This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-635

 

Dushawn Wright, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed February 6, 2007

Affirmed

Wright, Judge

 

Ramsey County District Court

File No. 2003952 (KX-02-2259)

 

 

Dushawn Wright, Minnesota Correctional Facility-Stillwater, 970 Pickett Street North, Bayport, MN  55003 (pro se appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 315 Ramsey County Government Center, 50 West Kellogg Boulevard, St. Paul, MN  55102 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

            Appellant challenges the district court’s denial of his motion to correct his sentence, arguing that the district court abused its discretion by (1) denying the motion, and (2) construing it as a postconviction petition.  We affirm.

FACTS

            A jury found appellant Dushawn Wright guilty of three counts of second-degree murder, a violation of Minn. Stat. §§ 609.11, .19 (2000),[1] based on offenses he committed on May 15, 2002.  The district court sentenced Wright to the presumptive guidelines sentence of 326 months’ imprisonment based on a severity level of ten and a criminal-history score of one.  Wright appealed his conviction, and we affirmed.  State v. Wright, No. A03-1948, 2005 WL 147487, at *1 (Minn. App. Jan. 25, 2005), review denied (Minn. Apr. 19, 2005).

            In February 2006, Wright moved to modify his sentence under Minn. R. Crim. P. 27.03, subd. 9.  Wright argued that the district court erred by using his juvenile adjudications to calculate his criminal-history score because they were not included in the record before the district court.  Wright sought a reduction in his sentence from 326 to 299 months’ imprisonment based on a criminal-history score of zero. 

The district court notified Wright that it would construe Wright’s motion to correct his sentence as a petition for postconviction relief.  The district court subsequently denied the petition, holding that Wright’s claim failed on the merits and was procedurally barred by State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (barring postconviction claims that were or could have been brought on direct appeal).  This appeal followed.

D E C I S I O N

“A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.”  Greer v. State, 673 N.W.2d 151, 154 (Minn. 2004).  We will not disturb a postconviction decision of the district court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  But we review de novo questions of law that are decided in a postconviction proceeding.  Schleicher v. State, 718 N.W.2d 440, 445 (Minn. 2006). 

I.

            Wright argues that the district court abused its discretion when it denied Wright’s postconviction petition.  Wright maintains that a sentence reduction is warranted because the district court used Wright’s juvenile adjudications to calculate Wright’s criminal-history score even though they were not part of the record at sentencing.

            Contrary to Wright’s assertion, his juvenile adjudications were part of the record at sentencing.  Prior to sentencing Wright, the district court reviewed Wright’s presentence-investigation (PSI) report, which is included in the district court record.  The PSI report indicates that Wright has two juvenile adjudications, which result in one criminal-history point for the sentence for the current offense.  An offender is assigned one criminal-history point for every two felony offenses committed and prosecuted as a juvenile provided that the offenses occurred after the offender’s fourteenth birthday and the offense for which the offender is being sentenced was committed before the offender’s twenty-fifth birthday.  Minn. Sent. Guidelines II.B.4.  Wright’s criminal-history point is based on two of Wright’s felony juvenile adjudications, both of which occurred after his fourteenth birthday.  Wright committed the current offense two weeks before his twenty-fifth birthday.  The district court, therefore, correctly calculated Wright’s criminal-history score.

Furthermore, Wright did not object to the district court’s use of these juvenile adjudications in calculating his criminal-history score.  During the sentencing hearing, Wright’s counsel stated, “The presentence investigation . . . mentions one criminal history point from a juvenile conviction, it appears, but the presentence investigation doesn’t specify what juvenile conviction there may have been.”  Thereafter, Wright’s counsel and the prosecuter conferred off the record.  When the proceedings resumed, Wright’s counsel did not object to the criminal-history score calculated in the PSI report.  Rather, he stated, “That’s fine.  One issue resolved.”  In the absence of an objection to the use of two juvenile adjudications in calculating his criminal-history score, Wright has waived this issue on appeal.  State v. Vick, 632 N.W.2d 676, 684-85 (Minn. 2001) (applying waiver standard to evidentiary error).

Because Wright’s juvenile adjudications are included in the record and were properly used by the district court to calculate Wright’s criminal-history score, the district court did not abuse its discretion when it held that Wright’s postconviction petition fails on the merits.[2]

II.

            Wright also argues that the district court abused its discretion when it construed Wright’s motion to correct his sentence as a postconviction petition.  A defendant may move to correct his or her sentence under Minn. R. Crim. P. 27.03, subd. 9, which states: “The [district] court at any time may correct a sentence not authorized by law.”  Similarly, a defendant may challenge his or her sentence as violative of rights “under the Constitution or laws of the United States or of the state” by bringing a petition for postconviction relief under Minn. Stat. § 590.01, subd. 1(1) (Supp. 2005).  We review a district court’s ruling on a motion to correct a sentence under the same standard used for our review of a ruling on a postconviction petition—an abuse-of-discretion standard with de novo review of questions of law.  State v. Stutelberg, 435 N.W.2d 632, 633-34 (Minn. App. 1989) (motion to correct sentence); cf. Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997) (postconviction petition).

            We have often construed an appeal from an order denying a motion to correct a sentence as an appeal from an order denying postconviction relief.  See, e.g., State v. Scott, 529 N.W.2d 11, 12 (Minn. App. 1995) (noting that appellate court may construe order denying motion for sentence modification as postconviction order), review denied (Minn. Mar. 14, 1995).  Under either construction, Wright’s challenge to his sentence results in the same disposition.  As such, the district court did not abuse its discretion by construing Wright’s motion to correct his sentence as a petition for postconviction relief.

            Affirmed.