This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2136
State of Minnesota,
Respondent,
vs.
Erik Alan Vacek,
Appellant.
Filed September 29, 2014
Affirmed
Kirk, Judge
Kanabec County District Court
File No. 33-CR-11-281
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Barbara McFadden, Kanabec County Attorney, Reese Frederickson, Assistant County
Attorney, Mora, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Hudson, Judge; and Kirk,
Judge.
UNPUBLISHED OPINION
KIRK, Judge
Appellant challenges his 180-day consecutive sentence for a driving-while-
impaired (DWI) offense, arguing that the district court erred by: (1) imposing a
consecutive sentence after it failed to specify whether the sentence was concurrent or
consecutive to a prior DWI sentence; and (2) violating his due process rights. We affirm.
FACTS
In August 2011, respondent State of Minnesota charged appellant Erik Alan Vacek
in Kanabec County with third-degree DWI, in violation of Minn. Stat. § 169A.20, subd.
1(2) (2010). In November, the state charged appellant in Itasca County with third-degree
DWI, in violation of Minn. Stat. § 169A.20, subd. 1(5) (2010). In March 2012, appellant
pleaded guilty to third-degree DWI in Itasca County and that same day the district court
sentenced him to 365 days, stayed, and placed him on supervised probation.
In May 2012, a Kanabec County jury convicted appellant of third-degree DWI. In
July, the district court sentenced appellant to 180 days, stayed 166 days, and placed him
on supervised probation for three years. The district court did not state on the record or
in the warrant of commitment whether appellant’s sentence was concurrent or
consecutive to his Itasca County sentence.
In March 2013, appellant’s Itasca County probation officer filed a probation-
violation report alleging that appellant failed to submit to random drug testing and tested
positive for a controlled substance. The next day, appellant’s probation officer in
Kanabec County filed a probation-violation report based on his alleged probation
2
violations in Itasca County. The Itasca County District Court determined that appellant’s
conduct violated the terms of his probation and executed appellant’s stayed 365-day
sentence.
In June 2013, the Kanabec County District Court held a probation-violation
hearing. Appellant was represented by counsel. The parties disputed whether appellant
should serve his stayed Kanabec County sentence consecutive or concurrent to his Itasca
County sentence. Appellant argued that under Minn. Stat. § 609.15 (2010), the district
court’s failure to specify in its July 2012 sentencing order whether appellant’s stayed
sentence was consecutive or concurrent meant that the sentence was concurrent to his
Itasca County sentence. The prosecutor disagreed, arguing that Minn. Stat. § 169A.28,
subd. 1(a)(1) (2010), required that the district court impose a consecutive sentence
because appellant’s DWI convictions under Minn. Stat. § 169A.20 (2010) arose out of
separate courses of conduct. The district court acknowledged on the record that the July
2012 warrant of commitment did not specify whether appellant’s sentence was
concurrent or consecutive to his Itasca County sentence and that it needed to conduct
more research to ascertain the controlling statute.
Despite the uncertainty over the status of appellant’s sentence, appellant waived
all rights and advisories under Minn. R. Crim. P. 27.04 and requested that the district
court execute his stayed 180-day sentence concurrent with his Itasca County sentence.
The district court clarified appellant’s request as follows:
[DISTRICT COURT]: All right. If [appellant] still intends to
proceed, I guess he will need to understand that I will have to
make my determination of whether [the sentence] will be
3
consecutive under 169A.28 or concurrent under 609.15, I
would make that determination and give the parties a little bit
of time to brief which particular section is controlling. . . .
[Appellant], with that understanding, do you still wish to
proceed today?
[APPELLANT]: Yes, Your Honor.
[DISTRICT COURT]: In other words, entering an admission
to the probation violation and demanding an executed
sentence and ultimately I’ll have to determine whether that’s
consecutive or concurrent from a legal standpoint. Do you
understand that?
[APPELLANT]: Yes.
The district court asked appellant whether he understood that if he demanded an executed
sentence, he would forego the opportunity to have a contested probation-violation hearing
where the state would have to prove with clear and convincing evidence that he violated
his probation. Appellant replied that he understood. Appellant also affirmed that while
he was not admitting to the probation violation, he had been given adequate time to
consult with his attorney about the sentence, waived his rights to a contested probation-
violation hearing, and demanded that his sentence be executed.
The district court found that appellant’s waiver was knowing, intelligent, and
voluntary and executed appellant’s sentence. The district court allowed the parties to
submit briefs on the sentencing issue.
In an order filed on July 11, the district court concluded that section 169A.28,
subdivision 1, mandated that it sentence appellant consecutively because he was already
serving a sentence for a different DWI offense under section 169A.20. Appellant moved
for reconsideration, which the district court denied. Appellant appealed both the district
court’s July 11 order and its denial of the motion to reconsider.
4
This court denied appellant’s appeal of the district court’s July 2012 order as
untimely under Minn. R. Crim. P. 28.02, subd. 3. This court also denied appellant’s
appeal of the district court’s motion to reconsider, but construed the appeal as a timely
postconviction appeal.
DECISION
I. This court has authority to modify appellant’s sentence, and appellant’s
postconviction petition is not Knaffla barred.
As an initial matter, the state argues that this court does not have authority to
modify appellant’s sentence because it has expired. But this court has the authority to
amend appellant’s sentence because he initiated his postconviction appeal before his
sentence had expired. See State v. Hannam, 792 N.W.2d 862, 864 (Minn. App. 2011)
(stating that “[o]nce an inmate completes the terms of imprisonment and supervised
release, the inmate’s sentence expires”); State v. Purdy, 589 N.W.2d 496, 498 (Minn.
App. 1999) (noting that “the court loses jurisdiction to modify a sentence once the
sentence has expired”).
We also reject the state’s claim that appellant’s postconviction petition is
procedurally barred under State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741
(1976), because this court has not yet addressed the underlying merits of his claims. See
Minn. Stat. § 590.04, subd. 3 (2012) (stating that the court may summarily deny a second
or successive petition when the issues raised in it have been previously decided by this
court or the supreme court in the same case); see also Lynch v. State, 749 N.W.2d 318,
321 (Minn. 2008) (stating that the Minnesota Supreme Court “addressed and decided this
5
precise issue on direct appeal and denied relief. . . . [t]hus, we conclude that the claim is
barred by Knaffla” (emphases added)).
II. The district court did not err by imposing a consecutive sentence.
A court may at any time correct a sentence that is not authorized by law. Minn. R.
Crim. P. 27.03, subd. 9. “Whether a statute has been properly construed . . . is a question
of law subject to de novo review.” State v. Gilbert, 634 N.W.2d 439, 441 (Minn. App.
2001), review denied (Minn. Dec. 11, 2001).
Appellant argues that the Kanabec County District Court’s failure to specify in its
July 2012 order whether appellant’s sentence was to run concurrently or consecutively to
his Itasca County sentence necessitates that the sentences run concurrently under Minn.
Stat. § 609.15, subd. 1. We disagree. The district court properly amended appellant’s
July 2012 sentence to conform to the requirements of section 169A.28, subdivisions
1(a)(1) and 1(a)(2). In support of its conclusion, the district court cited Gilbert, where the
appellant pleaded guilty to two separate DWI offenses in two counties and challenged the
district court’s execution of a previously imposed but partially stayed sentence
consecutive to a later-executed sentence that was imposed in the other county. 634
N.W.2d at 440-41. In Gilbert, this court held that while section 609.15 establishes that
unspecified sentences are to be served concurrently, section 169A.28, subdivision 1,
carves out a narrow exception mandating the imposition of consecutive sentences for
DWI offenses under section 169A.20. Id. at 442.
We agree with the district court that Gilbert is controlling in this case. Here,
appellant committed two DWI crimes that arose out of separate courses of conduct. At
6
the time the Kanabec County District Court sentenced him, he was serving an executed
sentence for DWI in Itasca County. As the Kanabec County District Court was the later-
sentencing court, it was required to impose a consecutive sentence to the Itasca County
sentence in order to comply with the statutory requirements of section 169A.28,
subdivisions 1(a)(1) and 1(a)(2).
III. Appellant’s due process rights were not violated when the district court
imposed a consecutive sentence.
Whether a due process violation has occurred is a question of constitutional law
that this court reviews de novo. State v. Grigsby, 806 N.W.2d 101, 111 (Minn. App.
2011), aff’d, 818 N.W.2d 511 (Minn. 2012). “The United States and Minnesota
Constitutions, through their due process clauses, ‘ensure that sentencing proceedings
observe the standards of fundamental fairness essential to justice.’” State v. Calmes, 632
N.W.2d 641, 645 (Minn. 2001) (quoting State v. Humes, 581 N.W.2d 317, 320 (Minn.
1998)). “[D]ue process may be violated when a defendant’s sentence is enhanced after
the defendant has developed a crystallized expectation of finality in the earlier sentence.”
Id. “In sentencing proceedings, due process requires that a defendant have notice, an
opportunity to be heard, and an opportunity to confront and cross-examine witnesses.”
State v. Kortkamp, 560 N.W.2d 93, 96 (Minn. App. 1997). Minn. R. Crim. P. 27.04
outlines a probationer’s basic procedural protections, in probation-revocation
proceedings, including the right to counsel.
Appellant argues that the district court violated his due process rights when it
imposed a consecutive sentence after the probation-violation hearing because he had a
7
“crystallized expectation” in the finality of his sentence. The record clearly shows that it
was impossible for appellant to have developed a “crystallized expectation” in the finality
of his sentence because the district court told him on the record that it did not know
whether his executed sentence would be concurrent or consecutive to his Itasca County
sentence. Appellant acknowledged on the record that this was an outstanding issue, but
continued to insist that the district court execute his sentence. Moreover, appellant has
the right to refuse probation and insist on the execution of his sentence. State v.
Randolph, 316 N.W.2d 508, 510 (Minn. 1982).
Appellant also broadly asserts that his waiver of the right to a contested probation-
violation hearing was not accurate, intelligent, or voluntary because a probation hearing
is too remote in time to allow a court to modify a sentence, and “the stakes are too
serious.” But appellant points to no caselaw in support of his claim.
In Morrissey v. Brewer, 408 U.S. 471, 485-87, 92 S. Ct. 2593, 2602-03 (1972), the
United States Supreme Court held that at the preliminary parole-revocation hearing, a
parolee is entitled to notice of the alleged parole violations, an opportunity to appear and
to present evidence, a conditional right to confront the government’s witnesses, an
independent decision-maker, and a written report of the hearing. The “minimum
requirements of due process” applicable to the final revocation hearing are substantially
similar. Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604.
Applying the due process standards of Morrissey and Minn. R. Crim. P. 27.04, the
district court did not violate appellant’s due process rights because appellant had notice
8
of the alleged probation violation and the opportunity to request a contested probation-
violation hearing.
Affirmed.
9