This opinion will be unpublished and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

A06-824

 

State of Minnesota,

Respondent,

 

vs.

 

Chaka Smith,

Appellant.

 

 

Filed April 10, 2007

Reversed and remanded

Lansing, Judge

 

Hennepin County District Court

File No. 01069845

 

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

 

Mike Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Bradford Colbert, Legal Assistance to Minnesota Prisoners, George S. Pappas, Certified Student Attorney, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Chaka Smith pleaded guilty in 2002 to second-degree felony murder.  Based on a plea agreement, the district court imposed a 240-month sentence, which included an upward departure of 90 months.  Almost four years after the sentence, Smith filed a petition for postconviction relief arguing that the upward departure was not justified and requesting the mid-range presumptive sentence of 150 months.  The district court denied the petition.  Because no aggravating factors justify a departure and the petition was not time-barred, we reverse and remand.

F A C T S

            A Hennepin County grand jury indicted Chaka Smith (Smith) in 2001 for aiding and abetting the first-degree murder of Bobby Holder.  Based on a plea bargain, Smith agreed to testify against his brother, Darnell Smith, and pleaded guilty to second-degree unintentional felony murder.

            During the plea hearing, Smith described his role in the murder.  When Smith finished work at about 10:30 p.m., he went to his brother’s apartment.  The brother informed Smith that Holder was coming to the apartment and that he wanted to “beat up” Holder.  As his brother instructed, Smith made sure that nobody else arrived with Holder and then Smith hid in the bathroom.  After his brother began to fight with Holder in a bedroom, Smith came out of hiding and blocked the bedroom door so that Holder could not get out.  Smith’s brother then shot Holder.  As Holder begged for his life, Smith started to leave.  Smith’s brother shot Holder a second time.  When his brother ordered Smith to help move the body, Smith refused.  Smith did, however, bring him some buckets of water to clean the area where Holder was shot.  Holder died as a result of the gunshot wounds.  Smith testified that he did not provide any help or assistance to Holder while he was dying.

            After the plea hearing, Smith testified against his brother and described his role in considerably more detail.  See State v. Smith, 669 N.W.2d 19, 23-24 (Minn. 2003) (describing Smith’s testimony against his brother, Darnell Smith).  Smith was then sentenced according to the plea bargain and received a 240-month sentence.  The sentence was an upward departure from the presumptive mid-range sentence of 150 months.  Minn. Sent. Guidelines IV (2000).

            About seven months before the plea hearing, this court held in State v. Misquadace that a plea agreement, standing alone, is not a sufficient basis to depart from the sentencing guidelines.  629 N.W.2d 487, 491 (Minn. App. 2001).  Seven weeks after Smith was sentenced, on May 9, 2002, the Minnesota Supreme Court issued its decision in Misquadace and reached the same conclusion.  State v. Misquadace, 644 N.W.2d 65, 72 (Minn. 2002).  Although Smith’s upward departure was based only on the plea bargain, Smith did not appeal his conviction.  Smith’s time to appeal expired about five weeks after the supreme court’s decision in Misquadace.  See Minn. R. Crim. P. 28.02, subd. 4(3) (setting time for appeal at ninety days after final judgment).

            Smith’s brother was convicted of first-degree premeditated murder and that conviction was affirmed on appeal.  Smith, 669 N.W.2d at 35.  Tina Leja, who was the girlfriend of Smith’s brother, was also tried and convicted for her role in the murder.  State v. Leja, 684 N.W.2d 442, 443 (Minn. 2004).  On appeal, Leja’s sentence for second-degree felony murder was reduced by 60 months to the presumptive sentence of 150 months.  Id. at 450.  Leja had lured Holder into the bedroom where he was murdered and she helped dispose of the body.  Id. at 444-46.  The supreme court noted that Leja had not used her knowledge of where Holder’s body was buried to bargain with authorities and had not herself acted with particular cruelty.  Id.at 449.  Based on these facts, the supreme court concluded that the district court had abused its discretion when it imposed an upward departure.  Id.at 450.

            Almost four years after Smith pleaded guilty and two years after the Leja decision, Smith filed a petition for postconviction relief.  Smith argued that his upward sentencing departure was improper under Misquadace and that no other factors justified the departure.  The district court agreed that Misquadace applied but concluded that the departure was justified because the crime was committed with particular cruelty and was committed by a group of three or more people who all actively participated.  In addition, the district court concluded that the postconviction petition was not timely.  The court therefore denied Smith’s petition.  Smith now appeals this denial.

D E C I S I O N

I

            Under State v. Misquadace, Smith’s original sentence was unauthorized because the district court failed to provide a basis for the upward sentencing departure that explained how the offense was “any more or less serious than the typical offense or conviction.”  644 N.W.2d 65, 71 (Minn. 2002).  Because the district court relied only on the plea agreement to support the departure, it is invalid if Misquadace applies.  Id. at 72. 

Smith, the state, and the district court agree that Misquadace applies to Smith’s sentence.  The application of law to the sequence of events supports this conclusion.  First, when Smith was sentenced, this court had already issued its decision in State v. Misquadace concluding that a plea agreement alone could not justify a departure.  629 N.W.2d 487, 491 (Minn. App. 2001).  Second, by its own terms, Misquadace applies to “pending and future cases.”  644 N.W.2d at 72.  Because Smith’s time to appeal had not expired, his case was pending at the time Misquadace was released.  See State v. Lewis, 656 N.W.2d 535, 538 (Minn. 2003) (concluding that Misquadace applies to claims on direct appeal at time of decision).  Therefore, Smith’s original sentence was invalid under Misquadace.

II

            A sentencing departure will be affirmed despite inadequate reasons if “there is sufficient evidence in the record to justify the departure.”  State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002) (quotation omitted).  We review challenges to departures from the presumptive sentences in the Minnesota Sentencing Guidelines under an abuse-of-discretion standard.  State v. Thompson, 720 N.W.2d 820, 828 (Minn. 2006).  A sentencing departure must be justified by substantial and compelling circumstances in the record.  State v. Losh, 721 N.W.2d 886, 895 (Minn. 2006). 

In reviewing a sentencing departure, we will defer to the district court’s findings of fact unless the findings are clearly erroneous.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Nonetheless, the district court’s findings relating to “aggravating or mitigating circumstances justifying departure from the presumptive sentence must be present in the record.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (emphasis added).  Similarly, in State v. Pearson, this court stated that the district court “may consider the defendant’s admissions, statements and agreements contained in the negotiated plea.”  479 N.W.2d 401, 405 (Minn. App. 1991) (emphasis added), review denied (Minn. Feb. 10, 1992).  As a matter of due process, defendants must be able to challenge evidence used in sentencing proceedings.  State v. Kortkamp, 560 N.W.2d 93, 96 (Minn. App. 1997).  Therefore, the district court may not consider facts stated in the Smith and Leja decisions or statements made during trials of other participants in the murder.

            The district court concluded that the upward departure was justified because Smith committed the crime with particular cruelty.  The court stated:

First, Petitioner prevented Holder from leaving the room where he was being assaulted.  In doing this, Petitioner likely exponentially increased the terror Holder must have been experiencing.  He also deprived Holder of any opportunity of escaping the encounter.  Second, Petitioner ignored Holder’s pleas for mercy and failed to offer the medical attention Holder begged for and required.  Third, Petitioner participated in dismembering Holder’s body.  Fourth, Petitioner attempted to conceal the crime by cleaning the scene of the murder and removing Holder’s car from the vicinity of the murder.

 

The companion cases to Smith’s prosecution provide evidence that could be used to support these findings.  Leja, 684 N.W.2d at 445-46; Smith, 669 N.W.2d at 23-25.  The record in Smith’s case, which is essentially the transcript for Smith’s plea, does not support these findings.  The only evidence that Smith concealed the crime was his statement that he brought his brother “some buckets of water.”  No evidence in the plea transcript supports the findings that Smith moved Holder’s car or dismembered Holder’s body.  Although Smith admitted that he did not provide any assistance to Holder, the record does not indicate that Smith had any realistic opportunity to assist him.

            More importantly, we conclude that the law applied to the facts in the record does not support a determination that Smith acted with particular cruelty when he prevented Holder from leaving the room.  Smith was indicted for aiding and abetting the intentional murder of Holder “while committing or attempting to commit the crime of kidnapping.”  Similarly, Smith’s plea to second-degree unintentional felony murder was on an underlying offense of kidnapping.  Because confinement was part of the charged offense, Smith’s act of preventing Holder from leaving the room does not establish that the crime was committed with particular cruelty.  See Minn. Stat. § 609.25, subd. 1 (2000) (providing that confinement is element of kidnapping); State v. Blanche, 696 N.W.2d 351, 378-79 (Minn. 2005) (noting that “reasons used for departing must not themselves be elements of the underlying crime”).  Furthermore, the confinement itself was not done with particular cruelty.  See Smith, 669 N.W.2d at 30-33 (reversing conviction of Smith’s brother for first-degree murder while committing kidnapping because confinement was momentary and completely incidental to murder).

The record contains no indication that the underlying offense had changed at the time of the plea.  At the plea hearing, Smith’s attorney made a brief reference to aiding and abetting an assault, but we can find no other evidence that the charge was amended.  The state has therefore failed to establish that Smith pleaded guilty to felony murder with an underlying offense of aiding and abetting an assault.  But even if the underlying felony had been assault, Smith’s act of confining Holder was similarly not a particularly cruel way to aid and abet an assault.  See Misquadace, 644 N.W.2d at 69 (permitting sentencing departures when defendant’s conduct was “significantly more or less serious than that typically involved in the commission of the crime in question”).  We therefore can find no basis in the record for concluding that Smith acted with particular cruelty.

            In the postconviction proceedings, the district court also held that the upward departure was justified because Smith “committed the crime as part of a group of three or more persons who all actively participated.”  Minn. Sent. Guidelines II.D.2.b(8) (2000).  At the outset, we reject Smith’s argument that this factor only applies to gangs.  This factor may be intended to target gangs.  See Minn.Sent. Guidelines cmt. II.D.205 (2000) (noting that factor cannot be used when defendant is convicted of “crime committed for benefit of a gang”).  But the plain language of the guidelines is not limited to gangs.  See Losh, 721 N.W.2d at 896 (applying factor to crime unrelated to gang activity).  Nonetheless, we can find no basis for applying this factor to the actions of Smith, his brother, and Leja.  First, the plea transcript contains no evidence that three people participated in the crime.  Although we have no doubt that Leja was a participant, Leja’s role in the murder is not described in the transcript and no additional evidence in the record establishes her participation.  Second, under the circumstances, an upward departure based on this factor would be an abuse of discretion.  The group participation must make the crime “significantly more . . . serious than that typically involved in the commission of the crime in question.”  Misquadace, 644 N.W.2d at 69.  In this case, we can find little evidence that the group participation made the murder significantly more serious.

            Finally, the district court concluded that an upward departure was appropriate because Smith could be held responsible for his brother’s actions.  It is undeniable that Smith’s brother’s actions are abhorrent.  But under the sentencing guidelines, an upward departure may be imposed if the victim “was treated with particular cruelty for which the individual offender should be held responsible.”  Minn. Sent. Guidelines II.D.2.b(2) (2000) (emphasis added).  In Leja, the supreme court concluded that this language meant that the defendant herself must act with particular cruelty.  684 N.W.2d at 449.  The district court’s position squarely contradicts the supreme court’s decision in Leja.  Indeed, the district court cited the dissenting opinion in Leja as support for its conclusion.  Although Leja was a plurality opinion, the concurrence agreed that the principal’s actions cannot be used to conclude that an accomplice acted with particular cruelty.  Id. at 452 (Anderson, Russell, J., concurring specially).  Because we are bound by Leja, we cannot uphold an upward departure on this ground.  Therefore, we are unable to find any evidence in the record sufficient to justify an upward departure.

III

            In addition to affirming the original sentence, the district court alternatively concluded that Smith’s postconviction petition was barred as untimely.  We are unable to find support for the district court’s conclusion that the four-year lapse between sentencing and the postconviction petition should result in denial of the petition. 

            Recently, the legislature added a timeliness requirement to the postconviction-relief statute.  See Minn. Stat. § 590.01, subd. 4(a) (Supp. 2005) (adding two-year limitation period for filing postconviction petitions).  Thus, in future cases, timeliness may be a factor.  The legislature enacted this limitation prospectively and provided that a person “whose conviction became final before August 1, 2005, shall have two years after the effective date of this act to file a petition for postconviction relief.”  2005 Minn. Laws ch. 135 art. 14, § 13, at 1098.  Contrary to Smith’s contention, this provision does not lengthen the time during which he can reasonably request postconviction relief—the legislature’s intent was not to extend, but to limit postconviction petitions.  See Minn. Stat. § 645.16 (2006) (providing that courts “ascertain and effectuate the intention of the legislature”).  The 2005 amendments do, however, reinforce the inference that no time limit was implicitly included in the earlier statute.

            The state argues, however, that even before the 2005 amendments, a petition for postconviction relief could be denied as untimely.  In advancing this argument, the state primarily relies on two cases, State v. Lopez, 379 N.W.2d 633, 636 (Minn. App. 1986), review denied (Minn. Feb. 14, 1986), and State v. Andren, 358 N.W.2d 428, 431 (Minn. App. 1984), in which the petitioners sought to withdraw their guilty pleas, and the district court rejected the petitions as untimely.  In both of those cases, the courts relied on the express timeliness requirement for plea withdrawals in Minn. R. Crim. P. 15.05.  Lopez, 379 N.W.2d at 636; Andren, 358 N.W.2d at 431.  In other cases discussing timeliness or delay, the court gave numerous other reasons for denying the petition.  See, e.g., Fox v. State, 474 N.W.2d 821, 825-26 (Minn. 1991) (holding that evidence of incompetence was insufficient and that claim should have been raised in previous petition).

            Before the 2005 amendments, we doubt that petitions for postconviction relief could be denied solely because they were untimely.  Instead, petitions for postconviction relief were limited through the Knaffla rule.  See Doppler v. State, 660 N.W.2d 797, 801 (Minn. 2003) (discussing Knaffla rule, which procedurally bars repeated petitions for postconviction relief).  Even if we accept the argument that timeliness is a factor to be considered, we would be unable to conclude that Smith’s petition was barred.  When timeliness is considered, courts analyze whether the state has been prejudiced by the delay and whether the delay constituted an abuse of process.  Kost v. State, 356 N.W.2d 680, 682 (Minn. 1984) (mentioning abuse of process requirement); Wensman v. State, 342 N.W.2d 150, 151 (Minn. 1984) (requiring prejudice).  In this case, no evidence suggests that the state has been prejudiced by the delay or that Smith has abused the postconviction-relief process.  If Smith had filed his petition immediately after sentencing, the state would have been in the same position in responding to the petition.

            Finally, we note that the Knaffla rule does not bar Smith’s petition.  First, Smith did not directly appeal his sentence.  By its own terms, the Knaffla rule only applies “where direct appeal has once been taken.”  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (Minn. 1976); see also Minn. Stat. § 590.01, subd. 1 (limiting petitions “after a direct appeal has been completed”); Rairdon v. State, 557 N.W.2d 318, 322 (Minn.1996) (reasoning that “failure to pursue a direct appeal is outweighed by our commitment to convicted defendants’ right to substantive review”).  Second, under Minn. R. Crim. P. 27.03, subd. 9, a court “at any time may correct a sentence not authorized by law.”  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).

IV

            Because the record contains no basis for an upward departure, the district court’s denial of Smith’s petition for postconviction relief is reversed.  When an upward departure is unauthorized under Misquadace, the proper remedy is to remand to the district court to “consider motions to vacate the conviction and the plea agreement.”  Lewis, 656 N.W.2d at 539.  We note that at least two factors weigh against granting a motion to vacate.  First, because Smith testified against his brother, the state may now have a considerably stronger case against Smith.  Even if Smith’s sentence at trial was capped at 240 months, Smith might still be prejudiced because of his cooperation with the state.  Second, the state should not be able to obtain an advantage from its failure to adhere to the requirements of the 2001 decision in Misquadace when Smith was originally sentenced.  Nonetheless, these factors can be addressed and weighed by the district court on remand. 

            If the plea agreement is not vacated, a sentence within the presumptive range must be imposed.  A defendant should be sentenced according to the sentencing guidelines in effect at the time the crime was committed.  Minn. Sent. Guidelines III.F.  Under the 2000 sentencing guidelines, the presumptive range for second-degree felony murder with no criminal-history score is from 144 to 156 months.  Minn. Sent. Guidelines IV (2000).  The district court may impose any sentence within that range without departing from the guidelines.  Minn. Sent. Guidelines II.C (2000).

            Reversed and remanded.