higginbotham, the defendant was convicted on second-degree murder charges in 1972 and sentenced to the statutory maximum of imprisonment for 40 years. Higginbotham, 348 N.W.2d at 328. In 1981, he was paroled to a halfway house and escaped. Id. The defendant was later arrested and charged with fleeing a police officer, possession of a firearm, and robbery. Id. The defendant was then sentenced to concurrent terms on the new charges, with an upward durational departure. Id. at 329. The supreme court reduced defendant's sentence to the mandatory minimum under the guidelines and held that Minn. Stat. § 609.15, subd. 2, did not bar the use of a consecutive sentence because the defendant was subject only to "what was left of his 40 year sentence after giving him credit for the time already served." Id. at 330. In determining Rieck's new sentence, the trial court noted:

I also am not going to be ignoring the directive of the Appellate Court regarding the 20 year imposition of sentence. * * * I do note that the Appellate Court does not refer in any manner whatsoever to the Higginbotham case which is a Supreme Court case decided, I believe, in 1984. * * * Given the directive of the Appellate Court and given the case law of Higginbotham, which is still good law and has not been overturned, I believe that I'm required to impose sentence that takes into consideration credit for time served by Mr. Rieck * * * And for purposes of my sentencing here today, I'm adopting the state's position, not the first argument, but the second one that Higginbotham does recognize the 40 year cap. And I'm then adopting the state's numerical calculations which result in a sentence here of 14 years and 2 months.

Our determination as to the propriety of Rieck's resentence must begin with a review of the trial court's responsibility on remand. Having undertaken a thorough review of the record and concluding that Rieck's second and third sentences were to run consecutively, we stated:

A searching review of the 1979 sentencing transcript reveals that the sentencing court intended that the 1979 sentence be imposed consecutive to both the first and second sentences.

Rieck v. Wood, No. C5-95-1729, p. 3 (Minn. App. Jan. 30, 1996) (Rieck I). Citing to Bailey v. State, 414 N.W.2d 503, 507 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987), we concluded that when a consecutive sentence does not comply with the provisions of Minn. Stat. § 609.15, subd. 2, a remand for resentencing is warranted. Id. However, we further instructed:

The remedy for such an unlawful sentence is not to make the sentence concurrent, but to remand for sentencing. * * * On remand, the district court would have been free to impose a consecutive twelve-and-one-half-year sentence (a likely result, given the district court's original intention to impose the maximum sentence allowed by law). * * * As noted above, 20 years represents the total maximum term for Rieck's second and third sentences. Accordingly, we reverse the denial of Rieck's petition as it relates to this issue, and we remand so that Rieck's expiration date may be modified to conform to the statutory cap.

Rieck, No. C5-95-1729 at p. 3 (emphasis added).

A trial court's duty on remand is to execute the mandate of the remanding court strictly according to its terms. Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982). A trial court has no power to alter, amend, or modify a mandate from an appellate court. Id. at 766 (citing Tankar Gas, Inc. v. Lumberman's Mut. Cas. Co., 215 Minn. 265, 9 N.W.2d 754 (1943)).

We hold that because this court's remand in Rieck I contained specific directions as to how the trial court was to proceed and also outlined the maximum sentence allowable, the trial court's decision to sentence in excess of that directive constitutes an abuse of discretion. We observe that despite the fact that Higginbotham is good law, neither the state nor the trial court was free to ignore the mandate of this court that 12 years and 6 months was now the maximum allowable sentence for Rieck under the provisions of Minn. Stat. § 609.15, subd. 2, that applied to his sentence. We further note that upon review of the statutory provisions, had the state felt the remand order to be in error, it would have been proper to seek review of that order instead of raising new arguments at resentencing that were contrary to the specific mandate of this court. Orderly judicial procedures require that the district court, on remand, follow the law and directions of that remand. If this court has erred, it is the state's duty to seek further review so that the supreme court may be given an opportunity to correct such error, not the district court. The maximum sentence Rieck could receive was 12 years and 6 months, and we direct that his sentence be modified to reflect this holding; it is the law of the case. See Halverson, 322 N.W.2d at 766; Rieck, No. C5-95-1729, p. 3.

We observe that Rieck alternatively argued, by pro se brief, that the trial court's sentence of 14 years and 2 months violated his eighth amendment right to a sentence proportional to the severity of the offense. Because we conclude the trial court's resentence was in error, we need not reach the constitutional issue. Furthermore, we note that Rieck's pro se arguments regarding denial of his motion to stay appeal and his right to counsel to pursue his habeas corpus petition were disposed of by order of this court dated April 8, 1997. We conclude, therefore, that Rieck's pro se claims are without merit.

Sentence vacated and modified.

[ ]1This statutory section was amended and the 40-year maximum language deleted in 1992. See Minn. Laws ch. 571, art. 2, § 8.