This opinion will be unpublished and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

A05-317

A05-683

 

State of Minnesota,

Respondent (A05-317),

Appellant (A05-683),

 

vs.

 

Michael Andrew Edwards,

Appellant (A05-317),

Respondent (A05-683).

 

Filed August 9, 2005

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 00117698

 

 

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

 

Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent/appellant State of Minnesota);

 

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant State Public Defender, 221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant/respondent Edwards)

 

 

            Considered and decided by Toussaint, Chief Judge; Schumacher, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

 

TOUSSAINT, Chief Judge

            This consolidated appeal is from an order denying appellant’s motion under Minn. R. Crim. P. 27.03, subd. 9, to correct the Hernandez sentencing used by the trial court but granting his motion to vacate an upward durational departure under Blakely.  This court consolidated appellant’s appeal from the first part of the order with the state’s appeal from the second and granted appellant’s motion for expedited review.  Because there was no error in the use of Hernandez sentencing and because the upward durational departure violates appellant’s Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), we affirm.

FACTS

 

Appellant Michael Edwards was charged with multiple counts of theft by swindle, securities fraud, and tax evasion.  The complaint alleged that Edwards had swindled, or committed securities fraud against, a number of individual victims; the owners of a small business, Powerlink; and an investment group; and had failed to pay state personal income tax from 1997 to 2000 and corporate income tax in 1997 and 1998. 

            Edwards moved to sever the charges for trial, arguing that his alleged conduct occurred over a period of years and involved different victims.  The trial court denied the motion, ruling that “all the offenses were so factually entangled that they could not properly be severed.”  Edwards was found guilty on 15 counts, after the trial court had dismissed some counts for lack of proper venue.

            At sentencing, the trial court found that Edwards could be punished only for the theft by swindle conviction, not for the securities-fraud conviction against the same victim.  Of the 15 counts, that left two counts of evasion of corporate income taxes, four counts of evading personal income taxes, and four counts of theft by swindle.

On the tax-evasion counts for 1997 and 1998, the trial court sentenced Edwards to stayed sentences of a year and a day; 13 months; 15 months; and 17 months, respectively, using the presumptive sentence durations calculated under the Hernandez method, which counts criminal-history points for current offenses sentenced earlier on the same day. 

The trial court found that four thefts by swindle were major economic offenses and imposed an upward durational departure to 36 months from the presumptive sentence of 30 months on one conviction; and upward durational departure to 78 months from the presumptive sentence of 45 months on another conviction; an upward durational departure to 72 months from the presumptive sentence of 57 months on a third conviction; and an upward durational departure to 60 months from the presumptive sentence of 57 months on the fourth conviction.  The court also imposed, according to the warrant of commitment, concurrent sentences of 51 months on the fifth conviction of theft by swindle and 23 months each on the two remaining counts of tax evasion.

These sentences were imposed using the Hernandez method to calculate Edwards’s criminal-history score.  A sentencing court may use as criminal-history points other current convictions for which sentence was imposed earlier on the same day.  State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981).  This is permissible, however, only if the offenses were not part of a single behavioral incident.  State v. Soto, 562 N.W.2d 299, 302 (Minn. 1997).

Edwards appealed his conviction, arguing in part, that the trial court had erred in denying his motion to sever the charged offenses for trial because Minn. R. Crim. P. 17.03, subd. 3(1)(a), requires severance if the “charges are not related.” 

This court affirmed the conviction, holding the trial court did not abuse its discretion by refusing to sever the individual counts for trial.  State v. Edwards, No. A03-780, 2004 WL 1488527, at *3 (Minn. App. July 6, 2004).  The opinion was released two weeks after Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Edwards had filed a motion for leave to submit supplemental briefing on the application of Blakely, but his motion was not received until after the opinion had been processed.  In a separate order, this court denied the motion, noting Edwards could raise the Blakely issue in a postconviction proceeding.

Instead of filing a postconviction petition, Edwards filed a motion under Minn. R. Crim. P. 27.03, subd. 9 seeking correction of his sentence.  Edwards argued that Hernandez method should not have been used because his current offenses were part of a single behavioral incident and that Blakely required that the upward durational departures be vacated.

The trial court granted the motion in part and denied it in part in an order issued on February 10, 2005.  The court concluded that Edwards had waived the Hernandez issue, by failing to raise it on direct appeal, despite being aware of the issue and even mentioning it in a footnote.  But, the court concluded that Edwards was entitled to relief under Blakely because his direct appeal was pending at the time that Blakely was released.  Both parties have appealed the February 10 order.

D E C I S I O N

I.

            Edwards argues that the district court erred in concluding that Knaffla bars his challenge to Hernandez sentencing.

Claims raised in direct appeal, or known but not raised, may not be considered in a postconviction proceeding.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  The trial court concluded that Edwards’s challenge to Hernandez sentencing is barred because, as the footnote in his brief indicates, he knew about the claim at the time of his direct appeal.  Edwards argues, however, that Knaffla does not apply because a motion under Minn. R. Crim. P. 27.03, subd. 9, to correct sentence may be made at any time.  He relies on State v. Johnson, 653 N.W.2d 646, 650-51 (Minn. App. 2002), to argue that challenges to multiple sentencing under Minn. Stat. § 609.035 (2004) cannot be waived. Finally, he argues that the interests of justice require appellate review.

Minn. R. Crim. P. 27.03, subd. 9, provides that “[t]he court at any time may correct a sentence not authorized by law.”  The rule has been recognized over the years as an alternative means to challenge a sentence that could also be challenged by postconviction petition.  See e.g. State v. Scott, 529 N.W.2d 11, 12 (Minn. App. 1995), review denied (Minn. Mar.14, 1995); State v. Stutelberg, 435 N.W.2d 632, 634-35 (Minn. App. 1989).  This court, however, has not decided whether Knaffla applies to motions under rule 27.03, subd. 9.  See Stutelberg, 435 N.W.2d at 634-35 (acknowledging that a rule 27.03, subd. 9, motion may be construed as a postconviction proceeding, but questioning whether Knaffla would apply to such a motion).

We need not decide the Knaffla issue in this case, however, because we conclude that Edwards’ challenge to Hernandez sentencing is without merit.  We note, however, that the language of rule 27.03, subd. 9, that “[t]he court at any time may correct a sentence not authorized by law” refers to the authority of the court and does not necessarily confer on defendants to right to make the motion at any time.

II.

Edwards argues that it was improper for the trial court to sentence him using the Hernandez method because his offenses were part of a single behavioral incident.  Edwards contends that this court’s earlier opinion affirming joinder determined that the 15 counts on which he was convicted were part of a single behavioral incident.

The guidelines limit the accumulation of criminal-history points based on a single course of conduct or behavioral incident, even when there are multiple victims, to the two most severe offenses.  Minn. Sent. Guidelines cmt. II.B.103.  This limit applies even where, as here, the sentences are for current offenses.  Id.  But this limit has been construed by this court as applying only to crimes committed “during the course of an incident which is limited in time and place.”  State v. Parr, 414 N.W.2d 776, 780 (Minn. App. 1987) (emphasis in original), review denied (Minn. Jan. 15, 1988).  Edwards’s offenses, like most thefts by swindle and tax-evasion schemes, were not “limited in time and place.” 

Edwards argues that this court’s prior opinion “conclusively determined” that his offenses were “limited in time and place” and that the determination is binding as “law of the case.”  But on the contrary, the opinion indicated that the offenses “took place over a long period of time.”  Edwards, 2004 WL 1488527, at *2-*3.   The opinion’s holding that the offenses were so “tightly interwoven” that they “could not reasonably be separated for trial,” id., and “so factually intertwined and dependent on each other that they were properly joined for one trial,” id. at *3, did not imply that the offenses were “limited in time and place” or part of a “single behavioral incident.”  Therefore, the “law of the case” doctrine does not apply.  See generally In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).   

There is no legal support for holding that Edwards’s theft-by-swindle, securities-fraud, and tax-evasion offenses, occurring over a period of more than two years and involving multiple victims, were a “single behavioral incident.”  See State v. Pittel, 518 N.W.2d 606, 608 (Minn. 1994) (thefts by swindle committed against single victim during same year were not single behavioral incident); State v. O’Hagan, 474 N.W.2d 613, 622 (Minn. App. 1991) (noting that thefts from same victim at different times have consistently been held to be separate offenses), review denied (Minn. Sept. 25, 1991). 

III.

            The state argues that Blakely does not apply to the departures imposed here under the Minnesota Sentencing Guidelines because Blakely has been interpreted as being inapplicable to “advisory” guidelines schemes.  United States v. Booker, 125 S. Ct. 738, 750 (2005).  The Minnesota Supreme Court has ordered additional briefing on this issue, along with the Blakely remedy issues.  State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004).

            We review decisions regarding the application of Blakely to our sentencing guidelines de novo.  See State v. Saue, 688 N.W.2d 337, 340 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).

Booker addresses Blakely’s application to the federal sentencing guidelines but also indicates that Blakely would not apply to “advisory” guidelines.  125 S. Ct. at 750.  But this statement is dictum, because the federal guidelines are mandatory.  See id.   Although the Minnesota guidelines “are advisory to the district court,” the district court “shall follow the procedures of the guidelines when it pronounces sentence.”  Minn. Stat. § 244.09, subd. 5 (2004).  Moreover, Blakely cannot be distinguished on the ground that Minnesota’s guidelines are more “advisory” than the Washington guidelines at issue in Blakely.  State v. Conger, 687 N.W.2d 639, 644 (Minn. App. 2004), review granted (Minn. Dec. 22, 2004).  Whether the dictum in Booker changes the Conger holding is more appropriately decided by the supreme court.

The state also relies on Booker to argue that the denial of Edwards’s right to a jury trial under Blakely was not plain error, or at least was harmless.  The state does not cite any Minnesota cases holding Blakely error has been held to be harmless, or subject to plain-error analysis.

The state cites United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002) (holding that Apprendi error was not plain error).  But Cotton, is distinguishable; in that case the sentencing fact at issue, on which the Court found the evidence “overwhelming” and “essentially uncontroverted,” was whether the conspiracy was to sell cocaine in the amount of 50 grams or more.  Id.at 633, 122 S. Ct. at 1786.  Here, the sentencing “fact” at issue is whether each of the counts on which the court imposed an upward departure was a “major economic offense.”  That is a much more complicated issue than the quantity of drugs that was at issue in Cotton.  Therefore, even if we were to hold that plain-error analysis applies to the Blakely error in this case, we could not conclude that the failure to present to the jury the “major economic offense” aggravating factor, a conclusion involving a number of facts that Edwards would certainly contest, prejudiced his substantial rights.  See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (stating plain-error test); Minn. Sent. Guidelines II.D.2.b.(4) (defining “major economic offense” aggravating factor).

The Supreme Court in Booker indicated it expected reviewing courts to “apply ordinary prudential doctrines,” including plain error, in reviewing Blakely errors.  Booker, 125 S. Ct. at 769.  The Minnesota Supreme Court currently has this issue under review in Shattuck.[1]  We decline to revisit our previous holdings in light of Booker when those holdings are currently under review by the supreme court.  Therefore, we affirm the trial court’s conclusion that Edwards is entitled to relief under Blakely.

            Affirmed.