This opinion will be unpublished and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

A05-2074

 

Rodney Charles Peters, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed ­­­September 12, 2006

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. 00056710

 

Rodney C. Peters, #206303, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

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

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the denial of his petition for postconviction relief, arguing that the district court erred in sentencing him to 306 months for his conviction of three counts of kidnapping and unintentional second-degree felony murder because the sentence violates Blakely and the sentences for the convictions were not imposed in the order in which the offenses occurred.  We affirm.

FACTS

 

In August 1999, appellant agreed to assist Richard Frater in collecting money that Aryton Welch owed Frater related to a narcotics transaction.  Frater arranged for appellant and an accomplice to fake a robbery of Welch’s home during a time that Welch was not present.   During the phony robbery of Welch’s home, appellant pulled out a gun,[1] ordered two adults and a four-year-old child to the floor, restrained the two adults by tying their hands with duct tape, and then looked around the house for money and narcotics.  As a result of the search, appellant found and took a small amount of money and narcotics.  Thereafter, appellant and Frater left the residence in Mr. Welch’s pickup truck.  Approximately two hours later, the Minneapolis Fire Department responded to a vehicle fire and, after extinguishing the fire, the firemen discovered a severely burned body in the vehicle.  The body was later identified as Aryton Welch.

            Appellant was charged with first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (1998); two counts of kidnapping an adult in violation of Minn. Stat. § 609.25, subds. 1(2), 2(1) (1998); and one count of kidnapping a child in violation of Minn. Stat. § 609.25, subds. 1(2), 2(2) (1998).  Appellant was later indicted by a grand jury and charged with three counts of first-degree murder for the death of Welch.  Pursuant to a plea agreement, appellant pleaded guilty to the three counts of kidnapping and one count of unintentional second-degree felony murder in violation of Minn. Stat. § 609.19, subd. 2 (1998).  Under the plea agreement, the state and appellant agreed that the district court would have the discretion to sentence appellant to an aggregate sentence ranging from 240 to 306 months.

In January 2001, appellant was sentenced to an aggregate sentence of 306 months in the following order: (1) 115 months for the kidnapping of a child; (2) two 36-month sentences for the kidnapping of the two adults; and (3) 155 months for second-degree murder.  Appellant was sentenced first for the kidnapping of a child, and because he had a criminal history score of 11, appellant’s severity level was VII with a presumptive sentence range of 104-112 months.  Given the order in which appellant was sentenced, the presumptive guidelines range for the four offenses was 240-333 months.  See Minn. Sentencing Guidelines IV (1998).  The court stated that although it believed that there were grounds for an upward departure, the aggregate sentence of 306 months was “within the framework of the plea negotiation and also within the guidelines discretion available to the Court without a departure[.]”

In March 2001, appellant filed a motion for modification of his sentence, requesting that his sentence for one of the kidnapping charges be reduced from 36 to 21 months.  Appellant also argued that because he testified at the plea hearing that the gun he used during the kidnapping was fake, the district court did not properly calculate his sentence range.  The district court denied the motion, stating that even accepting appellant’s arguments, his sentence was within the presumptive guidelines range.  Appellant did not file a direct appeal.

            In July 2005, appellant filed a pro se petition for postconviction relief, arguing that the district court erred by imposing consecutive sentences for a single behavioral incident, and the sentence violated his constitutional right to a jury trial under Blakely.  The district court denied appellant’s motion and this appeal follows. 

D E C I S I O N

I.

 

As a threshold matter, the state argues that appellant’s petition for postconviction relief should be dismissed as untimely because it was filed nearly five years after appellant’s guilty plea.  The district court did not address the state’s timeliness argument. 

Untimeliness, in and of itself, is not sufficient reason to deny a petition for postconviction relief.  Sykes v. State, 578 N.W.2d 807, 814 (Minn. App. 1988), review denied (Minn. 1998).  But untimeliness is one of many factors a postconviction court may consider in ruling on a petition.  State v. Fox, 474 N.W.2d 821, 826 (Minn. 1991).  “The court at any time may correct a sentence not authorized by law.”  Minn. R. Crim. P. 27.03, subd. 9 (1998) (emphasis added).  Absent prejudice shown by the state, delay by itself does not generally warrant barring a petition as untimely.  See, e.g., Bolinger v. State, 647 N.W.2d 16, 22 (Minn. App. 2002) (noting state’s failure to allege prejudice and declining to hold that appellant’s petition for postconviction relief was barred as untimely).

The Minnesota Rules of Criminal Procedure specifically allow for review of a sentence at any time.  See Minn. R. Crim. P. 27.03, subd. 9 (1998).  The state cites several cases to argue that appellant’s petition for postconviction relief should have been dismissed as untimely.  E.g., Kost v. State, 356 N.W.2d 680 (Minn. 1984).  But in each case, the defendant challenged his conviction, not his sentence.  See, e.g., id. at 682–83 (appellant sought postconviction relief based on allegedly new evidence found after trial).   And the state does not show how it was prejudiced by the timeliness of appellant’s petition, which challenges appellant’s sentence, not his convictions.  Therefore, the state’s argument lacks merit.

II.

 

            In his petition for postconviction relief, appellant contends that his three kidnapping offenses constituted a single behavioral incident, and, therefore, the district court erred in imposing sentences for each offense.  But appellant did not raise this issue in his brief.  Issues not briefed on appeal are waived.  State. v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997); see also Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001) (pro se litigants are generally held to the same standards as attorneys). 

            But even considering appellant’s argument, it fails.  Whether a defendant commits multiple-victim crimes is a question of law, which this court reviews de novo.  See State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).  When a person commits multiple offenses that all arise from a single behavioral incident, Minn. Stat. § 609.035 allows a court to enter a sentence for only one of the crimes.  State v. Schmidt, 612 N.W.2d 871, 876 (Minn. 2000).  But “a judicially created exception to this single-behavioral-incident rule permits the imposition of multiple sentences when (1) the offenses involve multiple victims; and (2) the multiple sentencing does not unfairly exaggerate the criminality of the defendant’s conduct.”  State v. Rhoades, 690 N.W.2d 135, 138 (Minn. App. 2004).

            Although the three kidnapping offenses were part of a single behavioral incident, the offenses were against multiple victims, including a four-year-old child.  Appellant ordered the victims to lie on the floor and tied their hands with duct tape while looking around the house for money and narcotics.  Clearly, the consecutive convictions for the offenses against multiple victims did not unfairly exaggerate the criminality of appellant’s conduct.  Therefore, appellant’s argument lacks merit.

III.

 

Appellant contends that his sentence violates his Sixth Amendment right to a jury trial because the aggravating factors supporting the upward durational departure were not found by a jury.  Appellant’s arguments rely on the United States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

The rule announced in Blakely was that the greatest sentence a district court can impose is the maximum sentence based solely on the facts reflected in the jury verdict or admitted by the defendant.  Id. at 303, 124 S. Ct. at 2537.  Therefore, an upward durational departure from the presumptive sentence based on the judge’s findings, rather than those of a jury, is invalid under the Sixth Amendment right to trial by jury.  Id.

The Minnesota Supreme Court has concluded that Blakely applies to sentences imposed under the Minnesota Sentencing Guidelines.  State v. Shattuck, 704 N.W.2d 131, 141 (Minn. 2005).  While the Blakely decision created a new rule of constitutional criminal procedure, it is not a “watershed rule of criminal procedure” and, therefore, is not retroactively applicable to cases that were final prior to Blakely’s effective date of June 24, 2004.  State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).  A case is final when “the availability of appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the [United States] Supreme Court has been filed and finally denied.”  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).

Here, appellant was convicted in 1999 and sentenced in January 2001.  Appellant moved to modify his sentence, but the district court denied his motion on April 6, 2001.  Appellant did not appeal either his sentence or the denial of his motion to modify his sentence.  The time for direct appeal from his sentence elapsed on or about July 5, 2001, at which point appellant’s sentence became final.  See Minn. R. Crim. P. 28.05, subd. 1(1) (1998) (providing that a party has 90 days to file notice of appeal challenging sentence).  Because appellant’s conviction was final nearly three years before the effective date of Blakely, he cannot benefit from the rule enunciated therein, and the postconviction court did not abuse its discretion by denying his request for relief on the basis of Blakely.

IV.

 

            Appellant contends that the district court erred by not imposing sentences for his convictions in the order that the offenses occurred.  But appellant raises this issue for the first time on appeal.   This court will generally not consider matters raised for the first time on appeal.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  Thus, appellant has waived the right to have his argument considered on appeal.

            Even considering appellant’s argument, it fails.  District courts have great discretion in imposing sentences, and this court will not disturb a sentence authorized by law. State v. Munger, 597 N.W.2d 570, 573 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).  It is the district court’s function to make any findings of fact that bear on sentencing.  State v. Olson, 379 N.W.2d 524, 527 (Minn. 1976).  

“When multiple current offenses are sentenced on the same day before the same judge, sentencing shall occur in the order in which the offenses occurred.” Minn. Sentencing Guidelines cmt. II.B.101 (1998).  A defendant is properly sentenced first for the offense he completes first. E.g., State v. Anderson, 345 N.W.2d 764, 766 (Minn. 1984) (holding that when a burglary was completed before criminal damage to property, burglary was properly sentenced first).  The sentencing judge should establish the relative order of the offenses based on the information available.  Minn. Sentencing Guidelines cmt. II.A.02 (1998); see also Minn. Sentencing Guidelines II.F.2 (indicating that a consecutive sentence is permissive for “[m]ultiple current felony convictions for crimes against persons”).

Appellant claims that the district court abused its discretion in choosing the order in which it sentenced appellant for the offenses, i.e., by first sentencing appellant for kidnapping of a child and then sentencing him for the two counts of kidnapping of an adult.[2]  Appellant does not dispute that he was properly sentenced last for the second-degree murder offense.

Kidnapping occurs when the perpetrator “confines or removes from one place to another, any person without the person’s consent” to facilitate the commission of a felony or flight.  Minn. Stat. § 609.25, subd. 1(2) (1998). Here, it is undisputed that the kidnapping of the child and the two adults were completed at the same time.  Specifically, appellant testified that when he entered Welch’s home, he pulled out a fake gun and ordered the child and the two adults “to get down on the floor[.]”  Appellant’s petition for postconviction relief and his appellate brief also state that “once inside Mr. Welch’s home, [appellant] pulled out a fake gun and told [the two adult victims], and [the four-year-old child] to get down on the floor.”  Because the record demonstrates that the three kidnappings were completed at the same time, the district court had discretion to determine which of the three kidnapping offenses it would sentence first.  On this record, the district court did not abuse its discretion in sentencing the child kidnapping first. 

Affirmed.