STATE OF MINNESOTA
IN SUPREME COURT
A13-0789
Court of Appeals Gildea, C.J.
Dissenting, Page, J.
Dissenting, Stras, J.
State of Minnesota,
Respondent,
vs. Filed: April 15, 2015
Office of Appellate Courts
Dakari Michael Coles,
Appellant.
________________________
Lori Swanson, Attorney General, Saint Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.
________________________
SYLLABUS
1. Because appellant’s motion to correct his sentence implicates his plea
agreement, appellant’s exclusive remedy is a petition for postconviction relief.
1
2. Because appellant’s motion for correction of his sentence was filed more
than 2 years after his conviction became final, the motion is time-barred by Minn. Stat.
§ 590.01, subd. 4(a) (2014).
Affirmed.
OPINION
GILDEA, Chief Justice.
Appellant Dakari Michael Coles brought a motion challenging his sentence. The
district court sentenced Coles pursuant to the terms of a plea agreement in which the
State agreed to dismiss several charges, and Coles agreed to receive a sentence for a
lesser charge that was an upward durational departure. The question presented is whether
Coles may challenge his sentence in a motion to correct his sentence, see Minn. R. Crim.
P. 27.03, subd. 9 (Rule 27.03), or whether his challenge must be brought in a petition for
postconviction relief, see Minn. Stat. § 590.01, subd. 1 (2014). The district court held
that Coles’ challenge must be brought as a petition for postconviction relief and that his
motion was time-barred by Minn. Stat. § 590.01, subd. 4(a) (2014). The court of appeals
affirmed. Because we conclude that Coles’ challenge to his sentence must be brought in
a petition for postconviction relief, we affirm.
In 2003, Coles, who was then 16, was at a residence along with an 11-year-old and
a 9-year-old. The younger child saw Coles with his penis in the other child’s mouth.
Coles offered the younger child $10 to keep what she saw to herself, but she told an adult
about the incident.
2
Respondent the State of Minnesota filed a delinquency petition charging Coles
with first-degree criminal sexual conduct under Minn. Stat. § 609.342, subds. 1(a), 2
(2014), Minn. Stat. § 609.109, subd. 7 (2002). In a separate delinquency petition, the
State charged Coles with first-degree aggravated robbery under Minn. Stat. §§ 609.245,
subd. 1, 609.11, 609.05 (2014), and two counts of simple robbery under Minn. Stat.
§ 609.24 (2014) for another incident. The State filed motions seeking to certify Coles as
an adult for prosecution. 1
Assuming that Coles was certified as an adult, the presumptive sentence for the
first-degree criminal sexual conduct charge was 144 months and the presumptive
sentence for first-degree aggravated robbery was 48 months. Minn. Stat. § 609.342,
subd. 2(b); Minn. Sent. Guidelines IV & n.2 (2003). Consecutive sentencing for these
offenses would not have been considered a departure under the guidelines. Minn. Sent.
Guidelines II.F. (2003). As a result, Coles could have received a presumptive, aggregate
sentence of 192 months for the charges.
On August 28, 2003, Coles and the State reached a plea agreement. They agreed
that Coles would plead guilty to an amended charge of second-degree criminal sexual
conduct and to first-degree aggravated robbery in exchange for the State dismissing the
first-degree criminal sexual conduct and simple robbery charges. In addition, the parties
agreed that Coles would be placed on extended jurisdiction juvenile (EJJ) status, so he
1
Coles was subject to a presumption of certification for prosecution as an adult for
the first-degree criminal sexual conduct and aggravated robbery charges. Minn. Stat.
§ 260B.125, subd. 3 (2014).
3
could receive treatment, and that he would receive a stayed, 96-month aggregate
sentence. This sentence was based on two 48-month, consecutive sentences. The
48-month sentence for second-degree criminal sexual conduct was an upward durational
departure from the presumptive guidelines sentence of 21 months. Minn. Sent.
Guidelines IV (2003). The imposition of consecutive sentences was also an upward
departure. Id., II.F.
Coles pleaded guilty to second-degree criminal sexual conduct and first-degree
aggravated robbery. The district court accepted his guilty plea, placed him on EJJ status,
and sentenced him according to the terms of the plea agreement. During the sentencing,
the court stated that it based the upward durational departure on the agreement of the
parties and the age difference between Coles and the victim, which the court said made
the victim vulnerable.
The basis for the departure is one, this is a negotiation between the
parties. . . . I would also find another part of this negotiation besides
admission also had to do with the matter being handled as Extended
Jurisdiction Juvenile rather than going forward as adult certification. Given
the age of the child, of the victim in this matter, that I think [a] very strong
argument can be made for the fact that the age difference given the child’s
develop—stage of child development being what they are, that there was
some level of vulnerability for the younger child to being taken advantage
of by Mr. Coles and would justify the upward departure.
In a subsequent order, the court also noted that Coles “attempted to manipulate” the
younger child “by offering her cash not to tell anyone what she had seen.”
In 2005, the district court found that Coles violated the terms of his EJJ probation
by failing to complete, and being discharged from, his juvenile sex offender program.
4
Consequently, the district court revoked Coles’ EJJ status and executed his consecutive,
48-month sentences. 2
In 2012, Coles filed a pro se petition for postconviction relief arguing that the
court had impermissibly sentenced him. While represented by counsel, Coles later filed a
supplemental petition labeled as a petition for postconviction relief, but requesting relief
under Minn. R. Crim. P. 27.03, subd. 9. Coles argued that the district court relied on
improper justifications to support a departure from the presumptive criminal sexual
conduct sentence. The district court denied relief, concluding that Coles’ request was
time-barred under the 2-year postconviction statute of limitations, Minn. Stat. § 590.01,
subd. 4(a). The court determined that the petition for relief was a challenge to Coles’
plea agreement, not just his sentence. The court of appeals affirmed, holding that Coles
could not use Rule 27.03 “to ignore the substance of his petition.” State v. Coles,
No. A13-0789, 2013 WL 6570058, at *3 (Minn. App. Dec. 16, 2013). Because Coles’
challenge implicated his conviction, the court of appeals concluded that the district court
properly construed his request as a time-barred petition for postconviction relief. Id. at
*3-4. We granted Coles’ petition for review.
Coles argues that his sentence is “not authorized by law” and must be corrected
under Minn. R. Crim. P. 27.03, subd. 9. Coles contends that his sentence is illegal
because the district court imposed an upward durational departure for his criminal sexual
2
Coles is now on supervised release. His sentence expiration date is December 8,
2017.
5
conduct sentence without citing any valid “substantial and compelling reasons for
departure.” Coles asks our court to correct his sentence by reducing “his consecutive
48-month sentence for criminal sexual conduct to a 21-month concurrent term.” The
State contends that Coles’ request had to be filed under the postconviction statute and that
the request is time-barred under that statute. The parties’ arguments present issues
regarding the interpretation of a procedural rule and statute, questions subject to de novo
review. Christianson v. Henke, 831 N.W.2d 532, 535 (Minn. 2013); Johnson v. State,
801 N.W.2d 173, 176 (Minn. 2011).
I.
The parties disagree over whether Coles’ request for correction of his sentence
was brought under the postconviction statute or under the rules of criminal procedure.
Minnesota’s postconviction statute allows a person convicted of a crime to petition the
court to correct a sentence when the sentence “violate[s] the person’s rights under the
Constitution or laws of the United States or of the state.” Minn. Stat. § 590.01, subd. 1.
The statute imposes a 2-year time limit on petitions for postconviction relief from “the
entry of judgment of conviction or sentence if no direct appeal is filed.” Id.,
subd. 4(a)(1). Our rules of criminal procedure also give the court authority to correct a
sentence in Rule 27.03. The rule provides that “[t]he court may at any time correct a
sentence not authorized by law.” Minn. R. Crim. P. 27.03, subd. 9 (emphasis added). 3
3
Because Rule 27.03 does not provide a time limit for challenges to a sentence
unauthorized by law, but Minn. Stat. § 590.01 does include such a limitation, an
(Footnote continued on next page.)
6
Coles labeled his supplemental petition as a petition for postconviction relief. But
he requested relief pursuant to Rule 27.03. We typically look to the pleadings and the
relief sought in order to determine the nature of a claim. See Abraham v. Cnty. of
Hennepin, 639 N.W.2d 342, 350 (Minn. 2002). But the pleadings in this case are not
dispositive because Coles arguably invoked both the postconviction statute and our
procedural rule.
While Coles’ pleading could be read as invoking both the postconviction statute
and Rule 27.03, the language of the statute and the rule, together with our precedent,
confirm that Coles’ request falls under the postconviction statute. The language of Minn.
Stat. § 590.01 is broad and plainly encompasses a motion seeking correction of a
sentence. See Minn. Stat. § 590.01, subd. 1(1). Based on the statutory language, we have
recognized that courts in some circumstances have the authority to treat a request to
correct a sentence purportedly brought under Rule 27.03 as a petition for postconviction
relief. See Bonga v. State, 765 N.W.2d 639, 642-43 (Minn. 2009).
In contrast to the comprehensive language of section 590.01, the plain language of
Rule 27.03 is limited to sentences, and the court’s authority under the rule is restricted to
(Footnote continued from previous page.)
argument could be made that the rule and the statute conflict, thereby raising
separation-of-powers concerns. Cf. State v. Losh, 721 N.W.2d 886, 890-92 (Minn. 2006).
Coles, however, does not argue that applying the statute of limitations provided in Minn.
Stat. § 590.01, subd. 4(a), to his motion to correct his sentence violates the
separation-of-powers doctrine, and therefore, we will not address the possible conflict. See
Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that an issue “not argued in
the briefs” is waived).
7
modifying a sentence. Minn. R. Crim. P. 27.03, subd. 9 (“The court may at any time
correct a sentence not authorized by law.” (emphasis added)). We have interpreted Rule
27.03 narrowly, consistent with its language. See State v. Schnagl, 859 N.W.2d 297, 298
(Minn. 2015) (holding that Rule 27.03 “is not the proper procedure to obtain judicial
review of” an administrative decision “implementing the sentence imposed”). Our
decision in Johnson v. State, 801 N.W.2d 173 (Minn. 2011), illustrates this point.
In Johnson, the defendant filed a motion challenging the sentence the district court
imposed as a result of the defendant’s guilty plea. Id. at 175. The defendant also
challenged the validity of his guilty plea. Id. Because the defendant’s challenge went
beyond the sentence, we held that Rule 27.03 did not apply. See id. at 176. Instead, we
held that the defendant had to seek relief under the postconviction statute. Id. We reach
the same conclusion in this case.
The district court imposed the sentence at issue as part of the court’s acceptance of
the parties’ negotiated plea agreement. See Minn. R. Crim. P. 15.04, subd. 3(1) (noting
that “the trial court judge must reject or accept the plea of guilty on the terms of the plea
agreement”). If, as Coles requests, his sentence is modified, “the terms of the plea
agreement” the parties reached will, in effect, have been rejected. Id. In such a
circumstance, our criminal rule requires that the defendant be given a chance to withdraw
his plea of guilty. Id. (“If the court rejects the plea agreement, it must advise the parties
in open court and then call upon the defendant to either affirm or withdraw the plea.”);
State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (recognizing that if a court corrects a
8
sentence that was part of a plea agreement, the defendant “must be allowed to withdraw
from the plea agreement if he so chooses”). Accordingly, where the sentence at issue is
imposed as part of a plea agreement, a motion to change that sentence impacts more than
simply the sentence, and Rule 27.03 does not apply.
But, Coles argues, he is challenging only his sentence, not his plea agreement or
conviction, and therefore, he has brought a proper Rule 27.03 motion. We have
recognized, however, that a challenge to a sentence imposed as part of a plea agreement
involves more than simply the sentence. See State v. Lewis, 656 N.W.2d 535, 539 (Minn.
2003). In some plea agreements, the conviction component and the sentence component
are “interrelated.” Id. For example, the parties may have agreed that the defendant
would be convicted of a reduced criminal charge but only if the defendant received a
sentence longer than the presumptive sentence for the reduced charge. Id. at 536. If the
defendant succeeds in reducing his or her sentence, he or she retains the benefit of the
reduced criminal charge but the State no longer receives the benefit of the longer
sentence. See id. at 539.
Faced with such a situation, we held in Lewis that “where the district court finds
no compelling or substantial circumstances supporting an upward departure in the
sentence that was agreed upon in a plea agreement, it may consider motions to vacate the
conviction and the plea agreement.” Id. The basis for the challenge to the sentence in
Lewis was the same as Coles’ challenge to his sentence. Id. at 537. Moreover, just like
the defendant in Lewis¸ Coles received the benefit of a reduced criminal sexual conduct
9
charge in exchange for agreeing to an upward durational departure on his sentence for
that reduced charge. See id. at 536. Under Lewis, if the district court reduced Coles’
sentence due to improper departure justifications, which is the relief Coles seeks, the
court would be “free to consider the effect that changes in the sentence have on the entire
plea agreement.” 4 Id. at 539.
Based on our precedent, it is clear that Coles’ request involves more than simply
the sentence the district court imposed; it involves the plea agreement itself. 5 The State
and Coles recognized at the plea hearing that Coles’ sentence and conviction were part of
a negotiated package in which both Coles and the State received a significant benefit. 6
4
In State v. Maurstad, we ordered the district court to correct a sentence agreed
upon in a plea agreement, relying, in part, on Rule 27.03. 733 N.W.2d 141, 147 (Minn.
2007) (holding that a “sentence based on an incorrect criminal history score is an illegal
sentence” and is correctable at any time under Rule 27.03). The plea agreement in
Maurstad, however, stated that the defendant would “be sentenced according to the
Minnesota sentencing guidelines.” Id. at 143. Unlike Coles’ requested relief, adjusting
Maurstad’s sentence to the correct sentence under the guidelines did not deprive either
side of the benefit of the bargain reached in the plea agreement. See id. The same is not
true here. If the district court reduced Coles’ criminal sexual conduct sentence, the State
would no longer get the benefit of a longer sentence for agreeing to a reduced criminal
sexual conduct charge.
5
Justice Page’s dissent argues that “had Coles been convicted after trial and given
an illegal sentence, his sentence would be correctable under Rule 27.03 at any time
without regard to his conviction.” In that case, however, the conviction and sentence
would not be interrelated in the way they are in Coles’ case. See Lewis, 656 N.W.2d at
539.
6
Justice Page argues that the State will retain “the vast majority of the sentence-
related benefits it received” from the plea agreement even if Coles’ sentence is corrected.
This argument hinges on the fact that Coles already served his prison sentence. As a
result, the dissent claims that even if Coles’ sentence were shortened, the State would not
(Footnote continued on next page.)
10
Coles’ lawyer noted that Coles agreed to a longer sentence for second-degree criminal
sexual conduct because it was “part of the negotiation to go from first degree” criminal
sexual conduct to second-degree criminal sexual conduct and that it was “a substantial
benefit to go from crim sex one to crim sex two.” The prosecutor highlighted the
importance of the sentence length and that the agreed-to 96-month sentence was
“significantly less” than the sentence for the dismissed charge because “crim sex one
would be 144 [months] on its own.” Although Justice Page is correct that “there are any
number of reasons why the State enters into plea agreements,” the parties made it clear
that in this particular plea agreement, the sentence with an upward departure was a
crucial reason.
Because Coles’ challenge to his sentence implicates more than simply his
sentence, we conclude that it is properly viewed as a petition for postconviction relief
under Minn. Stat. § 590.01, not as a motion to correct a sentence under Rule 27.03. 7
(Footnote continued from previous page.)
lose the benefit of the sentence agreed to in the plea agreement. This analysis, however,
ignores that its legal conclusion—that an offender who pleads guilty to a reduced charge
in exchange for agreeing to an upward departure on his or her sentence may challenge
that upward departure in a Rule 27.03 motion—would apply to an offender who still had
years to go on his or her sentence. Moreover, even though Coles fully served his prison
sentence, he is currently on supervised release. While on supervised release, he is in the
legal custody of the commissioner of corrections and is “subject to re-incarceration for
breach of a condition of release.” See State v. Schwartz, 628 N.W.2d 134, 139 (Minn.
2001). If the district court reduced Coles’ sentence, the State would lose the benefit of
almost 3 years of his supervised release term.
7
The State offers an alternative argument for why Rule 27.03 does not apply,
arguing that the scope of the rule is narrow and allows challenges only to sentences that
(Footnote continued on next page.)
11
II.
Coles filed his pleading seeking relief on May 12, 2012, more than 2 years after
his conviction was final. Having decided that Coles’ request must be construed as a
petition for postconviction relief, we hold that Coles’ request is time-barred by Minn.
Stat. § 590.01, subd. 4(a). 8
Affirmed.
(Footnote continued from previous page.)
are contrary to the statutory maximum provided in the criminal statute. Given our
conclusion that Rule 27.03 does not apply to Coles’ request, it is not necessary for us to
reach this alternative argument.
8
Justice Page argues that under our holding “there is in effect no remedy for the
imposition of an illegal sentence.” If Coles’ sentence were, in fact, illegal, a point we do
not decide today, the postconviction statute provides a remedy. Instead of waiting nearly
9 years to bring his postconviction petition, Coles could have brought a timely
postconviction petition challenging his sentence within 2 years of his conviction. See
Minn. Stat. § 590.01, subd. 4(a). Moreover, the time-bar in the postconviction statute has
several exceptions that may allow a court to hear a challenge to a sentence that implicates
a plea agreement and conviction in an appropriate case. See Minn. Stat. §590.01,
subd. 4(b). Coles does not contend that he has satisfied any of these exceptions. In
addition, Minn. Stat. § 590.01 is the exclusive remedy for challenging the validity of a
conviction “unless it is inadequate or ineffective.” Minn. Stat. § 590.01, subd. 2 (2014).
Coles, however, does not argue that that the postconviction statute would not be adequate
or effective and as such we do not address this provision. See Johnson, 801 N.W.2d at
176 (stating that because the defendant had not argued that a petition for postconviction
relief would be inadequate or ineffective, his exclusive remedy was a petition for
postconviction relief, not a Rule 27.03 motion).
12
DISSENT
PAGE, Justice (dissenting).
“Curiouser and curiouser!” Lewis Carroll, Alice’s Adventures in Wonderland
(1865), reprinted in The Annotated Alice 35 (Martin Gardner ed., Bramhall House 1960).
The result reached by the court and the reasoning behind that result are flawed in a way
that brings to mind Alice’s exclamation. The court holds that Coles’ motion to correct
his sentence “is properly viewed as a petition for postconviction relief under Minn. Stat.
§ 590.01, not as a motion to correct a sentence under Rule 27.03.” This holding rests on
the court’s unsupported conclusion that the “challenge to his sentence implicates” 1 his
conviction. Even though it is clear from Coles’ motion that he is not challenging his
conviction, the court arrives at its conclusion by ignoring the fact that a mere change in
Coles’ sentence does not of necessity require the sentencing court to take any action with
respect to Coles’ conviction. With apologies to Alice, “Oh dear, what nonsense [the
court is] talking!” Carroll, supra at 36.
Minnesota Rule of Criminal Procedure 27.03, subdivision 9, provides that a “court
may at any time correct a sentence not authorized by law” (emphasis added), provided
that the court “does not increase the period of confinement.” Under the plain language of
Rule 27.03, a defendant may not challenge his conviction, and Coles has not sought to do
so in this case. Johnson v. State, 801 N.W.2d 173, 176 (Minn. 2011). While it is true
1
Implicate means “[t]o be involved or affected.” Black’s Law Dictionary 770 (8th
ed. 2004).
D-1
that if Coles’ sentence is corrected the State may choose to seek withdrawal from the plea
agreement, the State’s act of seeking to withdraw, if taken, does not flow either directly
or necessarily from the correction of Coles’ sentence. Indeed, the correction of Coles’
sentence by itself will not alter his conviction. If his sentence is corrected, Coles would
still stand convicted of second-degree criminal sexual conduct and first-degree
aggravated robbery. It is only an independent act by the State seeking withdrawal from
the plea agreement that could possibly implicate Coles’ conviction. In this case, whether
the State would seek to withdraw from the plea agreement is purely speculative.
Interestingly, even if the State were to move to withdraw from the plea agreement, which
at this point it has not, Coles’ conviction would not be affected unless and until the
district court, in exercising its discretion, granted the State such relief. See State v. Lewis,
656 N.W.2d 535, 539 (Minn. 2003) (“[W]here the district court finds no compelling or
substantial circumstances supporting an upward departure in the sentence that was agreed
upon in a plea agreement, it may consider motions to vacate the conviction and the plea
agreement.” (emphasis added)); see also id. (“We agree . . . that the district court should
be free to consider the effect that changes in the sentence have on the entire plea
agreement.” (emphasis added)).
While the court relies on Johnson, 801 N.W.2d 173, this is a very different case
from Johnson. In Johnson, we held that the defendant’s Rule 27.03 motion should have
been brought as a petition for postconviction relief under Minn. Stat. § 590.01 (2014),
because the motion challenged his conviction. 801 N.W.2d at 176. Unlike here, the
D-2
defendant in Johnson not only sought a corrected sentence, but also directly challenged
the validity of his guilty plea, and thus his conviction. Id. at 175. Because the district
court granted the defendant’s request for a corrected sentence, the only issues on appeal
in Johnson related to Johnson’s challenge to his conviction. Id. As noted earlier, here
Coles only seeks correction of his sentence and no issues related to his conviction are
properly before us. On that basis, I conclude that Coles’ motion does not implicate his
conviction and was properly brought under Rule 27.03.
The court’s reasoning to the contrary rests on two faulty assumptions. First, the
court assumes that in every case the State will necessarily lose the benefits of its
bargained-for plea agreement if a defendant is permitted to bring a motion to correct his
or her sentence under Rule 27.03, and second, that even if the State loses some of the
benefits of its bargain it will, in every case, reflexively seek to withdraw from the plea
agreement. In this case, the court asserts that “the parties made it clear that in this
particular plea agreement, the sentence with an upward departure was a crucial term.”
The court also asserts that the State “would lose the benefit of almost 3 years of his
[conditional] release term” if Coles’ sentence was corrected. While the court’s assertions
may be accurate, the facts of this case should not dictate the outcome of all cases.
In analyzing the facts of this case, the court ignores three crucial points. 2 First,
because Coles’ sentence is not authorized by law, the State, on the record before us, was
2
While I go into the facts of this case to demonstrate that the court’s statements are
unsupported, by no means do I suggest that these facts change the plain meaning of
(Footnote continued on next page.)
D-3
not entitled when it entered into the plea agreement, and is not entitled now, to the benefit
of the upward sentencing departure. A sentence that is unauthorized by law is an illegal
sentence. Therefore, it is difficult to understand how the State could actually “lose” a
benefit if Coles’ sentence is corrected to comply with the requirements of the sentencing
guidelines. It is also worth noting that, if Coles’ sentence is unauthorized by law, the
State would not “lose” anything here that would not be lost as a result of a timely petition
for postconviction relief under Minn. Stat. § 590.01, subd. 1. If Coles’ sentence had been
corrected pursuant to a timely postconviction petition, the State would have received
much less benefit from its bargain than it actually has received given that Coles has
served all of the prison time required by the plea agreement and a significant portion of
the supervised and conditional release periods. Even if his sentence is corrected, Coles’
time served cannot be reduced.
Second, given the facts of this case, the court ignores the substantial benefits that
the State has already received from this illegal sentence, which will not be lost to the
State if Coles’ sentence is corrected. Regardless of whether Coles’ sentence is corrected,
the State will retain the vast majority of the sentence-related benefits it received from the
plea agreement. In addition to the prison sentence, supervised release, and conditional
release time already served, the State has benefited from not having to prove Coles’ guilt
beyond a reasonable doubt and not having to face an uncertain outcome at trial.
(Footnote continued from previous page.)
Minn. R. Crim. P. 27.03, subd. 9—that an illegal sentence may be corrected “at any
time.”
D-4
Additionally, correction of Coles’ sentence will not change Coles’ criminal history score
going forward or the fact that Coles has a felony conviction. 3
Finally, the court ignores the fact that there is no guarantee that the State will in
fact lose any sentence-related benefit if Coles’ illegal sentence is allowed to be corrected
under Rule 27.03. A corrected sentence will not always mean a reduced sentence. For
example, on remand, in the context of Coles’ plea agreement, there is nothing to preclude
the district court from allowing the State to make the case that there are other substantial
and compelling circumstances justifying an upward departure. If the State successfully
made that case, Coles’ sentence would not need to be reduced.
It is true that the State might seek to have Coles’ conviction vacated for the
reasons articulated by the court if Coles’ sentence was in fact reduced. But it is also true
that there are any number of reasons why the State enters into plea agreements and why
the State, in this case and in general, might rationally choose not to seek to vacate a plea
agreement even if the defendant’s sentence is reduced. The court, however, creates a rule
that presumes that in every case involving a plea bargain the State will seek to and be
entitled to withdraw from the plea agreement. That blanket rule disregards the various
considerations that the State would take into account in deciding whether to seek
withdrawal. We should not be making decisions based on speculation as to how the
3
Nor would a determination that Coles’ sentence was illegal entitle him to
compensation from the State. See Minn. Stat. § 611.362, subd. 1 (2014) (explaining that
a person must receive “an order under section 590.11 determining that the person is
entitled to compensation based on exoneration” (emphasis added)).
D-5
parties may proceed on remand or how the district court will rule. Because the State’s
decision to withdraw from a plea agreement is in fact an independent act that does not
flow either directly or necessarily from permitting a defendant to challenge his or her
illegal sentence under Rule 27.03, 4 it is improper for our court to decide in advance in all
cases for all time that every challenge to an illegal sentence affects the underlying
conviction.
Because an unlawful sentence may, under Rule 27.03, be corrected at any time,
Coles’ motion to correct his sentence is not time barred. The only question remaining is
whether Coles is entitled to have his sentence corrected because it is illegal. The answer
to that question is yes.
The sentence ranges set forth in the Minnesota Sentencing Guidelines “are
presumed to be appropriate” and a departure from the presumptive sentence must be
supported by “substantial and compelling circumstances.” Minn. Sent. Guidelines II.D
(2003). As a general rule, the maximum upward durational departure that can be justified
by aggravating circumstances is double the presumptive sentence. State v. Evans,
311 N.W.2d 481, 483 (Minn. 1981). Only in the “extremely rare” cases that present
“severe aggravating circumstances” may the sentencing court impose a greater-than-
4
I acknowledge that the State may have difficulty in reconvicting a defendant if the
defendant’s sentence is corrected many years later under Rule 27.03 and the State would
otherwise desire to withdraw from the plea agreement. The answer is not, however, to
ignore the text of the rule, which permits courts to correct an illegal sentence “at any
time,” Minn. R. Crim. P. 27.03, subd. 9, but instead to formally change the rule.
D-6
double upward departure from the presumptive sentence. State v. Spain, 590 N.W.2d 85,
89 (Minn. 1999); State v. Mortland, 399 N.W.2d 92, 94 & n.1 (Minn. 1987).
In this case, Coles’ sentence of commitment to the Commissioner of Corrections
for 48 months for second-degree criminal sexual conduct, Minn. Stat. § 609.343,
subd. 1(a) (2014), is a greater-than-double upward durational departure from the
presumptive stayed sentence of 21 months. The record clearly indicates that the reasons
relied upon by the district court to justify this departure—namely, the agreement between
the parties and the age difference between Coles and the victim—are improper. See State
v. Misquadace, 644 N.W.2d 65, 72 (Minn. 2002) (holding that a district court may not
rely on the plea agreement alone as a basis for an upward departure); State v. Peterson,
329 N.W.2d 58, 60 (Minn. 1983) (concluding that facts “considered by the legislature in
determining the severity of the offense” are improper grounds for departure); see also
Minn. Stat. § 609.343, subd. 1(a) (specifying that a person is guilty of criminal sexual
conduct in the second degree if “the complainant is under 13 years of age and the actor is
more than 36 months older than the complainant”). The State contends that other
information in the record supports the upward departure, specifically the fact that the
9-year-old witnessed the criminal sexual conduct and Coles attempted to bribe her to
remain quiet. Although the commission of an offense in the presence of a child can
provide a valid basis for an upward departure, State v. Profit, 323 N.W.2d 34, 36 (Minn.
1982), the district court made no finding that the presence of the 9-year-old witness in
this case made Coles’ conduct sufficiently more severe than the typical second-degree
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criminal sexual conduct case to justify a greater-than-double durational departure. Such a
finding is more appropriately made by the district court than our court. Therefore, I
would remand to the district court for resentencing.
Because Coles’ sentence is a durational departure that is based on improper
reasons, it is a sentence unauthorized by law that must be corrected under Minn. R. Crim.
P. 27.03, subd. 9. Cf. State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007) (holding
that a sentence based on an incorrect criminal history score is an illegal sentence that is
correctable “at any time” under Minn. R. Crim. P. 27.03, subd. 9); Misquadace,
644 N.W.2d at 72 (holding that “all departures from the Minnesota Sentencing
Guidelines must be supported by substantial and compelling circumstances”). Under the
court’s decision, however, for the first time in our court’s history, we hold that there is in
effect no remedy for the imposition of an illegal sentence. This result cannot stand. It
contradicts our authority to correct an illegal sentence “at any time” under Rule 27.03,
subdivision 9, runs counter to the Legislature’s “stated public policy of achieving
uniformity in sentencing” by way of the sentencing guidelines, Maurstad, 733 N.W.2d at
146, and is inconsistent with our obligation to do justice.
Further, this result does little to discourage the State, which has the power to
structure a plea agreement how it wishes, from bargaining for plea agreements that
impose sentences not authorized by law. 5 Interestingly, had Coles been convicted after
5
It should also be noted that the sentencing court has some culpability here in that it
accepted Coles’ plea and imposed the agreed-upon sentence, which as imposed was
(Footnote continued on next page.)
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trial and given an illegal sentence, his sentence would be correctable under Rule 27.03 at
any time without regard to his conviction. But, under today’s ruling, because Coles
entered into a plea agreement, the same illegal sentence cannot be challenged under
Rule 27.03 and cannot and will not be corrected. Such a result, and the reasoning behind
that result, is not supported by logic, the text of the rule, our precedent, or, as noted
above, our obligation to do justice.
For these reasons, I respectfully dissent.
(Footnote continued from previous page.)
clearly unauthorized by law. There needs to be incentive for not only the State but also
trial courts to take care that sentences unauthorized by law are not imposed on defendants
who enter into plea agreements. That the defendant agrees to and benefits from such a
sentence is of no moment.
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DISSENT
STRAS, Justice (dissenting).
Because the parties do not present a separation-of-powers question and the plain
language of Minn. R. Crim. P. 27.03, subd. 9, fully resolves the legal issue in this case, I
respectfully dissent.
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