                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A14-0906

Court of Appeals                                                             Gildea, C.J.

Willie Edd Reynolds,

                      Respondent,

vs.                                                            Filed: December 7, 2016
                                                              Office of Appellate Courts
State of Minnesota,

                      Appellant.

                              ________________________

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant,
State Public Defender, Saint Paul, Minnesota, for respondent.

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota, for appellant.

                              ________________________


                                      SYLLABUS

      1.     The imposition of a 10-year conditional-release term in violation of Blakely

v. Washington, 542 U.S. 296 (2004), is a sentence not authorized by law under Minn. R.

Crim. P. 27.03, subd. 9.

      2.     Because applying the 2-year limitations period in Minn. Stat. § 590.01,

subd. 4 (2014), to a motion brought under Minn. R. Crim. P. 27.03, subd. 9, violates the



                                           1
separation of powers, an offender who contends under Rule 27.03, subdivision 9 that his

sentence was not authorized by law is not required to bring such a challenge in a

postconviction petition.

       Affirmed.

                                       OPINION

GILDEA, Chief Justice.

       The question presented in this case is whether an offender who contends that his

sentence violates Blakely v. Washington, 542 U.S. 296 (2004), must bring that challenge

before the expiration of the 2-year limitations period in the postconviction statute, Minn.

Stat. § 590.01, subd. 4 (2014). Respondent Willie Edd Reynolds challenged the imposition

of a 10-year conditional-release term as part of his sentence under Minn. R. Crim. P. 27.03,

subd. 9. Reynolds claimed that the conditional-release term was not authorized by law

because it was imposed without a jury finding or an admission that he was a risk-level-III

offender at the time he committed his offense. The district court treated this challenge as

a petition for postconviction relief and held that the claim was untimely under the

limitations period in Minn. Stat. § 590.01, subd. 4. The court of appeals reversed, vacated

Reynolds’s conditional-release term, and remanded to the district court. Because we

conclude that Reynolds’s challenge was properly brought under Minn. R. Crim. P. 27.03,

subd. 9, and that applying the 2-year limitations period in the postconviction statute, Minn.

Stat. § 590.01, subd. 4, to a motion brought under Minn. R. Crim. P. 27.03, subd. 9, would

violate the separation of powers, we affirm.




                                               2
       On September 23, 2008, Reynolds pleaded guilty to failing to register as a predatory

offender. The district court sentenced Reynolds to 1 year and 1 day in prison. On

January 12, 2009, acting sua sponte, the district court modified Reynolds’s sentence to

include a 10-year conditional-release term. The record does not reflect the basis for the

conditional-release term, but Minn. Stat. § 243.166, subd. 5a (2014), mandates a 10-year

conditional-release term for any person convicted of failing to register as a predatory

offender if the person “was assigned to risk level III under section 244.052” at the time of

the offense.

       More than 4 years later, Reynolds brought a motion under Minn. R. Crim. P. 27.03,

subd. 9, to correct his sentence. Reynolds argued that the conditional-release term was not

supported by a jury finding or his admission to being a risk-level-III offender at the time

of the offense, as required by Blakely, 542 U.S. 296. The district court treated Reynolds’s

motion as a petition for postconviction relief under Minn. Stat. § 590.01 (2014). The court

then determined that the 2-year limitations period in Minn. Stat. § 590.01, subd. 4, required

the dismissal of Reynolds’s claim.

       The court of appeals reversed. The court held that Reynolds’s challenge to his

conditional-release term fell within the scope of Rule 27.03, subdivision 9, and therefore,

it could be brought at any time. Reynolds v. State, 874 N.W.2d 257, 264 (Minn. App.

2016). Applying State v. Her, 862 N.W.2d 692, 696 (Minn. 2015), the court concluded

that the imposition of the conditional-release term violated Reynolds’s Sixth Amendment

right to a jury trial. Reynolds, 874 N.W.2d at 263. The court vacated Reynolds’s




                                             3
conditional-release term and remanded to the district court. Id. at 264. We granted the

State’s petition for review.

       On appeal, the State makes two arguments. First, the State argues that Reynolds’s

challenge is outside the scope of Minn. R. Crim. P. 27.03, subd. 9, because his sentence is

“authorized by law.” Second, the State argues that even if Reynolds’s motion falls within

the scope of Rule 27.03, subdivision 9, the exclusivity provision in the postconviction

statute, Minn. Stat. § 590.01, subd. 2, nevertheless requires Reynolds to challenge his

sentence in a postconviction petition. As a result, Reynolds’s challenge would be subject

to, and untimely filed under, the 2-year limitations period in the postconviction statute,

Minn. Stat. § 590.01, subd. 4.1 We address each argument in turn.

                                              I.

       We turn first to the State’s argument that Reynolds’s motion to correct his sentence

falls outside the scope of Minn. R. Crim. P. 27.03, subd. 9. Under this rule, “[t]he court

may at any time correct a sentence not authorized by law.” Id. The interpretation of the

Minnesota Rules of Criminal Procedure is a question we review de novo.2 Ford v. State,


1
       The State does not dispute the underlying merits of Reynolds’s challenge to his
conditional-release term. More specifically, the State has not contested the court of
appeals’ conclusion that based on Her, 862 N.W.2d at 696, Reynolds has a right to have a
jury determine whether he was a risk-level-III offender at the time he failed to register, nor
has the State argued that Her does not apply to Reynolds because his conviction was final
before Her was decided.
2
       Even though Reynolds brought his challenge under Rule 27.03, the district court
treated it as a petition for postconviction relief. The State asks us 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 Minn. Stat.


                                              4
690 N.W.2d 706, 712 (Minn. 2005). In interpreting Rule 27.03, subdivision 9, we have

said that “[f]or a sentence to be unauthorized, it must be contrary to law or applicable

statutes.” State v. Schnagl, 859 N.W.2d 297, 301 (Minn. 2015).

       The State contends that the phrase “not authorized by law” is a term of art that

permits challenges only to facially invalid sentences that a court could never impose on the

offender because they violate a statute or constitutional provision, such as a sentence that

exceeds the statutory-maximum sentence for the offense. The State argues that Reynolds’s

10-year conditional-release term is not facially invalid because the district court could have

imposed the conditional-release term if it had followed the proper procedures by either

obtaining Reynolds’s admission that he was a risk-level-III offender at the time he failed

to register or submitting the issue to a sentencing jury. For his part, Reynolds argues that

his challenge falls within the scope of Rule 27.03, subdivision 9. We agree with Reynolds.

       The imposition of a 10-year conditional-release term without a jury’s finding or a

defendant’s admission that he was a risk-level-III offender at the time of the offense is a

sentence that is not authorized by law. The Sixth Amendment, as incorporated by the Due

Process Clause of the Fourteenth Amendment, limits a state court’s authority to sentence a

defendant. Her, 862 N.W.2d at 695 (citing Blakely, 542 U.S. at 306). A court exceeds its



§ 590.01. We decline to decide this issue here. Under either a de novo standard of review
or a more deferential abuse of discretion standard, the district court, for the reasons
explained below, erred in treating Reynolds’s motion as a petition for postconviction relief.
See Wayne v. State, 870 N.W.2d 389, 391 n.2 (Minn. 2015) (“We decline the State’s
invitation to adopt a definitive standard of review because, regardless of the amount of
deference, . . . we would conclude that the court did not err when it treated Wayne’s motion
as a petition for postconviction relief.”).

                                              5
authority when it “imposes a sentence ‘that the jury’s verdict alone does not allow.’ ” Id.

(quoting Blakely, 542 U.S. at 304). As we explained in Her, a court simply lacks authority

after Blakely to impose a 10-year term of conditional release on a defendant convicted of

failing to register as a predatory offender without the required jury finding or admission by

the defendant that the defendant is a risk-level-III offender. Her, 862 N.W.2d at 695.

       In this case, a jury did not determine that Reynolds was a risk-level-III offender at

the time he failed to register. And Reynolds did not admit at his guilty plea hearing that he

was a risk-level-III offender at the time he committed the offense. Because the Sixth

Amendment requires a jury finding or an admission by the defendant before a court may

impose a 10-year conditional-release term, see Her, 862 N.W.2d at 695, and neither

occurred here, Reynolds’s 10-year conditional-release term was not authorized by law.

Accordingly, we hold that Reynolds properly brought his challenge under Rule 27.03,

subd. 9.3

                                             II.

       Even though we have concluded that Reynolds’s challenge falls within the scope of

Rule 27.03, subdivision 9, the State still contends that the challenge is subject to the

limitations period in the postconviction statute. Reynolds argues that the limitations period

does not apply to motions brought under Rule 27.03, subdivision 9. The parties’ arguments




3
      The parties discuss earlier versions of Rule 27.03, subdivision 9, and an advisory
committee comment to the rule. Because there is no ambiguity in the rule, it is not
necessary for us to look beyond the rule’s text.

                                             6
present an issue of statutory interpretation that we review de novo. State v. Coles,

862 N.W.2d 477, 479 (Minn. 2015).

       In arguing that Reynolds’s challenge is subject to the postconviction statute,

including its 2-year limitations period, the State relies on Minn. Stat. § 590.01, subd. 2.

This provision states that the postconviction “remedy takes the place of any other . . .

remedies which may have been available for challenging [a] . . . sentence . . . and must be

used exclusively in place of them unless it is inadequate or ineffective to test the legality

of the conviction, sentence or other disposition.”4 Id. The State argues that this exclusivity

provision prevents a defendant from using Minn. R. Crim. P. 27.03, subd. 9, to collaterally

challenge a sentence and mandates that such a challenge be brought in a postconviction

petition. According to the State, a defendant’s collateral challenge to a sentence is therefore

subject to the 2-year limitations period in Minn. Stat. § 590.01, subd. 4.

       Reynolds disagrees and maintains that the exclusivity provision does not preclude

his Minn. R. Crim. P. 27.03, subd. 9 motion. Specifically, Reynolds points out that Minn.

Stat. § 590.01, subd. 2, excludes only remedies that “may have been” available at the time

the statute was enacted. Because the term “may have been” is past tense, Reynolds argues



4
       In urging us to hold that his motion is not subject to the postconviction statute,
Reynolds argues that the remedy under the postconviction statute is not adequate in this
case because the limitations period had expired by the time he brought his motion.
Reynolds raises this argument for the first time on appeal to our court. Accordingly, we
decline to address it. State v. Williams, 794 N.W.2d 867, 874 (Minn. 2011) (“[The court]
ordinarily do[es] not consider issues raised for the first time on appeal, even when those
issues are constitutional questions of criminal procedure or are challenges to the
constitutionality of a statute.” (citing State v. Henderson, 706 N.W.2d 758, 759 (Minn.
2005))).

                                              7
that Minn. Stat. § 590.01, subd. 2, excludes only those remedies in existence at the time

the Legislature enacted the statute. Rule 27.03, subdivision 9, Reynolds notes, was

promulgated in 1975, after the Legislature enacted the postconviction statute in 1967.

Accordingly, Reynolds argues that the postconviction statute is not his exclusive remedy.

       Reynolds’s interpretation is contrary to the legislative directive in Minn. Stat.

§ 645.08(2) (2014), that “words used in the past or present tense include the future.” The

future tense of the phrase “may have been” is “may be.” The exclusivity provision in Minn.

Stat. § 590.01, subd. 2, therefore precludes the use of alternate remedies that were available

at the time the Legislature enacted the statute and those that became available thereafter.

Thus, the fact that we adopted Minn. R. Crim. P. 27.03, subd. 9, after the Legislature

enacted section 590.01 does not, as Reynolds argues, render the exclusivity provision

inapplicable. As the State suggests, the plain language of Minn. Stat. § 590.01, subd. 2,

requires that a collateral challenge to a sentence be brought within the parameters of the

postconviction statute, including the 2-year limitations period. See Minn. Stat. § 590.01,

subd. 4(a).

       Applying the 2-year limitations period to Reynolds’s challenge, however, leads to a

conflict between the statute and the rule. Under the rule, the court may correct a sentence

unauthorized by law at “any time,” see Minn. R. Crim. P. 27.03, subd. 9, but challenges to

sentences brought under the postconviction statute must be brought within 2 years of a

conviction or disposition of a direct appeal, see Minn. Stat. § 590.01, subd. 4(a). This

conflict between the statute and the rule generates a possible separation of powers issue

under the Minnesota Constitution.       See Minn. Const. art. III, § 1 (“The powers of


                                              8
government shall be divided into three distinct departments: legislative, executive and

judicial. No person or persons belonging to or constituting one of these departments shall

exercise any of the powers properly belonging to either of the others . . . .”).

       Whether a statute is unconstitutional under separation of powers principles is an

issue we review de novo. State v. Losh, 721 N.W.2d 886, 891 (Minn. 2006). We exercise

great restraint when considering the constitutionality of statutes, particularly in the context

of separation of powers issues. Id. Nonetheless, “ ‘courts have the power to determine

what is judicial and what is legislative; and . . . [we] must not hesitate to preserve what is

essentially a judicial function.’ ” Id. (quoting State v. McCoy, 682 N.W.2d 153, 160 n.7

(Minn. 2004)).

       In order to “determin[e] whether a statute impermissibly infringes on a judicial

function, we examine the nature of the statute. The judicial branch governs procedural

matters, while the creation of substantive law is a legislative function.” State v. Lemmer,

736 N.W.2d 650, 657 (Minn. 2007); see also State v. Lindsey, 632 N.W.2d 652, 658 (Minn.

2001) (“This court has ‘primary responsibility under the separation of powers doctrine

for . . . matters of trial and appellate procedure.’ ” (quoting State v. Olson, 482 N.W.2d

212, 215 (Minn. 1992))). Thus, if a statute attempts to restrict the use of a court procedural

rule, the statute could impermissibly infringe on a judicial function and be unconstitutional.

The central question then in addressing Reynolds’s separation-of-powers argument is

whether the correction of a sentence is procedural or substantive.

       A procedural rule “ ‘neither creates a new cause of action nor deprives [a] defendant

of any defense on the merits.’ ” Losh, 721 N.W.2d at 891 (quoting State v. Johnson,


                                              9
514 N.W.2d 551, 555 (Minn. 1994)). But a rule is substantive, and not procedural, when

it “ ‘creates, defines and regulates rights.’ ” Johnson, 514 N.W.2d at 554 (quoting Stern v.

Dill, 442 N.W.2d 322, 324 (Minn. 1978)). We have explained that “while Minnesota’s

Constitution grants us inherent authority over the procedures within Minnesota’s courts,

this authority does not extend to the power to determine when a person may bring a cause

of action to Minnesota’s courts.” Sanchez v. State, 816 N.W.2d 550, 566 (Minn. 2012)

(internal citation omitted) (characterizing Minn. Stat. § 590.01 as a “cause of action” and

upholding the limitations period in Minn. Stat. § 590.01, subd. 4, as a restriction on a

substantive right created by the Legislature). In Sanchez, we recognized that the limitations

period in the postconviction statute is substantive and that application of the limitations

period to a postconviction petition challenging a conviction does not violate separation of

powers principles even though it may prevent a defendant from challenging his conviction

in court. 816 N.W.2d at 566.

       In this case, Reynolds is not challenging his conviction; he is challenging his

sentence. Although the Legislature has the power to fix the limits of punishment for a

crime, “the imposition of a sentence in a particular case within those limits is a judicial

function.”   State v. Misquadace, 644 N.W.2d 65, 68 (Minn. 2002).                 Rule 27.03,

subdivision 9, creates a procedure to be used within an existing criminal case for the district

court to correct a sentence that is not authorized by law. See State v. Fields, 416 N.W.2d

734, 736 (Minn. 1987) (“We believe that Minn. R. Crim. P. 27.03, subd. 9, allows the




                                              10
defendant to challenge the [sentencing] departure by a simple motion at the time of the

revocation hearing.”).5

       Rule 27.03, subdivision 9, does not create a new cause of action or deny a defendant

a defense on the merits. The rule is procedural, and the process it creates facilitates the

performance of a judicial function: sentencing. To the extent that the limitations period in

Minn. Stat. § 590.01, subd. 4, interferes with the process laid out in the rule, the statute

violates the separation of powers. See Losh, 721 N.W.2d at 891 (determining that a statute

restricting the time period in which a defendant could appeal a sentence was procedural

and in violation of the separation of powers); Johnson, 514 N.W.2d at 555-56 (holding that

a statute that regulated the certification of a misdemeanor as a petty misdemeanor was

procedural).

       This conclusion is consistent with our holding in Losh. There, we considered

whether statutory time limits on sentencing appeals violated the separation of powers when

the rules of criminal procedure allowed a longer appeal period than a statute. 721 N.W.2d



5
        Even before the adoption of Minn. R. Crim. P. 27.03, subd. 9, district courts had the
power to correct illegal sentences. State v. Hockensmith, 417 N.W.2d 630, 632 (Minn.
1988) (stating in a discussion of a district court’s authority prior to the promulgation of the
criminal rules that “[a]n illegal sentence could be corrected at any time but a lawful
sentence could be modified in the trial court’s discretion only during the duration of the
term of court”); see also United States v. Bradford, 194 F.2d 197, 200 (2d Cir. 1952) (“At
common law there were always exceptions to the doctrine that a court lost jurisdiction over
its judgments, civil or criminal, with the expiration of the term at which they were entered.
These exceptions included clerical mistakes and a sentence which the judgment did not
support.”); Hammers v. United States, 279 F. 265, 266 (5th Cir. 1922) (“Where there is a
conviction, accompanied by a void sentence, the court’s jurisdiction of the case for the
purpose of imposing a lawful sentence is not lost by the expiration of the term at which the
void sentence was imposed.”).

                                              11
at 890-91. We determined that the statute setting a time limit for filing an appeal was

procedural and violated the separation of powers. Id. at 892. Although the district court’s

correction of a sentence is not an appeal, both this case and Losh involve the timeframe

under which a court may exercise its authority to correct a sentence, without requiring the

filing of a new collateral proceeding. Cf. Fields, 416 N.W.2d at 736 (describing motions

under Rule 27.03, subdivision 9, as less formal than those brought under Minn. Stat.

§ 590.01). And just as the statute at issue in Losh could not impinge on the performance

of a judicial function in the face of a contrary rule of procedure, the postconviction statute’s

limitations period cannot restrict the performance of the judicial function in this case.

       Based on this analysis, interpreting the exclusivity provision in Minn. Stat. § 590.01,

subd. 2, to require application of the postconviction statute’s limitations period to

Reynolds’s claim unconstitutionally encroaches on the judicial sentencing power. Even

with these constitutional deficiencies, however, we may accept the limitations period in the

postconviction statute as a matter of comity. See Losh, 721 N.W.2d at 892. We decline to

do so. We previously recognized the importance of Minn. R. Crim. P. 27.03, subd. 9, and

refused to acquiesce to a statute as a matter of comity that “could limit a defendant’s ability

to obtain relief from an illegal sentence under Minn. R. Crim. P. 27.03, subd. 9.” See Losh,

721 N.W.2d at 892. We reach the same conclusion in this case.

       In urging us to reach the opposite conclusion, the State contends that refusing to

recognize the exclusivity provision of Minn. Stat. § 590.01, subd. 2, and enforce the 2-year

limitations period, will overrule our retroactivity jurisprudence and lead to many more

motions for sentencing relief. Our holding, however, has no effect on our retroactivity


                                              12
jurisprudence. As we noted in Schnagl, for a sentence to be eligible for correction under

Rule 27.03, subdivision 9, the sentence must have been illegal at the time it was imposed.

859 N.W.2d at 301. Under our retroactivity jurisprudence, new rules of constitutional

criminal procedure generally do not apply to cases that became final before the rule was

announced. See Campos v. State, 816 N.W.2d 480, 488 (Minn. 2012). If a new sentencing

rule does not apply retroactively, then any sentence in contravention of the new rule would

not give rise to a valid challenge under Rule 27.03, subdivision 9.

       For the foregoing reasons, we hold 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. As a result, Reynolds did not need to challenge his conditional-

release term in a postconviction petition, and the 2-year limitations period in Minn. Stat.

§ 590.01, subd. 4, does not apply to Reynolds’s claim. Reynolds was therefore entitled to

relief under Minn. R. Crim. P. 27.03, subd. 9.

       Affirmed.




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