This opinion will be unpublished and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
A14-0444
Pedro Maldono Rodriguez, Jr., petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed November 17, 2014
Affirmed
Reilly, Judge
Polk County District Court
File No. 60-KX-04-000319
Pedro Rodriguez, Faribault, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Gregory Alan Widseth, Polk County Attorney, Crookston, Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Peterson, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
REILLY, Judge
Appellant challenges the denial of his petition for postconviction relief, arguing
that the district court erred by (1) imposing an upward durational departure during
sentencing, (2) imposing consecutive sentences, and (3) improperly convicting appellant
of a crime.1 Because appellant’s postconviction petition is statutorily time-barred and
Knaffla-barred, we affirm.
FACTS
In July 2004, appellant Pedro Rodriguez pleaded guilty to four counts of
controlled substance crime, including one count of conspiracy to commit a controlled
substance crime and one count of possession of a controlled substance with intent to sell,
as well as one count of failing to affix a tax stamp and one count of felon in possession of
a firearm, arising out of criminal activity that occurred between January 2003 and March
2004. In August 2004, the district court sentenced appellant to imprisonment for a period
of 278 months for conspiracy to commit a controlled substance crime. The district court
imposed an upward durational departure based on its finding that appellant’s criminal
activity involved a major controlled substance offense, that there were three or more
active participants, and that a juvenile was present during the commission of the offense.
The district court also imposed a 158-month sentence for possession of a controlled
substance with intent to sell, to be served concurrently with the first count, and a 60-
month sentence for felon in possession of a firearm, to be executed and served
consecutively to the sentence imposed in count one, for a total prison sentence of 338
months.
Appellant appealed his conviction to this court in November 2004. In July 2005,
we determined that the district court erred by imposing an upward durational departure
1
Specifically, appellant asserts that: “In the present case, above-entitled, [appellant]
makes the claim that his Conviction for Conspiracy to commit a Controlled Substance
Crime does not meet the legal definition of a crime against person as a matter of law.”
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from the presumptive sentence based solely on judicially found facts, in violation of
appellant’s constitutional rights. State v. Rodriguez, A04-2192, 2005 WL 1669493
(Minn. App. July 19, 2005), review denied (Minn. Sept. 28, 2005). We reasoned that
“[a]lthough appellant waived his right to a jury trial on the issue of his guilt, he did not
waive his right to a jury finding on sentencing.” Id. at *2. Accordingly, we reversed and
remanded for resentencing in accordance with Blakely. Id. (citing Blakely v. Washington,
542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004) (requiring that “any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt”)). The Minnesota Supreme Court denied
the state’s petition for further review in September 2005.
In February 2006, the district court conducted a Blakely hearing before a
sentencing jury to determine the existence of aggravating factors supporting an upward
durational departure from the presumptive sentence. The sentencing jury found four
aggravating factors: that appellant’s conspiracy to commit a controlled substance crime
was a major controlled substance offense, that appellant sold cocaine to juveniles during
the course of the offense, that the offense was committed as part of a group of three or
more persons who all actively participated in the crime, and that appellant was the parent,
legal guardian, or caretaker of a juvenile who was present during the commission of the
offense. The district court adopted the jury’s findings, determined that there were
“substantial controlling circumstances that justify an upward departure,” and again
imposed the previous 338-month sentence.
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Appellant appealed the district court’s decision in May 2006, claiming among
other things that the district court erred by imposing consecutive sentences. State v.
Rodriguez, 738 N.W.2d 422, 433 (Minn. App. 2007), aff’d, 754 N.W.2d 672 (Minn.
2008). We affirmed the district court, concluding that it did not err by imposing
consecutive sentences. Id. The Minnesota Supreme Court granted appellant’s petition
for review in November 2007 and affirmed appellant’s sentence in August 2008.
Rodriguez, 754 N.W.2d at 672. The supreme court determined that the record contained
sufficient evidence supporting the jury’s aggravating-factors findings, justifying an
upward sentencing departure. Id. at 685.
In October 2013, appellant filed a motion for “correction of unauthorized sentence
under: Minn. R. Crim. P. 27.03, sub. 9,” arguing that the district court erred by ordering a
double durational departure, that the consecutive sentences were unauthorized by law,
and that he is entitled to concurrent sentences under the law in effect at the time of his
sentencing. The district court treated appellant’s motion as one for postconviction relief
and denied it in January 2014 on the grounds that it was statutorily time-barred and
Knaffla-barred. This appeal followed. Respondent did not in any way respond to this
appeal.
DECISION
Denial of a petition for postconviction relief is reviewed for an abuse of discretion.
State v. Vang, 847 N.W.2d 248, 266 (Minn. 2014). The district court’s factual
determinations are reviewed under a clearly erroneous standard and will not be reversed
unless they lack factual support in the record. Id.
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I.
Appellant characterizes his petition as one to correct a sentence pursuant to rule
27.03 of the Minnesota Rules of Criminal Procedure, which permits the court, at any
time, to correct a sentence “not authorized by law.” Minn. R. Crim. P. 27.03, subd. 9.
Based on the sentencing guidelines and statutes in effect at the time, it is apparent on its
face that appellant’s sentence was lawful. See Minn. Stat. § 609.11, subds. 5(b), 5a
(2002); Minn. Sent. Guidelines II.D, .F (2002). Because consecutive sentencing was
“permissive,” the sentencing court was authorized to impose consecutive sentences.
Thus, the sentence was one “authorized by law.”
Furthermore, as this court has noted in other postconviction sentence appeals, just
because the appellant files the petition pursuant to rule 27.03, does not automatically
mean that it is the applicable rule. Recently, we held that “an offender may file a motion
to correct sentence pursuant to [subdivision 9] only if the offender challenges the
sentence on the ground that it is ‘unauthorized by law’ in the sense that the sentence is
contrary to an applicable statute or other applicable law.” Washington v. State, 845
N.W.2d 205, 214 (Minn. App. 2014). An offender wishing to challenge the sentence for
“any other reason” must do so under Minnesota Statutes chapter 590. Id.; see also
Powers v. State, 731 N.W.2d 499, 501 n.2 (Minn. 2007) (stating that section 590.01 is
“broad enough to encompass a motion pursuant to Minn. R. Crim. P. 27.03”). The
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district court characterized appellant’s motion as a petition for postconviction relief
pursuant to Minn. Stat. § 590.01 (2012).2
Because we conclude that appellant has not demonstrated a viable rule 27.03
claim, we next consider whether the petition is timely pursuant to Minn. Stat. § 590.01.
We determine that appellant’s petition is untimely under Minnesota Statutes section
590.01, which precludes the filing of a petition for postconviction relief “more than two
years after . . . an appellate court’s disposition of petitioner’s direct appeal.” Minn. Stat.
§ 590.01, subd. 4(a)(2). The Minnesota Supreme Court issued an order affirming
appellant’s sentence in August 2008, and appellant’s direct appeal became final 90 days
later, in November 2008. See Berkovitz v. State, 826 N.W.2d 203, 207 (Minn. 2013)
(“When an appellant does not file a petition for certiorari with the Supreme Court of the
United States following [the Minnesota Supreme Court’s] decision on direct appeal, the
appellant’s conviction becomes ‘final’ 90 days after our decision for purposes of Minn.
Stat. § 590.01, subd. 4(a)(2).”). It is undisputed that appellant did not file his
postconviction petition until 2013, well outside the two-year statutory deadline imposed
by section 590.01.
The statute recognizes several exceptions to the two-year limitations period,
including: a physical disability or mental disease precluding timely assertion of the claim,
allegations of the existence of newly discovered evidence, a new interpretation of federal
2
Even assuming this is a proper rule 27.03 motion, appellant’s sentencing arguments
have already been reviewed on appeal, rejected, and have no merit.
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or state law, an application for relief for a conviction arising prior to May 1980, or a
petition that is not frivolous and is brought in the interests of justice. Minn. Stat.
§ 590.01, subd. 4(b). Appellant does not assert that any of these exceptions apply.
Accordingly, appellant’s postconviction petition is time-barred under a plain reading of
the statute, and the district court did not abuse its discretion in denying his motion for
relief.
II.
Appellant’s postconviction petition is also Knaffla-barred. The Knaffla rule
provides that a court may not review successive petitions for postconviction relief that
raise the same issues that were raised or could have been raised in a direct appeal or in a
prior petition for postconviction relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d
737, 741 (1976). We recognize the following two exceptions to an otherwise Knaffla-
barred claim: “if (1) the defendant presents a novel legal issue or (2) the interests of
justice require the court to consider the claim.” Hooper v. State, 838 N.W.2d 775, 787
(Minn. 2013) (quotation omitted). “The second exception may be applied if fairness
requires it and the petitioner did not deliberately and inexcusably fail to raise the issue on
direct appeal.” White v. State, 711 N.W.2d 106, 109 (Minn. 2006) (quotation omitted).
Appellant raises three arguments on appeal in support of his petition.
First, appellant argues that his sentence was an illegal upward departure. This
issue has been fully considered on appeal. The supreme court stated that:
The sentencing jury’s findings that appellant’s conspiracy
involved an attempted or actual sale or transfer of controlled
substances in quantities substantially larger than for personal
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use and that it involved a high degree of sophistication or
planning, occurred over a lengthy period of time, or involved
a broad geographic area of disbursement support the finding
of the major controlled substance offense aggravating factor
under [Minnesota’s sentencing guidelines].
Rodriguez, 754 N.W.2d at 685. In this case, the supreme court affirmed appellant’s
sentence and concluded that “the record contains sufficient evidence to justify the
departure.” Id. We see no need to revisit this issue in this appeal.
Next, appellant argues that he is entitled to have his sentences run concurrently
rather than consecutively. We previously addressed this issue and determined that the
district court did not err by imposing consecutive sentences. Rodriguez, 738 N.W.2d at
433. Appellant also presented this issue to the supreme court on appeal, and the supreme
court affirmed the sentence. Rodriguez, 754 N.W.2d at 685 (affirming appellant’s
sentence without further analyzing the issue of concurrent or consecutive sentences).
Appellant has not raised a claim so novel that the legal basis was not available on direct
appeal, nor has he demonstrated that the interests of justice require yet another review of
this issue.
Lastly, appellant argues that he was improperly convicted of a crime. Appellant
has not supported this argument with any relevant facts or legal authority, and we
consider it waived. See State v. Manley, 664 N.W.2d 275, 286 (Minn. 2003) (deeming
waived arguments on appeal that are unsupported by facts in the record and contain no
citation to any relevant legal authority). Appellant’s arguments have been fully and
completely addressed on appeal. The district court did not abuse its discretion in
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determining that appellant’s postconviction petition was procedurally barred under
Knaffla and denying appellant’s claim for relief.
Affirmed.
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