                         This opinion will be unpublished and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
                                     A15-1990

                              Candyce L. Brown, petitioner,
                                      Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                  Filed August 1, 2016
                                        Affirmed
                                   Muehlberg, Judge

                             Ramsey County District Court
                     File Nos. 62-K1-96-003709, 62-KX-96-003742

Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

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

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

      Considered and decided by Schellhas, Presiding Judge; Reyes, Judge; and

Muehlberg, Judge.





 Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by
appointment pursuant to Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

MUEHLBERG, Judge

       Appellant Candyce Brown challenges the denial of her petition for postconviction

relief, in which she asked the district court to vacate its order correcting clerical errors in

her file. She argues her two 1996 terroristic-threats convictions were properly deemed

misdemeanors and also that, even if changes to the register of actions were initially

erroneous, it was improper to order a correction because she had developed a “crystallized

expectation of finality” in her sentences.         Because her convictions are properly

characterized as felonies, and because the district court has broad authority to correct

clerical errors, we affirm.

                                           FACTS

       In January 1997, Brown pleaded guilty to two counts of terroristic threats pursuant

to Minn. Stat. § 609.713, subd. 1 (1996), for two separate incidents that occurred in

November 1996.        Brown was sentenced to 15 and 18 months of imprisonment,

respectively, for the two counts. The sentences were to run concurrently. The prison

sentences were stayed, and Brown was ordered to serve probation for a period of up to five

years. The sentences were stayed pursuant to a condition that Brown serve 73 days in

confinement in a Volunteers of America facility. Brown was released from probation in

October 2000.

       In 2011, Brown sought expungement of her criminal records pertaining to the two

1996 terroristic-threats cases. Her expungement petitions were denied.




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       Through the expungement proceedings, the district court became aware of clerical

errors in the register of actions by which Brown’s convictions were changed to reflect

misdemeanors rather than felonies. When the clerical errors occurred is not clear, but

Brown’s brief states that it was “after she completed her term of probation” in 2000.

       The district court issued an order to correct the clerical errors on January 9, 2014,

to accurately reflect that the convictions were felonies.             Brown petitioned for

postconviction relief, arguing her convictions were properly deemed misdemeanors and

asking the court to vacate the order correcting the clerical error. The district court denied

her postconviction petition without a hearing.

       Brown now appeals, seeking reversal of the district court’s order denying

postconviction relief and asking this court to vacate the district court’s order correcting the

clerical mistake. Brown’s attorney does not dispute that the convictions are properly

characterized as felonies, but instead argues that it was improper to order a correction

because Brown had developed a “crystallized expectation of finality” in the misdemeanor

characterization of her convictions. In her pro se supplemental brief, Brown again argues

that her convictions were properly deemed misdemeanors.

                                      DECISION

I.     Are the convictions properly characterized as felonies?

       Brown argues in her pro se postconviction petition and in her pro se supplemental

brief in this appeal that her convictions were properly deemed misdemeanors. Her claim

is misguided.




                                              3
       Minnesota statutes define a felony as “a crime for which a sentence of imprisonment

for more than one year may be imposed.” Minn. Stat. § 609.02, subd. 2 (1996); see also

Minn. Stat. § 609.02, subd. 2 (2014) (reflecting that the definition of “felony” is the same

now as it was at the time of Brown’s convictions). Minnesota statutes also provide that a

felony may be deemed a misdemeanor “if the imposition of the prison sentence is stayed,

the defendant is placed on probation, and the defendant is thereafter discharged without a

prison sentence.” Minn. Stat. § 609.13, subd. 1(2) (1996); see also Minn. Stat. § 609.13,

subd. 1(2) (2014) (reflecting that the definition of “felony” is the same now as it was at the

time of Brown’s convictions).

       The district court imposed sentences of 15 months and 18 months of imprisonment

for her terroristic-threats convictions. Although the execution of her prison sentences was

stayed, the imposition of those sentences was not stayed. See Minn. Sent. Guidelines

1.B.19 (2015) (discussing distinction between stay of execution and stay of imposition);

see also State v. Webber, 382 N.W.2d 567, 567-68 (Minn. App. 1986) (demonstrating that

a stay of imposition is distinct from a stay of execution). The Minnesota Supreme Court

has made clear that the fact a person was allowed to serve anything less than her full prison

sentence has no impact on the felonious character of the conviction. State v. Gorman, 546

N.W.2d 5, 7-8 (Minn. 1996). Whether a conviction is a felony is measured by the sentence

imposed. Id.

       We also note that Brown refers to the wrong statute in addressing her convictions.

Although she claims to have been convicted for violating Minn. Stat. § 609.713, subd. 3

(1996), she was actually convicted under subdivision 1 of that section for both terroristic-

                                              4
threats incidents. Compare Minn. Stat. § 609.713, subd. 1 (1996) (“Whoever threatens

. . . to commit any crime of violence with purpose to terrorize another . . . may be sentenced

to imprisonment for not more than five years . . . .”), with id., subd. 3 (“Whoever displays,

exhibits, brandishes, or otherwise employs a replica firearm or a BB gun in a threatening

manner, may be sentenced to imprisonment for not more than one year and one day . . . .”).

Her argument on this point is meritless as both subdivisions allow for felony-level

sentences and neither has changed in any impactful way since her convictions.

       Brown’s convictions were at all times properly characterized as felonies. If at any

time they were deemed misdemeanors, it was in error.

II.    Did the district court abuse its discretion in denying postconviction relief and
       declining to vacate its order correcting a clerical error?

       Through her attorney, Brown asserts she had a “crystallized expectation of finality

in her sentences,” and therefore the correction order violated her right to due process. In

making this argument she relies on State v. Calmes, 632 N.W.2d 641 (Minn. 2001). Brown

did not make this argument to the district court in her petition for postconviction relief.

Her crystallized-expectation claim can be rejected simply based on her failure to raise it to

the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing

court must generally consider only those issues that the record shows were presented and

considered by the trial court in deciding the matter before it.” (quotations omitted)).

       But Brown’s argument under Calmes also fails on its merits. Brown implicitly

argues the district court’s correction of the register of actions was an appealable judicial

act affecting her sentences. However, the district court’s action is properly characterized



                                              5
as a correction of a clerical error. The district court had undeniable authority to correct

such an error: “Clerical mistakes in a judgment, order, or in the record arising from

oversight or omission may be corrected by the court at any time, or after notice if ordered

by the court.” Minn. R. Crim. P. 27.03, subd. 10.

       In its order denying Brown’s petition for postconviction relief, the district court

identified the clerical errors now in dispute, stating, “This clerical entry was not

pronounced or authorized by [the district judge], and this entry was a clerical mistake.”

Brown has offered no evidence to challenge the district court’s conclusion that the changes

to the register of actions were clerical errors rather than judicial acts. The district court’s

determination that the changes were clerical errors is legally sound. See Wilson v. City of

Fergus Falls, 181 Minn. 329, 332, 232 N.W. 322, 323 (1930) (holding that clerical error

is one “which cannot reasonably be attributed to the exercise of judicial consideration or

discretion”); c.f. State v. Pflepsen, 590 N.W.2d 759, 768 n.4 (Minn. 1999) (citing Wilson

and holding that “district court’s decision not to order restitution” could not be corrected

as clerical error because it reflected district court’s discretionary decision).

       Because the changes to the register of actions were clerical errors, the district court

had the authority to make the correction at any time. See Minn. R. Crim. P. 27.03, subd.

10. The register of actions is part of the “official records of the clerk of the [d]istrict

[c]ourt.” State ex rel. Craig v. Tahash, 263 Minn. 158, 162, 116 N.W.2d 657, 660 (1962).

The register therefore is a part of the record, and the district court had authority to correct

clerical errors contained within it. The district court acted within its discretion both in




                                               6
correcting the clerical errors and in denying Brown’s petition for postconviction relief on

this basis.

       Finally, Brown’s claim can also be rejected because her only legal authority for this

argument, Calmes, is inapposite. In Calmes, the Minnesota Supreme Court defined a

limited constitutional constraint on a court’s authority to modify a sentence. 632 N.W.2d

at 647-49. The constraint identified in Calmes does not apply here because Brown has not

shown that her sentence was actually modified by the district court. For an unspecified

period of time, the register of actions showed that Brown’s convictions had been deemed

misdemeanors. But no judicial action or court order authorized that alteration, and no legal

authority supported it. Because Brown’s sentence was not actually modified, her claim

under Calmes that she was denied due process fails.

       Affirmed.




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