This opinion will be unpublished and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
A16-0534
Marcus Allen Brown, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed December 5, 2016
Affirmed
Ross, Judge
Hennepin County District Court
File No. 27-CR-05-009930
Marcus Allen Brown, Bayport, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Ross,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
Marcus Brown killed one man and wounded another in a shooting outside his home
in 2004. In his fourth postconviction petition, Brown challenges his sentence for second-
degree murder, arguing that the postconviction court erred by summarily denying his
purported motion to correct his sentence and that the district court relied on improper
factors to depart upwardly from his presumptive sentence. Because Brown’s petition is
barred as untimely and repetitive under Minnesota Statutes section 590.01, subdivision 4
(2014), and State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), we affirm.
FACTS
A grand jury indicted Marcus Brown for first-degree murder and two counts of
attempted first-degree murder after Brown shot two men in August 2004. Brown pleaded
guilty to an amended charge of second-degree intentional murder in September 2005. He
waived his Blakely right to a jury trial on aggravating sentencing factors and stipulated that
three aggravating factors justified an upward departure to 432 months in prison from the
presumptive sentence of 306 months: that the offense involved multiple victims, that the
offense posed greater-than-normal danger because many people were in the area, and that
he committed the crime with particular cruelty by shooting the victim multiple times while
he was incapacitated in the presence of his father and by then failing to seek medical
treatment for him. The state agreed not to charge Brown with an entirely different murder
from 2000. The district court imposed a 432-month sentence.
Brown has already unsuccessfully challenged his conviction and sentence. He filed
a direct appeal from his judgment of conviction, then he voluntarily dismissed the appeal
in June 2006. He filed a purported motion to correct his sentence in October 2007, alleging
Blakely violations and challenging the upward sentencing departure. The postconviction
court concluded that Brown had waived his right to a Blakely hearing, we affirmed, and
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the supreme court denied review. Brown v. State, No. A08–0709 (Minn. App. Mar. 31,
2009), review denied (Minn. June 16, 2009) (Brown I). Brown next filed a postconviction
petition in 2010 seeking to withdraw his plea and asserting Brady violations. He also
challenged his identification procedures and argued that the state failed to disclose a
witness’s inability to identify him as the shooter. The postconviction court held an
evidentiary hearing and denied Brown’s petition, we again affirmed, and the supreme court
denied review. Brown v. State, No. A11–1503 (Minn. App. Apr. 16, 2012), review denied
(Minn. June 27, 2012) (Brown II). Brown filed another purported motion to correct his
sentence in September 2014, again alleging Blakely violations and contesting the upward
sentencing departure. The postconviction court denied Brown’s motion and we affirmed.
Brown v. State, No. A15–0349 (Minn. App. Jan. 4, 2016) (Brown III).
Even before we affirmed the district court in Brown III, Brown had filed what he
characterized as a motion to correct his sentence. He asked the district court to reduce his
sentence to 306 months, arguing that the district court failed to provide a copy of his
sentencing departure report to the Minnesota Sentencing Guidelines Commission and that
it had improperly relied on his failure to obtain medical assistance as an aggravating factor.
The district court construed Brown’s motion as a postconviction petition and summarily
denied it, concluding that it was both time-barred and Knaffla-barred. The court also
concluded that Brown’s petition was without merit. This appeal follows.
DECISION
Brown appeals from the district court’s denial of his petition for postconviction relief.
We generally review a district court’s decision denying a postconviction petition for an abuse
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of discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). But Brown’s appeal
challenges the district court’s characterization of his rule 27 motion as a petition for
postconviction relief under Minnesota Statutes section 590.01. Whether Brown’s motion was
a petition for postconviction relief under section 590.01 is a threshold issue that requires
us to interpret the rule and statute. We interpret statutes and procedural rules de novo. State
v. Coles, 862 N.W.2d 477, 479 (Minn. 2015).
A person convicted of a crime may challenge his sentence in two ways: by filing a
petition for postconviction relief under Minnesota Statutes section 590.01, subdivision 1,
or by filing a motion to correct his sentence under Minnesota Rule of Criminal Procedure
27.03, subdivision 9. Washington v. State, 845 N.W.2d 205, 210 (Minn. App. 2014). The
two remedies face different conditions. Vazquez v. State, 822 N.W.2d 313, 317–18 (Minn.
App. 2012). A petition for postconviction relief has a temporal condition: it must generally
be filed within two years after an appellate court’s disposition of a direct appeal. Minn.
Stat. § 590.01, subd. 4(a)(2). It also has a substantive condition in that, after a direct appeal,
“all matters raised therein, and all claims known but not raised, will not be considered upon
a subsequent petition for postconviction relief.” Knaffla, 309 Minn. at 252, 243 N.W.2d at
741; see also Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003) (extending the Knaffla rule
to claims that were known or raised in a previous postconviction petition). A motion to
correct an unauthorized sentence under rule 27.03, subdivision 9, is not subject to the same
temporal and substantive conditions. Washington, 845 N.W.2d at 211.
Recent caselaw instructs us how to characterize Brown’s motion. When a convicted
defendant challenges a sentence that was imposed as part of a bargained plea agreement,
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his motion for relief brought under rule 27.03, subdivision 9, is properly treated as a petition
for postconviction relief rather than a rule 27.03 sentence-correction motion. Coles, 862
N.W.2d at 481–82. Brown’s sentence followed a negotiated plea agreement. He pleaded
guilty to second-degree intentional murder to avoid the first-degree murder charge for
which he was indicted and to avoid an unrelated potential murder charge. Brown also
waived his right to a Blakely hearing and stipulated that three aggravating factors justified
an upward sentencing departure. This is the type of bargaining and agreement the Coles
court addressed and led to treatment as a postconviction petition.
Brown’s ultimate argument that the facts and aggravating factors were insufficient
to support an upward durational departure is, in essence, a challenge to the terms of the
negotiated plea agreement. A sentence reduction following the plea agreement would
deprive the state of the benefits it bargained for in the agreement and undermine the effect
of Brown’s acknowledging the aggravating factors. Because Brown’s challenge implicates
the factual basis for his guilty plea, his motion is a postconviction petition under Coles.
Brown argues that the district court’s reliance on Coles violates the constitutional
prohibition on ex post facto laws. But the Ex Post Facto Clauses in the United States and
Minnesota Constitutions limit legislative powers so that substantive laws (or the new
interpretation of substantive laws) that render conduct punishable in a way it was not
previously punishable are unconstitutional. See Rew v. Bergstrom, 845 N.W.2d 764, 790
(Minn. 2014); see also Marks v. U.S., 430 U.S. 188, 191–92, 97 S. Ct. 990, 992–93 (1977)
(clarifying that the rights protected by these clauses are protected against judicial action by
the Due Process Clause of the Fifth Amendment). The Ex Post Facto Clauses do not
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prevent merely procedural changes in the law. See Rew, 845 N.W.2d at 790. The Coles
court did not establish a new substantive criminal law or develop a new interpretation of a
substantive criminal law. Its holding instead clarified how preexisting law applied, and the
point Brown contests now is entirely procedural. The Ex Post Facto Clauses do not protect
him.
Having determined that the district court’s characterization of Brown’s motion was
correct, we have no difficulty deciding whether the court abused its discretion by
determining that Brown’s petition was time-barred and Knaffla-barred. The time bar is
clear. Brown’s sentence became final in 2006 when he dismissed his direct appeal, and he
filed his fourth postconviction petition almost a decade later in October 2015. No exception
to the two-year limitation of Minnesota Statutes section 590.01, subdivision 4(a) applies.
The Knaffla bar is also clear. Issues arising from the departure report and the sufficiency
of the aggravating factors were known or raised, or could have been raised, in Brown’s
previous postconviction proceedings. The district court did not abuse its discretion by
concluding that Brown’s petition was both time-barred and Knaffla-barred.
We cannot address the merits of the numerous issues Brown raises on appeal. But
we observe that the reasons for the upward departure were reflected in the stipulation, the
sentencing worksheet, and on-the-record statements. And as we have noted before, the facts
establish that at least one aggravating factor permitted the district court to depart upward
in sentencing. So in addition to its procedural infirmities, Brown’s challenge to his sentence
is substantively unpersuasive.
Affirmed.
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