                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0906

                             Willie Edd Reynolds, petitioner,
                                       Appellant,

                                           vs.

                                   State of Minnesota,
                                      Respondent.

                                Filed January 25, 2016
                                Reversed and remanded
                                      Ross, Judge

                             Hennepin County District Court
                               File No. 27-CR-08-38331

Cathryn Middlebrook, Chief Appellate Public Defender, Kathryn J. Lockwood, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)


      Considered and decided by Ross, Presiding Judge; Hooten, Judge; and Smith, Judge.

                                    SYLLABUS

      A motion to correct a sentence under rule 27.03, subdivision 9, is a proper

mechanism for a convicted person to challenge the district court’s decision to amend his

sentence sua sponte by adding a statutorily required conditional-release term.
                                      OPINION

ROSS, Judge

       Willie Reynolds pleaded guilty to failure to register as a predatory offender. The

district court amended Reynolds’s sentence sua sponte three months after sentencing him,

adding a ten-year conditional-release term based on the court’s implicit finding that

Reynolds was a risk-level-III offender. Four years later Reynolds moved to vacate that term

of his sentence under Minnesota Rule of Criminal Procedure 27.03, subdivision 9. The

district court converted the rule 27.03 motion to a petition for postconviction relief and

denied it as time-barred under the postconviction statute. Because we conclude that

Reynolds could bring his sentencing challenge under rule 27.03 and that the judicial fact-

finding that supported the conditional-release term violated Reynolds’s Sixth Amendment

right to a jury fact-finding, we reverse and remand.

                                         FACTS

       In August 2008 Willie Reynolds was charged with failure to register as a predatory

offender in violation of Minnesota Statutes section 243.166, subdivision 5(a) (2006).

Reynolds pleaded guilty. The district court applied a downward durational departure based

on Reynolds’s willingness to take responsibility for his actions and sentenced him to a year

and one day in prison. But the district court did not impose any conditional-release term to

follow the incarceration. Three months after the sentencing, the district court—acting sua

sponte and without conducting a resentencing hearing—amended Reynolds’s sentence by

adding a ten-year conditional-release term under Minnesota Statutes section 243.166,

subdivision 5a (2006), apparently on the finding that Reynolds was a risk-level-III offender


                                             2
under Minnesota Statutes section 244.052 (2006) at the time Reynolds committed his

crime.

         Four years later, in October 2013, Reynolds moved the district court to correct his

sentence under criminal procedural rule 27.03, subdivision 9. He asked the district court to

vacate the conditional-release term because it was not supported by a jury’s finding that he

was a level-III offender and he had not waived his Blakely right to a jury determination of

this fact that led to the additional sentence term. The district court did not consider the

request as a motion under rule 27.03, however, deeming it better suited as a petition for

postconviction relief. The district court then held that Reynolds’s challenge is time-barred

under Minnesota Statutes section 590.01, subdivision 4(a) (2012). The district court

nonetheless considered the merits of Reynolds’s request, and it held that its imposition of

the conditional-release term without a jury finding of Reynolds’s offender level did not

implicate Reynolds’s Sixth Amendment rights under the rule announced in Blakely. It

reasoned that an offender’s risk-level status is akin to an offender’s prior conviction, and

caselaw establishes that a district court can determine on its own whether an offender has

incurred a sentence-enhancing prior conviction.

         Reynolds appeals.




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                                          ISSUES

I.     Was Reynolds’s motion to correct his sentence under criminal procedural rule
       27.03, subdivision 9, a proper mechanism for his Blakely challenge to the district
       court’s decision to amend his sentence and add a ten-year conditional-release term
       to his incarceration period?

II.    Did the district court violate Reynolds’s Sixth Amendment right to a jury under
       Blakely v. Washington by adding a conditional-release term to Reynolds’s prison
       sentence after relying on the court’s own finding that Reynolds was a risk-level-III
       offender?

III.   If the district court violated Reynolds’s Sixth Amendment right to a jury, what is
       the proper remedy?

                                        ANALYSIS

                                               I

       Reynolds argues that the district court erroneously denied his sentencing challenge

as time-barred. The district court treated Reynolds’s ostensible rule 27.03 motion as though

it were a petition for postconviction relief under Minnesota Statutes section 590.01 (2012).

It then held that the challenge is time-barred because Reynolds filed it more than four years

after his sentence and conviction became final—long after the deadline allowing the

statutory challenge. Reynolds’s argument requires us to interpret the rule, a task we

undertake de novo. State v. Martinez-Mendoza, 804 N.W.2d 1, 6 (Minn. 2011).

       The district court correctly observed that the manner in which Reynolds’s challenge

is framed (as a challenge under the statute or a challenge under the rule) is significant. This

is because a district court may not consider a statutory postconviction petition if it was

“filed more than two years after . . . the entry of judgment of conviction or sentence if no

direct appeal is filed.” Minn. Stat. § 590.01, subd. 4(a). In contrast, the criminal rule



                                              4
provides that a district court “may at any time correct a sentence not authorized by law.”

Minn. R. Crim. P. 27.03, subd. 9 (emphasis added). Because Reynolds filed his challenge

more than two years after the statute’s general deadline, his challenge might never be

decided on the merits if it rests on the statute rather than on the rule. We must therefore

answer whether Reynolds’s challenge can rest only on the statute rather than on the rule.

       The supreme court’s decision in State v. Her, 862 N.W.2d 692 (Minn. 2015), might

at first seem to answer the issue. The Her court considered the same substantive question

that Reynolds raises—whether the determination of a defendant’s status as a risk-level-III

offender is, under the Sixth Amendment, required to be found by a jury before the district

court can impose the ten-year, statutorily mandated conditional-release period. Id. at 694.

And the court considered the question based on the defendant’s motion to challenge his

sentence specifically under rule 27.03. Id. But even as it considered the challenge under

the rule, the Her court implicitly warned not to assume that it was necessarily approving

of rule 27.03 as the proper vehicle for the challenge. It expressly noted, “The State does

not challenge Her’s decision to bring his challenge through a Rule 27.03 motion.” Id. at

694 n.2. Whether the challenge can be brought under rule 27.03 therefore remains open.

       The answer depends on the nature of Reynolds’s challenge. We have held that the

two-year statutory time limit does not apply to or restrict motions “properly filed” under

rule 27.03. Vazquez v. State, 822 N.W.2d 313, 318 (Minn. App. 2012). And a motion is

properly filed under the rule if the offender challenges a sentence on the grounds that “the

sentence is contrary to an applicable statute or other applicable law.” Washington v. State,

845 N.W.2d 205, 213 (Minn. App. 2014); see also Vazquez, 822 N.W.2d at 318 (holding


                                             5
that a challenge to a sentence based on the district court’s incorrect calculation of the

offender’s criminal-history score was properly raised under rule 27.03); State v. Amundson,

828 N.W.2d 747, 751 (Minn. App. 2013) (holding the same for a challenge based on an

unauthorized upward departure at sentencing). The supreme court has held that a challenge

is not properly filed under rule 27.03 when it implicates more than simply the sentence and

instead effectively challenges the validity of the underlying conviction or plea agreement.

State v. Coles, 862 N.W.2d 477, 480–81 (Minn. 2015); see also Wayne v. State, 870

N.W.2d 389, 391–92 (Minn. 2015) (applying Coles and deeming the claim outside the rule

because a victory would have entitled the claimant to “a new trial, not a reduced sentence”).

       It is clear to us that Reynolds’s Blakely challenge does nothing to implicate his plea

or his conviction. He seeks only to remove a term of his sentence and he does so only on

the theory that he was unconstitutionally sentenced. Even if he prevails, his plea and

conviction are unaffected. Under this assessment, it appears that Reynolds properly brought

his challenge under the rule.

       The state urges us to focus closely on the language of the rule, and in particular the

rule’s permission for the court to correct a sentence that is “not authorized by law.” The

state argues that this language (“by law”) contemplates challenges only to sentences “for

which there was no legal authority.” The state maintains that Reynolds’s challenge does

not essentially claim that the district court imposed a sentence that is “not authorized,” but

that the court imposed a statutorily authorized sentence that resulted merely from an

allegedly unauthorized sentencing procedure. The state buttresses its textual argument with

language in Blakely and in this state’s supreme court decision of State v. Chauvin, 723


                                              6
N.W.2d 20 (Minn. 2006). The state quotes the Blakely holding that “the State’s sentencing

procedure did not comply with the Sixth Amendment.” Blakely v. Washington, 542 U.S.

296, 305, 124 S. Ct. 2531, 2538 (2004) (emphasis added). And it quotes the Chauvin

court’s description of Blakely, in its observation that “Blakely did not remove the ability of

a judge to impose an aggravated sentence, it only changed the process by which aggravated

sentences may be imposed,” and that Blakely “merely changed the steps that the court took

in arriving at a sentence already authorized by the legislature.” Chauvin, 723 N.W.2d at

25 (emphasis added). Because Reynolds’s ten-year conditional -release term is “a sentence

already authorized by the legislature,” (and, as the state points out, a ten-year release term

is actually mandated by the legislature for risk-level-III offenders, see Minn. Stat.

§ 243.166, subd. 5a (stating that if “at the time of the violation, the person was assigned to

risk level III . . . the court shall provide that . . . the commissioner shall place the person on

conditional release for ten years”)), the state maintains that Reynolds’s challenge is not

truly one that seeks to vacate a sentence “not authorized by law.”

        We see two problems with the state’s plain-language argument. We address them

both.

        The first problem with the state’s plain-language argument is that it does not

carefully consider the rule’s plain language. The rule does not expressly restrict itself to

challenges to sentences that are “not authorized by the legislature,” as the state implies; the

rule instead allows for challenges to sentences that are, more broadly, “not authorized by

law.” The federal and state constitutions articulate the court’s limited authority to impose

a criminal sentence, and those documents allow district courts to sentence a defendant only


                                                7
to the extent the legislature has generally authorized and only to the extent a jury has

specifically authorized. Reynolds is essentially arguing that the district court imposed a

sentence not authorized by law because the sentence includes a term that depends on a fact

not found by the jury. Because Reynolds’s challenge questions the legality of his sentence

and does not even remotely implicate either his conviction or the procedure leading to his

conviction, we conclude that his challenge fits both the plain language of rule 27.03 and

the caselaw that has construed the rule. He may therefore bring his challenge under the

rule.

        The second problem with the state’s plain-language argument is that an attempt to

distinguish between a sentence that allegedly exceeds the legislative authority and one that

allegedly exceeds a district court’s constitutional authority is undermined by Blakely itself.

As the state supreme court recently pointed out, the Blakely Court “has defined [‘statutory

maximum’] for Sixth Amendment purposes as the maximum sentence a judge may impose

solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”

Her, 862 N.W.2d at 696 (quotation omitted); see also State v. Shattuck, 704 N.W.2d 131,

141–42 (Minn. 2005) (holding that the presumptive sentencing range in the Minnesota

Sentencing Guidelines determines the maximum sentence a district court may impose

without additional fact-finding). So even if the rule applies only to allegations that the

district court imposed a sentence exceeding the statutory maximum, Reynolds’s motion

fits the rule.

        Although we rest on the language of rule 27.03, our reasoning finds support in the

treatment of a similar, albeit not identical, federal procedural rule. We have considered that


                                              8
“[t]he pertinent portion of Minnesota’s rule is modeled after a federal rule of criminal

procedure, as it existed before the federal sentencing guidelines.” Washington, 845 N.W.2d

at 213. For convictions before 1987, rule 35 of the Federal Rules of Criminal Procedure

provided in part, “The court may correct an illegal sentence at any time . . . .” Fed. R. Crim.

P. 35 (1982). The Supreme Court stated that sentences subject to correction under the rule

are “those that the judgment of conviction did not authorize.” United States v. Morgan, 346

U.S. 502, 506, 74 S. Ct. 247, 250 (1954). The narrow function of rule 35 was to permit

correction of an illegal sentence, “not to re-examine errors occurring at the trial or other

proceedings prior to the imposition of sentence.” Hill v. United States, 368 U.S. 424, 430,

82 S. Ct. 468, 472 (1962).

       Rather than restrict the federal rule to allow only challenges to sentences that

exceeded the statutory limits of the underlying crime, the Supreme Court more broadly

explained that a sentence could not be “illegal” under the rule if “[t]he punishment meted

out was not in excess of that prescribed by the relevant statutes, multiple terms were not

imposed for the same offense, nor were the terms of the sentence itself legally or

constitutionally invalid in any other respect.” Id. (emphasis added). It is true that federal

courts interpreting the Hill Court’s language did not allow for just any constitutional

sentence-related challenge under the rule. See, e.g., United States v. Peltier, 312 F.3d 938,

942 (8th Cir. 2002) (holding that petitioner’s challenge that “his sentences were imposed

in violation of his due process rights because they were based on information that was false

due to government misconduct” was not a challenge to an “illegal sentence” under rule 35).

But the federal circuit courts did interpret Hill to mean that a rule 35 challenge to a sentence


                                               9
could rest on a claim of a double jeopardy violation. See, e.g., United States v. Pavlico, 961

F.2d 440, 443 (4th Cir. 1992). In 1987, long before Blakely, Congress amended rule 35 to

remove the provision allowing district courts to correct an illegal sentence, and we are

aware of no federal caselaw considering whether the rule was ever applied to challenges to

sentences that arose from the district court’s allegedly exceeding its constitutional

sentencing authority in any way analogous to a Blakely challenge. But we are satisfied that

the federal courts understood the old federal rule in the same way we are applying rule

27.03 today. That is, a challenge to a sentence as an illegal sentence or a sentence not

authorized by law includes more than claims that the sentence exceeds the length allowed

by statute.

       Having determined that Reynolds’s sentencing challenge fits the challenges

contemplated by rule 27.03, we turn to the district court’s alternative holding based on the

merits of the challenge.

                                              II

       As we have said, the supreme court has had the opportunity to decide the ultimate

legal question that Reynolds raises in his rule 27.03 motion. In State v. Her, the court held

that, in keeping with a defendant’s Sixth Amendment right to a jury trial, a district court

can impose a ten-year conditional-release term based on a defendant’s status as a risk-level-

III offender only if the status has been either admitted by the defendant or found by a jury.

862 N.W.2d at 696. The district court here reached a different conclusion based on an

unpublished 2013 court of appeals opinion that, like the district court’s decision, preceded

the supreme court’s holding in Her. Applying Her, we hold that the district court’s


                                             10
imposition of the conditional-release term with neither an admission nor a jury finding of

Reynolds’s offender status level violated Reynolds’s Blakely rights. We therefore reverse

that part of Reynolds’s sentence.

                                             III

       The only remaining issue is the remedy. The Her court noted that it was expressing

no opinion on the proper remedy, observing that “neither party has addressed, nor did we

grant review on, the appropriate remedy for the constitutional violation.” Id. at 700 n.4. It

therefore remanded only with the general direction that the district court engage in “further

proceedings consistent with [the] opinion.” Id. at 700.

       We are in a somewhat similar situation on the question of remedy, and we likewise

will return the case to the district court without specifying the particular remedy. Reynolds

argues that we should prohibit the district court from impaneling a sentencing jury to

determine his risk level because allowing the sentencing jury to determine the fact at this

juncture would constitute a double jeopardy violation. But Reynolds does not develop the

argument clearly enough for us to issue an opinion resolving it. And we observe that in our

prior decisions involving Blakely violations, we have placed no similar limitation on the

district court. See, e.g., State v. Ayala-Leyva, 848 N.W.2d 546, 559 (Minn. App. 2014),

review denied (Minn. Aug. 11, 2015); State v. Wiskow, 774 N.W.2d 612, 620 (Minn. App.

2009). More specifically, the supreme court decision in State v. Hankerson authorized the

retrospective use of a sentencing jury after finding a Blakely violation, and in doing so it

carefully considered but rejected Hankerson’s argument that a resentencing hearing would

constitute a violation of Hankerson’s right not to be subjected to double jeopardy. 723


                                             11
N.W.2d 232, 240 (Minn. 2006). Reynolds attempts to distinguish Hankerson and asserts

that the Hankerson court’s discussion leaves the door open for a double jeopardy restriction

in this circumstance. The state thoroughly discusses the issue, but it focuses substantially

on the district court’s inherent authority to impanel a sentencing jury; that original authority

does not answer what should be the appropriate remedial authority of the district court

following a violation. Under these circumstances, we believe the best approach is to allow

the parties the opportunity to develop the issue of the appropriate remedy more completely

and precisely in the district court, without prejudice to the theories presented but not fully

analyzed on appeal. We therefore leave it to the district court to first determine the

appropriate remedy on remand after the parties have had the opportunity to develop their

positions.

                                       DECISION

       Rule 27.03 is a mechanism through which Reynolds properly raised his Blakely

challenge, and the district court erred by treating his challenge as time-barred under the

postconviction statute and also by rejecting it on the merits. Because Reynolds’s risk level

at the time of the violation was neither found by a jury nor admitted by Reynolds before

sentencing, we reverse and remand for resentencing consistent with this opinion.

       Reversed and remanded.




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