                           This opinion will be unpublished and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
                                       A15-0349

                               Marcus Allen Brown, petitioner,
                                         Appellant,

                                              vs.

                                     State of Minnesota,
                                        Respondent.

                                   Filed January 4, 2016
                                         Affirmed
                                      Peterson, Judge

                               Hennepin County District Court
                                 File No. 27-CR-05-009930

Marcus A. Brown, Bayport, Minnesota (pro se appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

         Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Reyes,

Judge.

                          UNPUBLISHED OPINION

PETERSON, Judge

         In his third postconviction petition, appellant seeks relief under Minn. R. Crim. P.

27.03, subd. 9, arguing that his 2005 sentence for second-degree murder must be corrected
because it was unauthorized. Because appellant’s motion is a postconviction petition and

it is time-barred under Minn. Stat. § 590.01, subd. 4 (2014), we affirm.

                                         FACTS

       Appellant Marcus Allen Brown was indicted for one count of first-degree murder

and two counts of attempted first-degree murder arising out of an incident that occurred on

August 19, 2004. On September 12, 2005, the scheduled trial date, Brown pleaded guilty

to an amended charge of second-degree intentional murder. At the same time, Brown

waived his right to a jury trial on sentencing factors and stipulated that aggravating

circumstances existed that supported an upward departure to 432 months from the

presumptive sentence of 306 months. See Blakely v. Washington, 542 U.S. 296, 124 S. Ct.

2531 (2004). In the stipulation, Brown agreed that there were three aggravating factors:

(1) the offense involved multiple victims; (2) the offense was committed under

circumstances of greater-than-normal danger because many people were in the area; and

(3) the offense was committed with particular cruelty, because the victim was shot while

incapacitated in the presence of his father and Brown failed to seek medical treatment. The

state agreed not to proceed on another potential murder charge from 2000, unless new

evidence of that crime was discovered.

       In October 2005, Brown appeared for sentencing but asked to withdraw his guilty

plea. The district court continued the sentencing hearing to December 12, 2005, when

Brown indicated that he wanted to proceed with sentencing. The district court sentenced

Brown to 432 months, based on the stipulated aggravating factors.




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       Brown filed a direct appeal from his judgment of conviction, but voluntarily

dismissed the appeal in June 2006. In October 2007, Brown filed a motion to correct his

sentence with the district court, alleging Blakely violations and challenging the aggravating

factors. The district court treated the motion as a postconviction petition and denied relief,

concluding that Brown had waived his right to a Blakely hearing. Brown appealed to this

court, which affirmed the district court. Brown v. State, No. A08-0709, 2009 WL 818424

(Minn. App. Mar. 31, 2009), review denied (Minn. June 16, 2009) (Brown I). The supreme

court denied further review.

       In September 2010, Brown filed a second postconviction petition, asking to

withdraw his plea based on (1) multiple Brady violations; (2) suggestive photo

identification procedures; and (3) the state’s failure to disclose that a key witness could not

identify Brown as the assailant. After an evidentiary hearing, the district court denied

Brown’s second postconviction petition, concluding that his newly discovered evidence

was unreliable and he had failed to sustain his burden of proof. Brown appealed the district

court’s decision to this court, which affirmed the district court’s denial of postconviction

relief. Brown v. State, No. A11-1503 (Minn. App. Apr. 16, 2012), review denied (Minn.

June 27, 2012) (Brown II). The supreme court denied further review.

       In September 2014, Brown filed a motion to correct his sentence, alleging Blakely

violations and arguing that an upward departure cannot be based solely on a plea

agreement. The district court denied Brown’s motion, concluding that the motion was a

postconviction petition because he sought to withdraw his plea, and that it was time-barred




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under Minn. Stat. § 590.01 (2014). The district court also concluded that his claims were

without merit. This appeal followed.

                                      DECISION

       A person convicted of a crime may challenge his conviction or sentence by

postconviction petition under Minn. Stat. § 590.01, subd. 1, or his sentence by motion to

correct a sentence not authorized by law under Minn. R. Crim. P. 27.03, subd. 9. These

two remedies coexist but are subject to different conditions. Vazquez v. State, 822 N.W.2d

313, 317 (Minn. App. 2012).

       A postconviction petition must be filed within two years after the later of the entry

of judgment of conviction or sentence if there is no direct appeal, or disposition of a

petitioner’s direct appeal, subject to certain exceptions. Minn. Stat. § 590.01, subd. 4. In

addition, claims that were raised or could have been raised in a prior postconviction petition

will not be considered in a subsequent petition for postconviction relief. Lussier v. State,

853 N.W.2d 149, 152 (Minn. 2014); see Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003)

(extending rule of State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) to

subsequent postconviction petitions).

       A motion to correct an unauthorized sentence under Minn. R. Crim. P. 27.03, subd.

9, is not subject to the same time bar or a limitation against filing a second or subsequent

motion, and may be raised at any time. Washington v. State, 845 N.W.2d 205, 211 (Minn.

App. 2014). But rule 27.03, subdivision 9, “authorizes relief only if a party challenges a

sentence, as opposed to a conviction, and only if a party does so by asserting that a sentence

is unauthorized by law in the sense that the sentence is contrary to an applicable statute or


                                              4
other applicable law.” Id. at 213 (quotation omitted). “[A]n offender may not avoid the

requirements of the postconviction act by simply labeling a challenge as a motion to correct

a sentence under rule 27.03, subdivision 9.” Id. at 212. A petition or motion that asserts a

challenge to the conviction, seeks to withdraw a guilty plea because the facts at sentencing

were inaccurate, or is based on the district court’s selection of one of two or more

authorized sentences, may not be made in a rule 27.03 motion. Id. at 213.

       The Minnesota Supreme Court recently stated that when a defendant challenges a

sentence that was imposed as part of a plea agreement, a motion for relief under rule 27.03,

subdivision 9, “impacts more than simply the sentence.” State v. Coles, 862 N.W.2d 477,

481 (Minn. 2015). In this situation, a defendant who succeeds in reducing a sentence may

retain the benefits, while escaping the consequences, of a plea negotiation. Id. Thus, the

supreme court held, a challenge to a sentence negotiated as part of a plea agreement should

be treated as a petition for postconviction relief under section 590.01, not as a motion to

correct a sentence under rule 27.03. Id. at 482.

       Brown’s sentence was negotiated as part of a plea agreement. He pleaded guilty to

an amended charge of second-degree intentional murder, a reduction from first-degree

murder; the state agreed to forego charges on a second matter, unless new evidence was

discovered; he waived his right to a Blakely hearing on sentencing and stipulated to three

aggravating factors; and the parties agreed to an upward departure from the presumptive

sentence. Brown’s challenge impacts more than his sentence; the plea negotiation resulted

in real benefits to him. The district court did not err by characterizing Brown’s current




                                             5
petition as a postconviction petition under section 590.01, rather than a challenge to an

unauthorized sentence under rule 27.03.

      Because Brown’s conviction became final in 2006 when he voluntarily dismissed

his direct appeal, his postconviction petition is time-barred under Minn. Stat. § 590.01,

subd. 4. Also, although Brown now argues that the aggravating factors are insufficient

under the sentencing guidelines to support an upward durational departure, this issue was

known at the time of sentencing, could have been raised in his prior postconviction

petitions, and is now barred. See Lussier, 853 N.W.2d at 152.

      We need not address the merits of Brown’s postconviction petition because the

petition is time-barred, but we note that Brown waived his right to a Blakely hearing

following the procedures set forth in Minn. R. Crim. P. 26.01, subd. 1(2). See State v.

Thompson, 720 N.W.2d 820, 827 (Minn. 2006) (holding that defendant may waive his right

to a sentencing hearing). This court previously reviewed Brown’s Blakely waiver and

concluded that it was valid. Brown I, 2009 WL 818424, at *4. And at least one of the three

aggravating factors to which Brown stipulated is a permissible basis for an upward

departure from the sentencing guidelines. The Minnesota Supreme Court has “repeatedly

held that the risk to bystanders is an appropriate factor for courts to consider when

determining the seriousness of a crime.” State v. Edwards, 774 N.W.2d 596, 607 (Minn.

2009) (affirming upward departure when the assault “generated significant risk of bodily

harm to a large number of people”). Brown’s challenge to his sentence is without merit.

      Affirmed.




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