This opinion will be unpublished and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

A06-169

 

 

Marlowe Brooks, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed December 12, 2006

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. 00087189

 

Marlowe Brooks, OID #207063, MCF Stillwater, 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, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court denied Marlowe Brooks’s third petition for postconviction relief.  On appeal, Brooks argues that his plea of guilty to attempted first-degree murder lacked an adequate factual basis on the element of premeditation and that the sentencing court erred in using the Hernandez method of sentencing.  Because the premeditation issue is procedurally barred and the Hernandez method was properly applied, we affirm.

F A C T S

            Marlowe Brooks was charged with fatally shooting one man and shooting at another as the two men left a store in Minneapolis in July 2000.  Based on a plea agreement, Brooks pleaded guilty to first-degree attempted murder and second-degree murder.  After denying Brooks’s motion to withdraw his guilty plea, the district court sentenced him to concurrent, presumptive sentences of 180 months and 346 months.

            On direct appeal, we held that Brooks’s motion to withdraw his guilty plea was properly denied because the plea was accurate, voluntary, and intelligent.  State v. Brooks, No. C1-01-1253, 2002 WL 1277970, at *2-*3 (Minn. App. June 11, 2002), review denied (Minn. Aug. 20, 2002).  Notably, we concluded that the record supported a finding of premeditation.  Id.  We also rejected Brooks’s claim that he received ineffective assistance of counsel.  Id. at *3-*4.  Brooks then filed two petitions for postconviction relief raising ineffective assistance of counsel claims.  The district court denied both petitions, and we affirmed the denials.  State v. Brooks, No. A03-515 (Minn. App. Feb. 3, 2004), review denied (Minn. Apr. 20, 2004); State v. Brooks, No. A04-1735 (Minn. App. May 31, 2005), review denied (Minn. Aug. 16, 2005).

            In his third postconviction-relief proceeding, Brooks makes two arguments.  First, he alleges that there was insufficient evidence of premeditation to support his guilty plea to first-degree attempted murder.  The district court concluded that this claim was procedurally barred and that it failed on the merits.  Second, he alleges that the district court improperly used the Hernandez method to calculate his presumptive sentence.  The district court held that the Hernandez method was properly used.  Brooks appeals both determinations.

D E C I S I O N

            The decisions of a postconviction court are reviewed for abuse of discretion.  Doppler v. State, 660 N.W.2d 797, 801 (Minn. 2003).  We “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Denial of postconviction relief based on the Knaffla procedural bar is also reviewed for abuse of discretion.  Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005).

I

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.  Knaffla v. State, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  “There are two exceptions to the Knaffla rule:  (1) if a novel legal issue is presented, or (2) if the interests of justice require review.”  Taylor v. State, 691 N.W.2d 78, 79 (Minn. 2005).

            In this appeal, Brooks argues that there was no factual basis for finding premeditation and that the district court therefore should not have accepted his guilty plea to first-degree attempted murder.  Previously, on direct appeal, we considered whether there was a factual basis for finding premeditation.  We said:

The objective evidence necessary to show premeditation was provided by Brooks’s testimony.  Brooks admitted that he was carrying a gun because Collins and Harris had threatened him.  Brooks also admitted that he shot at the men seven or eight times and that, after pursuing them across a street and into an alley, he killed Collins with two or three more shots at close range.  Pursuing a person and shooting him at close range has been held to be indicative of premeditation. . . . The district court’s finding of premeditation is supported by the record.  See State v. Buntrock, 560 N.W.2d 383, 388 (Minn. 1997) (noting that requisite premeditation can be formed instantaneously).  The district court did not abuse its discretion by denying Brooks’s motion to withdraw his plea.

 

State v. Brooks, No. C1-01-1253, 2002 WL 1277970, at *3 (Minn. App. June 11, 2002), review denied (Minn. Aug. 20, 2002).

            We are unable to discern a significant difference between Brooks’s claim on direct appeal and his current argument.  Furthermore, Brooks’s claim does not present a novel legal issue, and we cannot conclude that the interests of justice require us to engage in further review.  The Knaffla rule therefore bars further consideration of Brooks’s claim, and we cannot revisit the issue on its merits.

II

Brooks’s motion to correct his sentence, however, is not barred by the Knaffla rule.  A court “at any time may correct a sentence not authorized by law.”  Minn. R. Crim. P. 27.03, subd. 9.  In State v. Stutelberg, this court interpreted the rule to permit challenges to a sentence despite previous, unsuccessful challenges.  435 N.W.2d 632, 634 (Minn. App. 1989).  Nonetheless, we conclude that the sentencing court appropriately applied the Hernandez method.

            If a defendant is being sentenced for two convictions, the Hernandez method permits the district court to calculate the presumptive sentence for the second conviction using felony points based on the first conviction.  State v. Hernandez, 311 N.W.2d 478, 480-81 (Minn. 1981).  The Hernandez method can only be applied if the convictions were for separate and distinct offenses.  Id.  The question of whether offenses are separate and distinct is guided by Minn. Stat. § 609.035 (1998).  See State v. Gould, 562 N.W.2d 518, 520 (Minn. 1997) (interpreting an earlier version of statute).

In this case, if the district court had not applied the Hernandez method, Brooks’s presumptive sentence on the second-degree murder conviction would have been 306 months.  Minn. Sent. Guidelines IV.  Because the Hernandez method was applied, Brooks was assigned two points based on the attempted first-degree murder conviction.  As a result, the presumptive sentence on the second-degree murder conviction was 346 months.

            Although the offenses occurred in a single behavioral incident, the Hernandez method was properly applied.  Crimes committed in a single behavioral incident against multiple victims will be considered separate offenses under section 609.035 as long as doing so will not unfairly exaggerate the criminality of the conduct.  State v. Whittaker, 568 N.W.2d 440, 453 (Minn. 1997).  Therefore, the offenses could have been prosecuted separately.  See State v. Gilbert, 262 N.W.2d 334, 338 (Minn. 1977) (noting that if “the statute is inapplicable with respect to protection against double punishment, it is also inapplicable with respect to double prosecution”).  The state could thus have obtained the 346-month sentence by using separate prosecutions.  The Hernandez method promotes judicial economy by reaching the same result in a single prosecution.  See Hernandez, 311 N.W.2d at 481.  Therefore, the Hernandez method was properly applied and the district court did not abuse its discretion in denying Brooks’s motion.

            Affirmed.