                                STATE OF MINNESOTA

                                 IN SUPREME COURT

                                         A13-0789

Court of Appeals                                                               Gildea, C.J.
                                                                       Dissenting, Page, J.
                                                                       Dissenting, Stras, J.

State of Minnesota,

                            Respondent,

vs.                                                                  Filed: April 15, 2015
                                                                Office of Appellate Courts
Dakari Michael Coles,

                            Appellant.

                              ________________________


Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.

                              ________________________


                                     SYLLABUS

       1.     Because appellant’s motion to correct his sentence implicates his plea

agreement, appellant’s exclusive remedy is a petition for postconviction relief.




                                             1
       2.     Because appellant’s motion for correction of his sentence was filed more

than 2 years after his conviction became final, the motion is time-barred by Minn. Stat.

§ 590.01, subd. 4(a) (2014).

       Affirmed.

                                       OPINION

GILDEA, Chief Justice.

       Appellant Dakari Michael Coles brought a motion challenging his sentence. The

district court sentenced Coles pursuant to the terms of a plea agreement in which the

State agreed to dismiss several charges, and Coles agreed to receive a sentence for a

lesser charge that was an upward durational departure. The question presented is whether

Coles may challenge his sentence in a motion to correct his sentence, see Minn. R. Crim.

P. 27.03, subd. 9 (Rule 27.03), or whether his challenge must be brought in a petition for

postconviction relief, see Minn. Stat. § 590.01, subd. 1 (2014). The district court held

that Coles’ challenge must be brought as a petition for postconviction relief and that his

motion was time-barred by Minn. Stat. § 590.01, subd. 4(a) (2014). The court of appeals

affirmed. Because we conclude that Coles’ challenge to his sentence must be brought in

a petition for postconviction relief, we affirm.

       In 2003, Coles, who was then 16, was at a residence along with an 11-year-old and

a 9-year-old. The younger child saw Coles with his penis in the other child’s mouth.

Coles offered the younger child $10 to keep what she saw to herself, but she told an adult

about the incident.




                                              2
       Respondent the State of Minnesota filed a delinquency petition charging Coles

with first-degree criminal sexual conduct under Minn. Stat. § 609.342, subds. 1(a), 2

(2014), Minn. Stat. § 609.109, subd. 7 (2002). In a separate delinquency petition, the

State charged Coles with first-degree aggravated robbery under Minn. Stat. §§ 609.245,

subd. 1, 609.11, 609.05 (2014), and two counts of simple robbery under Minn. Stat.

§ 609.24 (2014) for another incident. The State filed motions seeking to certify Coles as

an adult for prosecution. 1

       Assuming that Coles was certified as an adult, the presumptive sentence for the

first-degree criminal sexual conduct charge was 144 months and the presumptive

sentence for first-degree aggravated robbery was 48 months. Minn. Stat. § 609.342,

subd. 2(b); Minn. Sent. Guidelines IV & n.2 (2003). Consecutive sentencing for these

offenses would not have been considered a departure under the guidelines. Minn. Sent.

Guidelines II.F. (2003). As a result, Coles could have received a presumptive, aggregate

sentence of 192 months for the charges.

       On August 28, 2003, Coles and the State reached a plea agreement. They agreed

that Coles would plead guilty to an amended charge of second-degree criminal sexual

conduct and to first-degree aggravated robbery in exchange for the State dismissing the

first-degree criminal sexual conduct and simple robbery charges. In addition, the parties

agreed that Coles would be placed on extended jurisdiction juvenile (EJJ) status, so he

1
       Coles was subject to a presumption of certification for prosecution as an adult for
the first-degree criminal sexual conduct and aggravated robbery charges. Minn. Stat.
§ 260B.125, subd. 3 (2014).



                                            3
could receive treatment, and that he would receive a stayed, 96-month aggregate

sentence. This sentence was based on two 48-month, consecutive sentences. The

48-month sentence for second-degree criminal sexual conduct was an upward durational

departure from the presumptive guidelines sentence of 21 months.                Minn. Sent.

Guidelines IV (2003). The imposition of consecutive sentences was also an upward

departure. Id., II.F.

       Coles pleaded guilty to second-degree criminal sexual conduct and first-degree

aggravated robbery. The district court accepted his guilty plea, placed him on EJJ status,

and sentenced him according to the terms of the plea agreement. During the sentencing,

the court stated that it based the upward durational departure on the agreement of the

parties and the age difference between Coles and the victim, which the court said made

the victim vulnerable.

       The basis for the departure is one, this is a negotiation between the
       parties. . . . I would also find another part of this negotiation besides
       admission also had to do with the matter being handled as Extended
       Jurisdiction Juvenile rather than going forward as adult certification. Given
       the age of the child, of the victim in this matter, that I think [a] very strong
       argument can be made for the fact that the age difference given the child’s
       develop—stage of child development being what they are, that there was
       some level of vulnerability for the younger child to being taken advantage
       of by Mr. Coles and would justify the upward departure.

In a subsequent order, the court also noted that Coles “attempted to manipulate” the

younger child “by offering her cash not to tell anyone what she had seen.”

       In 2005, the district court found that Coles violated the terms of his EJJ probation

by failing to complete, and being discharged from, his juvenile sex offender program.




                                              4
Consequently, the district court revoked Coles’ EJJ status and executed his consecutive,

48-month sentences. 2

        In 2012, Coles filed a pro se petition for postconviction relief arguing that the

court had impermissibly sentenced him. While represented by counsel, Coles later filed a

supplemental petition labeled as a petition for postconviction relief, but requesting relief

under Minn. R. Crim. P. 27.03, subd. 9. Coles argued that the district court relied on

improper justifications to support a departure from the presumptive criminal sexual

conduct sentence. The district court denied relief, concluding that Coles’ request was

time-barred under the 2-year postconviction statute of limitations, Minn. Stat. § 590.01,

subd. 4(a). The court determined that the petition for relief was a challenge to Coles’

plea agreement, not just his sentence. The court of appeals affirmed, holding that Coles

could not use Rule 27.03 “to ignore the substance of his petition.” State v. Coles,

No. A13-0789, 2013 WL 6570058, at *3 (Minn. App. Dec. 16, 2013). Because Coles’

challenge implicated his conviction, the court of appeals concluded that the district court

properly construed his request as a time-barred petition for postconviction relief. Id. at

*3-4. We granted Coles’ petition for review.

        Coles argues that his sentence is “not authorized by law” and must be corrected

under Minn. R. Crim. P. 27.03, subd. 9. Coles contends that his sentence is illegal

because the district court imposed an upward durational departure for his criminal sexual


2
        Coles is now on supervised release. His sentence expiration date is December 8,
2017.



                                             5
conduct sentence without citing any valid “substantial and compelling reasons for

departure.” Coles asks our court to correct his sentence by reducing “his consecutive

48-month sentence for criminal sexual conduct to a 21-month concurrent term.” The

State contends that Coles’ request had to be filed under the postconviction statute and that

the request is time-barred under that statute.     The parties’ arguments present issues

regarding the interpretation of a procedural rule and statute, questions subject to de novo

review. Christianson v. Henke, 831 N.W.2d 532, 535 (Minn. 2013); Johnson v. State,

801 N.W.2d 173, 176 (Minn. 2011).

                                             I.

       The parties disagree over whether Coles’ request for correction of his sentence

was brought under the postconviction statute or under the rules of criminal procedure.

Minnesota’s postconviction statute allows a person convicted of a crime to petition the

court to correct a sentence when the sentence “violate[s] the person’s rights under the

Constitution or laws of the United States or of the state.” Minn. Stat. § 590.01, subd. 1.

The statute imposes a 2-year time limit on petitions for postconviction relief from “the

entry of judgment of conviction or sentence if no direct appeal is filed.”              Id.,

subd. 4(a)(1). Our rules of criminal procedure also give the court authority to correct a

sentence in Rule 27.03. The rule provides that “[t]he court may at any time correct a

sentence not authorized by law.” Minn. R. Crim. P. 27.03, subd. 9 (emphasis added). 3


3
      Because Rule 27.03 does not provide a time limit for challenges to a sentence
unauthorized by law, but Minn. Stat. § 590.01 does include such a limitation, an
                                                 (Footnote continued on next page.)


                                             6
       Coles labeled his supplemental petition as a petition for postconviction relief. But

he requested relief pursuant to Rule 27.03. We typically look to the pleadings and the

relief sought in order to determine the nature of a claim. See Abraham v. Cnty. of

Hennepin, 639 N.W.2d 342, 350 (Minn. 2002). But the pleadings in this case are not

dispositive because Coles arguably invoked both the postconviction statute and our

procedural rule.

       While Coles’ pleading could be read as invoking both the postconviction statute

and Rule 27.03, the language of the statute and the rule, together with our precedent,

confirm that Coles’ request falls under the postconviction statute. The language of Minn.

Stat. § 590.01 is broad and plainly encompasses a motion seeking correction of a

sentence. See Minn. Stat. § 590.01, subd. 1(1). Based on the statutory language, we have

recognized that courts in some circumstances have the authority to treat a request to

correct a sentence purportedly brought under Rule 27.03 as a petition for postconviction

relief. See Bonga v. State, 765 N.W.2d 639, 642-43 (Minn. 2009).

       In contrast to the comprehensive language of section 590.01, the plain language of

Rule 27.03 is limited to sentences, and the court’s authority under the rule is restricted to



(Footnote continued from previous page.)
argument could be made that the rule and the statute conflict, thereby raising
separation-of-powers concerns. Cf. State v. Losh, 721 N.W.2d 886, 890-92 (Minn. 2006).
Coles, however, does not argue that applying the statute of limitations provided in Minn.
Stat. § 590.01, subd. 4(a), to his motion to correct his sentence violates the
separation-of-powers doctrine, and therefore, we will not address the possible conflict. See
Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that an issue “not argued in
the briefs” is waived).



                                             7
modifying a sentence. Minn. R. Crim. P. 27.03, subd. 9 (“The court may at any time

correct a sentence not authorized by law.” (emphasis added)). We have interpreted Rule

27.03 narrowly, consistent with its language. See State v. Schnagl, 859 N.W.2d 297, 298

(Minn. 2015) (holding that Rule 27.03 “is not the proper procedure to obtain judicial

review of” an administrative decision “implementing the sentence imposed”).             Our

decision in Johnson v. State, 801 N.W.2d 173 (Minn. 2011), illustrates this point.

       In Johnson, the defendant filed a motion challenging the sentence the district court

imposed as a result of the defendant’s guilty plea. Id. at 175. The defendant also

challenged the validity of his guilty plea. Id. Because the defendant’s challenge went

beyond the sentence, we held that Rule 27.03 did not apply. See id. at 176. Instead, we

held that the defendant had to seek relief under the postconviction statute. Id. We reach

the same conclusion in this case.

       The district court imposed the sentence at issue as part of the court’s acceptance of

the parties’ negotiated plea agreement. See Minn. R. Crim. P. 15.04, subd. 3(1) (noting

that “the trial court judge must reject or accept the plea of guilty on the terms of the plea

agreement”). If, as Coles requests, his sentence is modified, “the terms of the plea

agreement” the parties reached will, in effect, have been rejected.         Id.   In such a

circumstance, our criminal rule requires that the defendant be given a chance to withdraw

his plea of guilty. Id. (“If the court rejects the plea agreement, it must advise the parties

in open court and then call upon the defendant to either affirm or withdraw the plea.”);

State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (recognizing that if a court corrects a




                                             8
sentence that was part of a plea agreement, the defendant “must be allowed to withdraw

from the plea agreement if he so chooses”). Accordingly, where the sentence at issue is

imposed as part of a plea agreement, a motion to change that sentence impacts more than

simply the sentence, and Rule 27.03 does not apply.

       But, Coles argues, he is challenging only his sentence, not his plea agreement or

conviction, and therefore, he has brought a proper Rule 27.03 motion.          We have

recognized, however, that a challenge to a sentence imposed as part of a plea agreement

involves more than simply the sentence. See State v. Lewis, 656 N.W.2d 535, 539 (Minn.

2003). In some plea agreements, the conviction component and the sentence component

are “interrelated.” Id. For example, the parties may have agreed that the defendant

would be convicted of a reduced criminal charge but only if the defendant received a

sentence longer than the presumptive sentence for the reduced charge. Id. at 536. If the

defendant succeeds in reducing his or her sentence, he or she retains the benefit of the

reduced criminal charge but the State no longer receives the benefit of the longer

sentence. See id. at 539.

       Faced with such a situation, we held in Lewis that “where the district court finds

no compelling or substantial circumstances supporting an upward departure in the

sentence that was agreed upon in a plea agreement, it may consider motions to vacate the

conviction and the plea agreement.” Id. The basis for the challenge to the sentence in

Lewis was the same as Coles’ challenge to his sentence. Id. at 537. Moreover, just like

the defendant in Lewis¸ Coles received the benefit of a reduced criminal sexual conduct




                                           9
charge in exchange for agreeing to an upward durational departure on his sentence for

that reduced charge. See id. at 536. Under Lewis, if the district court reduced Coles’

sentence due to improper departure justifications, which is the relief Coles seeks, the

court would be “free to consider the effect that changes in the sentence have on the entire

plea agreement.” 4 Id. at 539.

       Based on our precedent, it is clear that Coles’ request involves more than simply

the sentence the district court imposed; it involves the plea agreement itself. 5 The State

and Coles recognized at the plea hearing that Coles’ sentence and conviction were part of

a negotiated package in which both Coles and the State received a significant benefit. 6


4
       In State v. Maurstad, we ordered the district court to correct a sentence agreed
upon in a plea agreement, relying, in part, on Rule 27.03. 733 N.W.2d 141, 147 (Minn.
2007) (holding that a “sentence based on an incorrect criminal history score is an illegal
sentence” and is correctable at any time under Rule 27.03). The plea agreement in
Maurstad, however, stated that the defendant would “be sentenced according to the
Minnesota sentencing guidelines.” Id. at 143. Unlike Coles’ requested relief, adjusting
Maurstad’s sentence to the correct sentence under the guidelines did not deprive either
side of the benefit of the bargain reached in the plea agreement. See id. The same is not
true here. If the district court reduced Coles’ criminal sexual conduct sentence, the State
would no longer get the benefit of a longer sentence for agreeing to a reduced criminal
sexual conduct charge.
5
       Justice Page’s dissent argues that “had Coles been convicted after trial and given
an illegal sentence, his sentence would be correctable under Rule 27.03 at any time
without regard to his conviction.” In that case, however, the conviction and sentence
would not be interrelated in the way they are in Coles’ case. See Lewis, 656 N.W.2d at
539.
6
        Justice Page argues that the State will retain “the vast majority of the sentence-
related benefits it received” from the plea agreement even if Coles’ sentence is corrected.
This argument hinges on the fact that Coles already served his prison sentence. As a
result, the dissent claims that even if Coles’ sentence were shortened, the State would not
                                                         (Footnote continued on next page.)


                                            10
Coles’ lawyer noted that Coles agreed to a longer sentence for second-degree criminal

sexual conduct because it was “part of the negotiation to go from first degree” criminal

sexual conduct to second-degree criminal sexual conduct and that it was “a substantial

benefit to go from crim sex one to crim sex two.” The prosecutor highlighted the

importance of the sentence length and that the agreed-to 96-month sentence was

“significantly less” than the sentence for the dismissed charge because “crim sex one

would be 144 [months] on its own.” Although Justice Page is correct that “there are any

number of reasons why the State enters into plea agreements,” the parties made it clear

that in this particular plea agreement, the sentence with an upward departure was a

crucial reason.

       Because Coles’ challenge to his sentence implicates more than simply his

sentence, we conclude that it is properly viewed as a petition for postconviction relief

under Minn. Stat. § 590.01, not as a motion to correct a sentence under Rule 27.03. 7



(Footnote continued from previous page.)
lose the benefit of the sentence agreed to in the plea agreement. This analysis, however,
ignores that its legal conclusion—that an offender who pleads guilty to a reduced charge
in exchange for agreeing to an upward departure on his or her sentence may challenge
that upward departure in a Rule 27.03 motion—would apply to an offender who still had
years to go on his or her sentence. Moreover, even though Coles fully served his prison
sentence, he is currently on supervised release. While on supervised release, he is in the
legal custody of the commissioner of corrections and is “subject to re-incarceration for
breach of a condition of release.” See State v. Schwartz, 628 N.W.2d 134, 139 (Minn.
2001). If the district court reduced Coles’ sentence, the State would lose the benefit of
almost 3 years of his supervised release term.
7
      The State offers an alternative argument for why Rule 27.03 does not apply,
arguing that the scope of the rule is narrow and allows challenges only to sentences that
                                                      (Footnote continued on next page.)


                                            11
                                            II.

       Coles filed his pleading seeking relief on May 12, 2012, more than 2 years after

his conviction was final. Having decided that Coles’ request must be construed as a

petition for postconviction relief, we hold that Coles’ request is time-barred by Minn.

Stat. § 590.01, subd. 4(a). 8

       Affirmed.




(Footnote continued from previous page.)
are contrary to the statutory maximum provided in the criminal statute. Given our
conclusion that Rule 27.03 does not apply to Coles’ request, it is not necessary for us to
reach this alternative argument.
8
       Justice Page argues that under our holding “there is in effect no remedy for the
imposition of an illegal sentence.” If Coles’ sentence were, in fact, illegal, a point we do
not decide today, the postconviction statute provides a remedy. Instead of waiting nearly
9 years to bring his postconviction petition, Coles could have brought a timely
postconviction petition challenging his sentence within 2 years of his conviction. See
Minn. Stat. § 590.01, subd. 4(a). Moreover, the time-bar in the postconviction statute has
several exceptions that may allow a court to hear a challenge to a sentence that implicates
a plea agreement and conviction in an appropriate case. See Minn. Stat. §590.01,
subd. 4(b). Coles does not contend that he has satisfied any of these exceptions. In
addition, Minn. Stat. § 590.01 is the exclusive remedy for challenging the validity of a
conviction “unless it is inadequate or ineffective.” Minn. Stat. § 590.01, subd. 2 (2014).
Coles, however, does not argue that that the postconviction statute would not be adequate
or effective and as such we do not address this provision. See Johnson, 801 N.W.2d at
176 (stating that because the defendant had not argued that a petition for postconviction
relief would be inadequate or ineffective, his exclusive remedy was a petition for
postconviction relief, not a Rule 27.03 motion).



                                            12
                                       DISSENT

PAGE, Justice (dissenting).

       “Curiouser and curiouser!” Lewis Carroll, Alice’s Adventures in Wonderland

(1865), reprinted in The Annotated Alice 35 (Martin Gardner ed., Bramhall House 1960).

The result reached by the court and the reasoning behind that result are flawed in a way

that brings to mind Alice’s exclamation. The court holds that Coles’ motion to correct

his sentence “is properly viewed as a petition for postconviction relief under Minn. Stat.

§ 590.01, not as a motion to correct a sentence under Rule 27.03.” This holding rests on

the court’s unsupported conclusion that the “challenge to his sentence implicates” 1 his

conviction. Even though it is clear from Coles’ motion that he is not challenging his

conviction, the court arrives at its conclusion by ignoring the fact that a mere change in

Coles’ sentence does not of necessity require the sentencing court to take any action with

respect to Coles’ conviction. With apologies to Alice, “Oh dear, what nonsense [the

court is] talking!” Carroll, supra at 36.

       Minnesota Rule of Criminal Procedure 27.03, subdivision 9, provides that a “court

may at any time correct a sentence not authorized by law” (emphasis added), provided

that the court “does not increase the period of confinement.” Under the plain language of

Rule 27.03, a defendant may not challenge his conviction, and Coles has not sought to do

so in this case. Johnson v. State, 801 N.W.2d 173, 176 (Minn. 2011). While it is true


1
       Implicate means “[t]o be involved or affected.” Black’s Law Dictionary 770 (8th
ed. 2004).



                                            D-1
that if Coles’ sentence is corrected the State may choose to seek withdrawal from the plea

agreement, the State’s act of seeking to withdraw, if taken, does not flow either directly

or necessarily from the correction of Coles’ sentence. Indeed, the correction of Coles’

sentence by itself will not alter his conviction. If his sentence is corrected, Coles would

still stand convicted of second-degree criminal sexual conduct and first-degree

aggravated robbery. It is only an independent act by the State seeking withdrawal from

the plea agreement that could possibly implicate Coles’ conviction. In this case, whether

the State would seek to withdraw from the plea agreement is purely speculative.

Interestingly, even if the State were to move to withdraw from the plea agreement, which

at this point it has not, Coles’ conviction would not be affected unless and until the

district court, in exercising its discretion, granted the State such relief. See State v. Lewis,

656 N.W.2d 535, 539 (Minn. 2003) (“[W]here the district court finds no compelling or

substantial circumstances supporting an upward departure in the sentence that was agreed

upon in a plea agreement, it may consider motions to vacate the conviction and the plea

agreement.” (emphasis added)); see also id. (“We agree . . . that the district court should

be free to consider the effect that changes in the sentence have on the entire plea

agreement.” (emphasis added)).

       While the court relies on Johnson, 801 N.W.2d 173, this is a very different case

from Johnson. In Johnson, we held that the defendant’s Rule 27.03 motion should have

been brought as a petition for postconviction relief under Minn. Stat. § 590.01 (2014),

because the motion challenged his conviction. 801 N.W.2d at 176. Unlike here, the




                                             D-2
defendant in Johnson not only sought a corrected sentence, but also directly challenged

the validity of his guilty plea, and thus his conviction. Id. at 175. Because the district

court granted the defendant’s request for a corrected sentence, the only issues on appeal

in Johnson related to Johnson’s challenge to his conviction. Id. As noted earlier, here

Coles only seeks correction of his sentence and no issues related to his conviction are

properly before us. On that basis, I conclude that Coles’ motion does not implicate his

conviction and was properly brought under Rule 27.03.

       The court’s reasoning to the contrary rests on two faulty assumptions. First, the

court assumes that in every case the State will necessarily lose the benefits of its

bargained-for plea agreement if a defendant is permitted to bring a motion to correct his

or her sentence under Rule 27.03, and second, that even if the State loses some of the

benefits of its bargain it will, in every case, reflexively seek to withdraw from the plea

agreement. In this case, the court asserts that “the parties made it clear that in this

particular plea agreement, the sentence with an upward departure was a crucial term.”

The court also asserts that the State “would lose the benefit of almost 3 years of his

[conditional] release term” if Coles’ sentence was corrected. While the court’s assertions

may be accurate, the facts of this case should not dictate the outcome of all cases.

       In analyzing the facts of this case, the court ignores three crucial points. 2 First,

because Coles’ sentence is not authorized by law, the State, on the record before us, was


2
      While I go into the facts of this case to demonstrate that the court’s statements are
unsupported, by no means do I suggest that these facts change the plain meaning of
                                                      (Footnote continued on next page.)


                                            D-3
not entitled when it entered into the plea agreement, and is not entitled now, to the benefit

of the upward sentencing departure. A sentence that is unauthorized by law is an illegal

sentence. Therefore, it is difficult to understand how the State could actually “lose” a

benefit if Coles’ sentence is corrected to comply with the requirements of the sentencing

guidelines. It is also worth noting that, if Coles’ sentence is unauthorized by law, the

State would not “lose” anything here that would not be lost as a result of a timely petition

for postconviction relief under Minn. Stat. § 590.01, subd. 1. If Coles’ sentence had been

corrected pursuant to a timely postconviction petition, the State would have received

much less benefit from its bargain than it actually has received given that Coles has

served all of the prison time required by the plea agreement and a significant portion of

the supervised and conditional release periods. Even if his sentence is corrected, Coles’

time served cannot be reduced.

       Second, given the facts of this case, the court ignores the substantial benefits that

the State has already received from this illegal sentence, which will not be lost to the

State if Coles’ sentence is corrected. Regardless of whether Coles’ sentence is corrected,

the State will retain the vast majority of the sentence-related benefits it received from the

plea agreement. In addition to the prison sentence, supervised release, and conditional

release time already served, the State has benefited from not having to prove Coles’ guilt

beyond a reasonable doubt and not having to face an uncertain outcome at trial.


(Footnote continued from previous page.)
Minn. R. Crim. P. 27.03, subd. 9—that an illegal sentence may be corrected “at any
time.”



                                            D-4
Additionally, correction of Coles’ sentence will not change Coles’ criminal history score

going forward or the fact that Coles has a felony conviction. 3

       Finally, the court ignores the fact that there is no guarantee that the State will in

fact lose any sentence-related benefit if Coles’ illegal sentence is allowed to be corrected

under Rule 27.03. A corrected sentence will not always mean a reduced sentence. For

example, on remand, in the context of Coles’ plea agreement, there is nothing to preclude

the district court from allowing the State to make the case that there are other substantial

and compelling circumstances justifying an upward departure. If the State successfully

made that case, Coles’ sentence would not need to be reduced.

       It is true that the State might seek to have Coles’ conviction vacated for the

reasons articulated by the court if Coles’ sentence was in fact reduced. But it is also true

that there are any number of reasons why the State enters into plea agreements and why

the State, in this case and in general, might rationally choose not to seek to vacate a plea

agreement even if the defendant’s sentence is reduced. The court, however, creates a rule

that presumes that in every case involving a plea bargain the State will seek to and be

entitled to withdraw from the plea agreement. That blanket rule disregards the various

considerations that the State would take into account in deciding whether to seek

withdrawal. We should not be making decisions based on speculation as to how the


3
        Nor would a determination that Coles’ sentence was illegal entitle him to
compensation from the State. See Minn. Stat. § 611.362, subd. 1 (2014) (explaining that
a person must receive “an order under section 590.11 determining that the person is
entitled to compensation based on exoneration” (emphasis added)).



                                            D-5
parties may proceed on remand or how the district court will rule. Because the State’s

decision to withdraw from a plea agreement is in fact an independent act that does not

flow either directly or necessarily from permitting a defendant to challenge his or her

illegal sentence under Rule 27.03, 4 it is improper for our court to decide in advance in all

cases for all time that every challenge to an illegal sentence affects the underlying

conviction.

       Because an unlawful sentence may, under Rule 27.03, be corrected at any time,

Coles’ motion to correct his sentence is not time barred. The only question remaining is

whether Coles is entitled to have his sentence corrected because it is illegal. The answer

to that question is yes.

       The sentence ranges set forth in the Minnesota Sentencing Guidelines “are

presumed to be appropriate” and a departure from the presumptive sentence must be

supported by “substantial and compelling circumstances.” Minn. Sent. Guidelines II.D

(2003). As a general rule, the maximum upward durational departure that can be justified

by aggravating circumstances is double the presumptive sentence.            State v. Evans,

311 N.W.2d 481, 483 (Minn. 1981). Only in the “extremely rare” cases that present

“severe aggravating circumstances” may the sentencing court impose a greater-than-




4
       I acknowledge that the State may have difficulty in reconvicting a defendant if the
defendant’s sentence is corrected many years later under Rule 27.03 and the State would
otherwise desire to withdraw from the plea agreement. The answer is not, however, to
ignore the text of the rule, which permits courts to correct an illegal sentence “at any
time,” Minn. R. Crim. P. 27.03, subd. 9, but instead to formally change the rule.



                                            D-6
double upward departure from the presumptive sentence. State v. Spain, 590 N.W.2d 85,

89 (Minn. 1999); State v. Mortland, 399 N.W.2d 92, 94 & n.1 (Minn. 1987).

      In this case, Coles’ sentence of commitment to the Commissioner of Corrections

for 48 months for second-degree criminal sexual conduct, Minn. Stat. § 609.343,

subd. 1(a) (2014), is a greater-than-double upward durational departure from the

presumptive stayed sentence of 21 months. The record clearly indicates that the reasons

relied upon by the district court to justify this departure—namely, the agreement between

the parties and the age difference between Coles and the victim—are improper. See State

v. Misquadace, 644 N.W.2d 65, 72 (Minn. 2002) (holding that a district court may not

rely on the plea agreement alone as a basis for an upward departure); State v. Peterson,

329 N.W.2d 58, 60 (Minn. 1983) (concluding that facts “considered by the legislature in

determining the severity of the offense” are improper grounds for departure); see also

Minn. Stat. § 609.343, subd. 1(a) (specifying that a person is guilty of criminal sexual

conduct in the second degree if “the complainant is under 13 years of age and the actor is

more than 36 months older than the complainant”).         The State contends that other

information in the record supports the upward departure, specifically the fact that the

9-year-old witnessed the criminal sexual conduct and Coles attempted to bribe her to

remain quiet. Although the commission of an offense in the presence of a child can

provide a valid basis for an upward departure, State v. Profit, 323 N.W.2d 34, 36 (Minn.

1982), the district court made no finding that the presence of the 9-year-old witness in

this case made Coles’ conduct sufficiently more severe than the typical second-degree




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criminal sexual conduct case to justify a greater-than-double durational departure. Such a

finding is more appropriately made by the district court than our court. Therefore, I

would remand to the district court for resentencing.

       Because Coles’ sentence is a durational departure that is based on improper

reasons, it is a sentence unauthorized by law that must be corrected under Minn. R. Crim.

P. 27.03, subd. 9. Cf. State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007) (holding

that a sentence based on an incorrect criminal history score is an illegal sentence that is

correctable “at any time” under Minn. R. Crim. P. 27.03, subd. 9); Misquadace,

644 N.W.2d at 72 (holding that “all departures from the Minnesota Sentencing

Guidelines must be supported by substantial and compelling circumstances”). Under the

court’s decision, however, for the first time in our court’s history, we hold that there is in

effect no remedy for the imposition of an illegal sentence. This result cannot stand. It

contradicts our authority to correct an illegal sentence “at any time” under Rule 27.03,

subdivision 9, runs counter to the Legislature’s “stated public policy of achieving

uniformity in sentencing” by way of the sentencing guidelines, Maurstad, 733 N.W.2d at

146, and is inconsistent with our obligation to do justice.

       Further, this result does little to discourage the State, which has the power to

structure a plea agreement how it wishes, from bargaining for plea agreements that

impose sentences not authorized by law. 5 Interestingly, had Coles been convicted after


5
       It should also be noted that the sentencing court has some culpability here in that it
accepted Coles’ plea and imposed the agreed-upon sentence, which as imposed was
                                                        (Footnote continued on next page.)


                                            D-8
trial and given an illegal sentence, his sentence would be correctable under Rule 27.03 at

any time without regard to his conviction. But, under today’s ruling, because Coles

entered into a plea agreement, the same illegal sentence cannot be challenged under

Rule 27.03 and cannot and will not be corrected. Such a result, and the reasoning behind

that result, is not supported by logic, the text of the rule, our precedent, or, as noted

above, our obligation to do justice.

       For these reasons, I respectfully dissent.




(Footnote continued from previous page.)
clearly unauthorized by law. There needs to be incentive for not only the State but also
trial courts to take care that sentences unauthorized by law are not imposed on defendants
who enter into plea agreements. That the defendant agrees to and benefits from such a
sentence is of no moment.



                                            D-9
                                      DISSENT

STRAS, Justice (dissenting).

       Because the parties do not present a separation-of-powers question and the plain

language of Minn. R. Crim. P. 27.03, subd. 9, fully resolves the legal issue in this case, I

respectfully dissent.




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