This opinion will be unpublished and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

A05-274

A05-275

 

 

State of Minnesota,

Respondent,

 

vs.

 

Larry Allen Delaney,

Appellant.

 

 

Filed February 7, 2006

Reversed and remanded

Lansing, Judge

 

 

Olmsted County District Court

File No. K6-96-3599

 

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, David F. McLeod, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904(for respondent)

 

Mary M. McMahon, Special Assistant State Public Defender, 2499 Rice Street, Suite 140, Roseville, MN 55113-3724 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from the denial of his postconviction petition for sentence modification, Larry Delaney argues that his sentence is not authorized by law and that the sentencing error resulted from ineffective assistance of counsel.  Delaney waived his ineffective-assistance-of-counsel claim by failing to raise it in his petition or at his postconviction hearing.  Because it is undisputed that Delaney’s sentence is not authorized by law and because correction of an illegal sentence is not barred by failure to raise it in a prior postconviction petition, we reverse and remand.

F A C T S

Larry Delaney pleaded guilty to two charges of second-degree criminal sexual conduct in April 1997.  The district court sentenced him to two concurrent sentences of thirty-six months in a correctional facility and imposed a ten-year conditional-release term.

            Delaney filed a petition for postconviction relief in September 2000 seeking to withdraw his guilty plea because, at the time of his plea, he was unaware that his sentence would include a mandatory conditional-release term.  He did not, however, challenge the illegality of the ten-year conditional-release term.  The district court denied his petition, and Delaney appealed to this court.  We affirmed the district court’s order, and the supreme court denied review.

            In September 2004, Delaney filed a motion under Minn. R. Crim. P. 27.03 to modify the ten-year conditional-release term in his sentence to a five-year conditional-release term because the longer term was unauthorized by law.  The district court interpreted this motion as a request for postconviction relief and denied his motion because Delaney had failed to raise the issue in his first postconviction petition.  Delaney appeals from this determination, claiming that his sentence was unlawful and that his attorney provided ineffective assistance of counsel by failing to challenge the length of the conditional-release term in the initial postconviction petition.

D E C I S I O N

The district court has jurisdiction “at any time [to] correct a sentence not authorized by law.”  Minn. R. Crim. P. 27.03, subd. 9.  A motion for correction is within the district court’s discretion, and we will reverse its ruling on appeal only when the district court does not properly exercise discretion or the sentence is unauthorized by law.  State v. Stutelberg, 435 N.W.2d 632, 633-34 (Minn. App. 1989); see also United States v. Kadota, 757 F.2d 198, 199 (8th Cir. 1985) (identifying standard for abuse of discretion in appeal from denial of motion under Fed. R. Civ. P. 35, the federal counterpart to Minn. R. Crim. P. 27.03, subd. 9).  Similarly, we review a district court’s postconviction decision under an abuse-of-discretion standard.  Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).  A prejudicial error in the application of law constitutes an abuse of discretion.  State v. Babcock, 685 N.W.2d 36, 40 (Minn. App. 2004).

At sentencing, Delaney’s conditional-release term was increased from five years to ten years based on a 1980 conviction in the state of Washington.  It is undisputed that, at the time of Delaney’s plea and sentencing, a conviction in a jurisdiction other than Minnesota could not qualify as a prior conviction for purposes of increasing a mandatory five-year conditional-release term to a ten-year term.  See Minn. Stat. § 609.346, subd. 5(a) (1996) (providing that prior conviction of sexual offense in Minnesota requires imposition of ten-year conditional-release term); see also State v. Humes, 581 N.W.2d 317, 319 (Minn. 1998) (stating that sentence that is contrary to requirements of applicable sentencing statute is unauthorized by law).  The state concedes that Delaney’s prior conviction in Washington does not qualify as a prior conviction that can increase Delaney’s conditional-release term from five years to ten years.  Nonetheless, it contends that Delaney’s failure to raise the sentencing error in his first petition for postconviction relief precludes the district court from considering the issue in his second petition.  See Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003) (stating generally that failure to raise issue in prior postconviction petition precludes review of that issue in subsequent petition).  We disagree that the failure to challenge a legally unauthorized sentence in an earlier postconviction appeal has a preclusive effect on a subsequent motion to correct the illegal sentence.

Under rule 27.03, a district court has the power to correct a sentence despite earlier denials of postconviction relief.  Stutelberg, 435 N.W.2d at 634; see also State v. Henderson, 706 N.W.2d 758, 760 (Minn. 2005) (observing that defendant’s failure to raise sentencing issue does not waive consideration of issue on motion to correct unlawful sentence).  Because “the sentencing court should have continuing power to correct its own illegal sentence,” a previous postconviction proceeding does not have a preclusive effect on a subsequent rule 27.03 motion.  Stutelberg, 435 N.W.2d at 634 (quotation omitted).  Thus, “[i]f the sentence is not authorized by law, the reviewing court can reevaluate that sentence.”  Id. 

Although Delaney failed to challenge the unauthorized sentence in his previous postconviction petition, this failure does not preclude the district court from correcting the sentence on a motion for modification of the sentence.  Because the state acknowledges that the ten-year conditional-release term is unauthorized by law, we reverse and remand for correction of Delaney’s sentence.

Delaney alternatively argues that the conditional-release term should be reduced from ten years to five years because the sentencing error resulted from ineffective assistance of counsel.  Delaney, however, did not raise this alternative basis for relief in his postconviction petition or at the postconviction hearing.  See Ferguson v. State, 645 N.W.2d 437, 448 (Minn. 2002) (refusing to review claim of ineffective assistance of counsel when defendant did not raise issue in postconviction court).  Furthermore, consideration of Delaney’s alternative basis is unnecessary because we conclude that rule 27.03, subdivision 9, requires correction of the unauthorized sentence.

Reversed and remanded.