                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2016).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0464

                         Darrell Dewayne Dickerson, petitioner,
                                      Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                 Filed January 17, 2017
                                        Affirmed
                                     Bratvold, Judge

                             Hennepin County District Court
                              File No. 27-CR-98-018380


Bradford Colbert, 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 Worke, Presiding Judge; Cleary, Chief Judge; and

Bratvold, Judge.

                        UNPUBLISHED OPINION

BRATVOLD, Judge

      Nearly sixteen years after being sentenced for multiple convictions, appellant filed

a motion to correct his sentences, arguing that his sentences are unauthorized because they
are being executed consecutively despite the sentencing court’s failure to pronounce

consecutive sentences. The district court analyzed appellant’s motion both as a motion to

correct a sentence and as a petition for postconviction relief, and denied relief. Appellant

argues that the district court erred in both parts of its dual analysis. Because the sentencing

court stated appellant’s consecutive sentences with specificity at the time he was sentenced,

we affirm.

                                           FACTS

       In January 1998, appellant Darrell Dewayne Dickerson was involved in four

incidents in Hennepin and Ramsey Counties. In Ramsey County on January 7, Dickerson

shot at a man, although his shot did not hit anyone. On January 11 and 12, Dickerson was

involved in three robberies (including one in Ramsey County); guns were used in all three

robberies, two victims were shot, and one of the shooting victims died. Dickerson was

indicted in Hennepin County on charges of aggravated robbery, burglary, three counts of

assault, and first and second-degree murder. He was separately charged in Ramsey County

for two assaults.

       Dickerson pleaded guilty on October 4, 1999, to first-degree aggravated robbery,

first-degree burglary, two counts of second-degree assault, and an amended charge of

second-degree unintentional murder for the Hennepin County crimes. Dickerson also

pleaded guilty to Ramsey County charges of first-degree assault 1 and second-degree

assault. The plea agreement called for dismissal of the first-degree murder charge and


1
 The sentencing transcript reflects that the district court pronounced this crime as a third-
degree assault, but Dickerson acknowledges that it was a first-degree assault.

                                              2
stated that the “[p]arties agree to 440 months.” When the parties described the plea

agreement to the district court, they agreed that “[Dickerson] will receive the presumptive,

consecutive guidelines sentence for all the offenses, with the total being 440 months in

prison.”

       At Dickerson’s sentencing on October 22, 1999, his attorney read aloud a letter that

Dickerson wrote to the victims, in which he stated that he would be in prison for 22 years.

The sentencing court sentenced Dickerson to 48 months for first-degree aggravated

robbery, 48 months for first-degree burglary, 36 months for each of the two second-degree

assaults, and 150 months for the second-degree murder. Additionally, Dickerson was

sentenced to 36 months for the second-degree Ramsey County assault and 86 months for

the first-degree Ramsey County assault. The sentencing court concluded:

              The total of those sentences is 440 months. You must serve at
              least 293 and one-third months in custody. You will be eligible
              for supervised release for a period of 146 and two thirds
              months if you have no disciplinary violations.

Written documentation of the sentences indicates “[a]ll counts consecutive,” and the

warrant of commitment states that the sentences are “consecutive with each other” and that

the sentence is for a total of 440 months.

       Dickerson did not file a direct appeal or file a petition for postconviction relief.

       In October 2015, Dickerson filed a motion to correct his sentences under Minn. R.

Crim. P. 27.03, subd. 9, arguing that his consecutive sentences are unauthorized. 2 In


2
  The order assigning the case to a judge stated that “Petitioner herein has filed a Petition
for Post-Conviction Relief.” Dickerson promptly replied that he did not file a
postconviction petition “and neither should the filing be construed as such.”

                                              3
response to Dickerson’s motion, the state argued that Dickerson’s request should be

analyzed as a petition for postconviction relief and denied as time-barred; in the

alternative, the state argued that his motion fails on the merits because he received the

sentences agreed to in his plea petition. After filing his motion, Dickerson retained counsel

from Legal Assistance to Minnesota Prisoners and submitted a supplemental

memorandum arguing that the two-year statute-of-limitations period for postconviction

proceedings violates the separation-of-powers doctrine.

       The postconviction court first analyzed Dickerson’s request as a petition for

postconviction relief and determined that it was filed after the statutory deadline and was

therefore time-barred. Alternatively, to avoid reaching the separation of powers issue, the

postconviction court also analyzed Dickerson’s request as a motion to correct his

sentences and determined it fails on the merits. Dickerson appeals.

                                      DECISION

       Minnesota recognizes at least three paths to challenge an error in a criminal

sentence. First, a defendant may file a direct appeal after entry of judgment of conviction

and sentence. Minn. R. Crim. P. 28.02, subd. 2(1). Second, a defendant may file a motion

to “correct a sentence not authorized by law” “at any time.” Minn. R. Crim. P. 27.03, subd.

9. Third, a defendant who claims that his or her sentence “violated the person’s rights under

the Constitution or laws of the United State or of the state . . . may commence a proceeding”

to obtain postconviction relief. Minn. Stat. § 590.01, subd. 1(1) (2014).

       Dickerson brought a motion to correct his sentences under rule 27.03, which the

postconviction court analyzed as a petition for postconviction relief and, alternatively, as a


                                              4
motion for corrected sentences. This court reviews de novo a district court’s application of

the rules of criminal procedure and its construction of a statute. State v. Coles, 862 N.W.2d

477, 479 (Minn. 2015); Johnson v. State, 801 N.W.2d 173, 176 (Minn. 2011). 3 Dickerson

contends his motion falls under rule 27.03 and is not a postconviction petition. The state

argues that Dickerson’s motion should be construed as a postconviction petition.

       The plain language of rule 27.03 “is limited to sentences, and the court’s authority

under the rule is restricted to modifying a sentence.” Coles, 862 N.W.2d at 480.

Consequently, a motion to correct a sentence should be construed as a petition for

postconviction relief when the motion “involves more than simply the sentence the district

court imposed.” Id. at 481. For example, when the motion “involves the plea agreement

itself” then it is properly construed as a postconviction petition. Id. On the other hand, a

motion to correct a sentence should not be construed as a petition for postconviction relief

“when the motion does not impact the underlying conviction.” Evans v. State, 880 N.W.2d

357, 360 (Minn. 2016) (holding motion to correct sentence is proper method to challenge

court’s legal authority to award restitution); see also Wayne v. State, 870 N.W.2d 389, 391

(Minn. 2015) (holding challenge to criminal conviction cannot be made via rule 27.03 “to

circumvent the procedural requirements of the postconviction statute”).




3
  The Minnesota Supreme Court recently declined to decide the proper standard of review
when examining a district court’s decision to treat a motion under rule 27.03, subdivision
9, as a petition for postconviction relief under section 590.01 because the case before it
required reversal whether it was reviewed de novo or under a more deferential standard of
review. Reynolds v. State, __ N.W.2d __, __ 2016 WL 7118915 at *2 n.2 (Minn. Dec. 7,
2016).

                                             5
       Here, Dickerson’s motion does not impact his underlying convictions because it is

premised on an alleged error during sentencing proceedings. He challenges his sentences,

and does not ask for any relief related to his convictions. Accordingly, we conclude that

Dickerson’s request is properly construed as a motion for corrected sentences.

Alternatively, out of an abundance of caution and because Dickerson’s plea agreement

included consecutive sentences, we will also review Dickerson’s request as a petition for

postconviction relief.

I.     The postconviction court did not err when it determined that the sentencing
       court pronounced consecutive sentences.
       Rule 27.03 permits a district court to “correct a sentence not authorized by law.”

Minn. R. Crim. P. 27.03, subd. 9; State v. Schnagl, 859 N.W.2d 297, 301 (Minn. 2015).

“For a sentence to be unauthorized, it must be contrary to law or applicable statutes.”

Schnagl, 859 N.W.2d at 301. This court “review[s] the postconviction court’s denial of a

motion to correct a sentence for an abuse of discretion.” Townsend v. State, 867 N.W.2d

497, 501 (Minn. 2015).

       Dickerson argues that his sentences are unauthorized because the sentencing court

failed to expressly state that his sentences are consecutive. The state responds that the

district court specified consecutive sentencing. The postconviction court determined that

the sentencing transcript did not include the word “consecutive,” but contained enough

specificity to pronounce consecutive sentences.

       When “separate sentences of imprisonment are imposed on a defendant for two or

more crimes,” the sentencing court “shall specify whether the sentences shall run



                                           6
concurrently or consecutively.” Minn. Stat. § 609.15, subd. 1 (1998). The sentencing court

“is required to state the precise terms of the sentence,” including whether multiple

sentences run concurrently or consecutively. State v. Rasinski, 527 N.W.2d 593, 594-95

(Minn. App. 1995). If the sentencing court fails to specify consecutive sentences, “the

sentences shall run concurrently.” Minn. Stat. § 609.15, subd. 1(a). After-the-fact

adjustments to the sentences will not satisfy the statute; “the court’s formal on-the-record

pronouncement of sentence is controlling.” Rasinski, 527 N.W.2d at 595.

       Dickerson focuses on the statutory language, which requires that a sentencing court

“specify” consecutive sentences. The sentencing court, as described in the postconviction

decision, “never said the words concurrent or consecutive.” Dickerson also relies on our

decision in Rasinksi because the sentencing court in that case did not state whether the

sentence was consecutive, and this court reversed a postconviction denial of a motion for

a corrected sentence. Rasinski reasoned that the record “may have reflected the court’s

intent” but did not meet the statutory requirement of “specify[ing] whether a consecutive

or concurrent sentence is being imposed.” Id. at 595. Specifically, Rasinksi held that “[o]ff-

the-record discussions . . . do not satisfy the statutory requirement,” and that the “statutory

presumption cannot be circumvented by later modification.” Id.

       Dickerson’s reliance on Rasinski is misplaced. When the postconviction court in

Rasinski denied the motion for a corrected sentence, it relied on “in-chambers discussions,

the warrant of commitment, and the denial of work release privileges,” which all indicated

an intent to sentence consecutively. Id. In other words, every reference to consecutive




                                              7
sentencing in Rasinksi was either outside the record or made after the sentencing hearing

had concluded.

       In contrast, the sentencing court’s statements to Dickerson were specific and

occurred on the record during sentencing. The sentencing court pronounced that “the total”

of Dickerson’s sentences was 440 months and that he “must serve at least 293 and one-

third months in custody.” As the postconviction court aptly explained, the sentencing court

made “it clear that [it] intended, and in fact ordered, [Dickerson’s] sentences to run

consecutively.” The postconviction court also highlighted that Dickerson expressly

acknowledged in his sentencing statement “that he would be in prison for 22 years.”

Twenty-two years (or 264 months) is approximately two-thirds of the 440-month sentence

(minus the nearly two years of time that Dickerson had already served); 264 months is how

long Dickerson would serve if he committed no infractions while in prison. Thus,

Dickerson’s reference to 22 years is a reference to consecutive sentences.

       We conclude that the sentencing court sufficiently specified that Dickerson’s

sentences shall run consecutively. The best practice for a sentencing court is to expressly

use the word “consecutive” in imposing the sentence. In this case, however, the sentencing

court’s summary of the sentences, which was made on the record at the time of sentencing,

satisfied the statutory requirement that a sentencing court “specify” when imposing

consecutive sentences. See Minn. Stat. § 609.15, subd. 1. Thus, the postconviction court

did not abuse its discretion in denying Dickerson’s motion because his consecutive

sentences are authorized by law.




                                            8
II.    Alternatively, the district court did not err in concluding that Dickerson’s
       request was a time-barred petition for postconviction relief.
       “In reviewing the district court’s denial of post-conviction relief, including a denial

based on the two-year statutory limit, we review issues of law de novo.” Vazquez v. State,

822 N.W.2d 313, 315 (Minn. App. 2012). When section 590.01 was enacted on August 1,

2005, the legislature enacted a safe-harbor clause allowing “[a]ny person whose conviction

became final before August 1, 2005,” to bring a petition for postconviction relief within

two years of enactment. 2005 Minn. Laws ch. 136, art 14, § 13, at 1097-98; Stewart v.

State, 764 N.W.2d 32, 34 (Minn. 2009). Because Dickerson’s conviction was final before

August 1, 2005, the safe-harbor clause permitted him to file a petition for postconviction

relief until July 31, 2007. Sanchez v. State, 816 N.W.2d 550, 555 (Minn. 2012). Several

statutory exceptions to the limitations period exist, but Dickerson does not argue that any

of them apply. Accordingly, the postconviction court did not err when it determined that

Dickerson’s request was time-barred if considered, in the alternative, as a postconviction

petition.

       Dickerson’s sole argument is that application of this time-bar to his motion violates

the separation of powers. The Minnesota Supreme Court agreed when it decided this issue

in an opinion released after this case was submitted for decision. Reynolds v. State held

that “applying the 2-year limitations period in Minn. Stat. § 590.01, subd. 4, to a Minn. R.

Crim. P. 27.03, subd. 9 motion violates the separation of powers.” Reynolds v. State, __

N.W.2d __, __ 2016 WL 7118915 at *6 (Minn. Dec. 7, 2016). Because we consider




                                              9
Dickerson’s motion on the merits under rule 27.03 and apply the time-bar only in the

alternative, no constitutional issue arises.

III.   Dickerson’s pro se arguments fail.

       Finally, Dickerson’s pro se brief raises several other issues. He first argues that the

sentencing court violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), by

departing from the guidelines without jury findings. However, a comparison of Dickerson’s

sentences and the 1998 sentencing guidelines reveals that he was sentenced within the

guidelines, and Blakely therefore does not apply. See Minn. Sent. Guidelines IV (1998);

see also Minn. Stat. § 609.11, subds. 5, 9 (1998).

       Along the same lines, Dickerson purports to seek reversal of “his upward departures

on Count 1 Aggravated Robbery and Count 2 Burglary in the first degree.” Dickerson was

sentenced to 48 months for each of those counts. This is commensurate with the guidelines

for aggravated robbery and first-degree burglary with a weapon. Minn. Sent. Guidelines

IV (1998). Accordingly, Dickerson’s claims about sentencing departures lack merit.

       Finally, Dickerson argues that the postconviction court was prohibited from

recharacterizing his motion for a corrected sentence as a petition for postconviction relief.

Castro v. United States held that recharacterization of a pro se motion as a litigant’s first

habeas claim requires notification to the litigant because recharacterization “may make it

significantly more difficult to file another such motion.” 540 U.S. 375, 382-83, 124 S. Ct.

786, 792 (2003). Dickerson is incorrect, however, that Castro prohibits recharacterization

of pro se motions. Castro simply requires notice and an opportunity to withdraw the

motion. Id. Moreover, Castro lacks any application because this court affirms the


                                               10
postconviction court’s decision that Dickerson’s motion to correct his sentences lacks

merit, so Dickerson’s pro se arguments fail.

      Because the sentencing court was sufficiently specific in pronouncing consecutive

sentences and application of a time-bar to a postconviction petition does not violate the

separation of powers, we affirm the district court’s denial of Dickerson’s motion.

      Affirmed.




                                               11
