This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0723
Wilson Newongeby Kpahn,
petitioner,
Appellant,
vs.
State of Minnesota,
Respondent
Filed January 25, 2016
Affirmed
Worke, Judge
Hennepin County District Court
File No. 27-CR-07-029966
Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Kirk, Presiding Judge; Peterson, Judge; and Worke,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges the district court’s denial of his motion to correct his
sentence, arguing that the district court erred by treating the motion as a petition for
postconviction relief and concluding that the petition was time barred. We affirm.
DECISION
Postconviction relief
Appellant Wilson Newongeby Kpahn argues that the district court erred when it
treated his motion to correct his sentence under Minn. R. Crim. P. 27.03 as a petition for
postconviction relief. Kpahn presents an issue regarding the interpretation of a
procedural rule and statute, which is subject to de novo review. State v. Coles, 862
N.W.2d 477, 479 (Minn. 2015).
The appellant in Coles was sentenced according to a plea agreement. Id. at 480.
In his motion to correct his sentence under rule 27.03, Coles argued that his sentence was
illegal because the district court impermissibly imposed an upward durational departure.
Id. at 479. The supreme court stated that when the sentence is “part of a plea agreement,
a motion to change that sentence impacts more than simply the sentence, and [r]ule 27.03
does not apply.” Id. at 481. The supreme court held that because Coles’s “challenge to
his sentence implicates more than simply his sentence . . . it is properly viewed as a
petition for postconviction relief . . . not as a motion to correct a sentence under [r]ule
27.03.” Id. at 482.
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Here, on March 31, 2008, Kpahn pleaded guilty to second-degree murder, and a
first-degree murder charge was dismissed. Kpahn agreed that the district court had
discretion to impose a sentence from a 367-423 month range. The 367-month sentence
represented the top-of-the-box guidelines sentence, and the 423-month sentence was a
departure from the sentencing guidelines. Kpahn understood that any sentence greater
than 367 months in prison would be a departure, and he waived his right to a jury
determination on whether aggravating factors existed to support a greater sentence. On
May 21, 2008, the district court sentenced Kpahn to 423 months in prison, finding that a
departure was appropriate because Kpahn acted with particular cruelty and had a history
of violence with the victim, his girlfriend.
Kpahn acknowledges that he “agreed to a sentencing range . . . when he pleaded
guilty.” He also cites Coles, but fails to show how this case is distinguishable. Because
Kpahn’s motion to correct his sentence impacts more than just his sentence, the district
court properly treated his motion as a petition for postconviction relief.
Time barred
The district court denied Kpahn’s motion after determining that it was time barred
under the postconviction-relief statute. This court reviews the denial of postconviction
relief, including a denial for lack of compliance with the postconviction statute of
limitations, for an abuse of discretion. See Greer v. State, 836 N.W.2d 520, 522 (Minn.
2013).
A petition for postconviction relief must be filed no “more than two years after the
later of: (1) the entry of judgment of conviction or sentence if no direct appeal is filed; or
3
(2) an appellate court’s disposition of petitioner’s direct appeal.”1 Minn. Stat. § 590.01,
subd. 4(a) (2014). A case becomes final when “the availability of direct appeal has been
exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with
the United States Supreme Court has been filed and finally denied.” O’Meara v. State,
679 N.W.2d 334, 336 (Minn. 2004), overruled on other grounds by Danforth v.
Minnesota, 552 U.S. 264, 128 S. Ct. 1029 (2008).
Kpahn was sentenced on May 21, 2008. He had 90 days to file a direct appeal,
which he did not do. See Minn. R. Crim. P. 28.02, subd. 4(3)(a). Because he did not file
a direct appeal, Kpahn’s case was final 90 days after he was sentenced in 2008, which
was more than two years before he filed the motion to correct his sentence on December
1, 2014. Therefore, the district court did not abuse its discretion in determining that
Kpahn’s petition was time barred.
Claims for relief
The district court concluded that even if Kpahn’s motion to correct his sentence
were not time barred, he still was not entitled to relief. This court reviews the denial of
postconviction relief for an abuse of discretion. Greer, 836 N.W.2d at 522.
Kpahn claims that his sentence was based on an erroneous criminal-history score,
his sentence impermissibly exceeded the presumptive sentence because he did not waive
his rights under Blakely, and he did not understand the plea agreement. We have
considered these arguments and conclude that the district court did not abuse its
1
There are exceptions to the statute of limitations, but Kpahn does not argue that any
exception applies. See Minn. Stat. § 590.01, subd. 4(b) (2014).
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discretion in denying relief. See Ture v. State, 681 N.W.2d 9, 20 (Minn. 2004) (rejecting
arguments without detailing consideration of each argument).
Affirmed.
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