                         This opinion will be unpublished and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
                                    A14-0745

                            Terelle Eugene Shaw, petitioner,
                                       Appellant,

                                           vs.

                                  State of Minnesota,
                                     Respondent.

                               Filed December 29, 2014
                                      Affirmed
                                   Huspeni, Judge*

                            Hennepin County District Court
                             File No. 27-CR-98-126941

Cathryn Middlebrook, Chief Appellate Public Defender, Stephanie A. Karri, Assistant
Public Defender, St. Paul, Minnesota; and

Bradford W. Colbert, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry III, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

      Considered and decided by Rodenberg, Presiding Judge; Kirk, Judge; and

Huspeni, Judge.




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                          UNPUBLISHED OPINION

HUSPENI, Judge

       In this appeal challenging a sentencing departure imposed under a plea agreement,

appellant argues that the departure is unlawful because the only reason the district court

gave for the departure was the parties’ agreement. We affirm.

                                         FACTS

       A grand jury indicted appellant Terelle Eugene Shaw on one count of first-degree

premeditated murder and one count of second-degree intentional murder. In exchange

for the state’s dismissal of the first-degree charge and agreement that appellant’s brother

and mother, who had been charged as accomplices, would receive probation, appellant

pleaded guilty to second-degree intentional murder. In June 1999, as provided in the plea

agreement, appellant was sentenced to 396 months in prison, an upward durational

departure from the presumptive sentence.

       In April 2002, the district court summarily denied appellant’s motion for

postconviction relief in which he argued that he did not validly waive his right to be

sentenced according to the guidelines and that he received ineffective assistance of

counsel. This court dismissed appellant’s appeal from that denial as untimely and denied

his motion to reinstate it.

       In 2013, appellant filed a motion to correct his sentence under Minn. R. Crim. P.

27.03, subd. 9. In a supplemental memorandum, he argued that his sentence was illegal

under State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), which held that a plea

agreement alone is not a sufficient basis to support an upward durational departure. The


                                            2
district court characterized appellant’s motion as a postconvction petition and summarily

denied relief. This appeal followed.

                                       DECISION

                                              I.

         We note initially the impact in this appeal of Minn. R. Crim. P. 27.03, subd. 9,

Minn. Stat. § 590.01 (2012), and Orozco v. State, 841 N.W. 2d 632 (Minn. App. 2014),

review granted and stayed (Minn. Mar. 18, 2014) (pending disposition in State v. Coles,

No. Al3-0789). We include all three in our analysis and affirm the decision of the district

court.

         Appellant insists that his request for relief must be addressed pursuant to rule

27.03, and that respondent raised no objection to that reliance and should not be

permitted to now address the issue under Minn. Stat. § 590.01. We disagree.1

         The district court in the order now being appealed addressed the rule, the statute,

and Orozco in dismissing appellant’s “motion for post-conviction relief.” The court

recognized that under Orozco, a rule 27.03 motion is properly treated as a postconviction

petition when the relief requested affects the finality of a conviction. The court then

stated in part:

                         At the time [appellant] entered his plea of guilty,
                  negotiated upward departures could be validly imposed
                  pursuant to a plea agreement. State v. Givens, 544 N.W.2d

1
  See Carlton v. State, 816 N.W.2d 590, 601 (Minn. 2012) (concluding that time limit in
Minn. Stat. § 590.01, subd. 4, is not jurisdictional and can be waived by state). Although
the state did not address the two-year time limit in responding to appellant’s
supplemental memorandum, the state preserved the issue by raising it in its initial
memorandum opposing appellant’s motion in the district court.

                                              3
              774, 777 (Minn. 1996). The Minnesota Supreme Court
              overruled Givens in 2002, holding that plea agreements may
              no longer serve as the basis for an upward departure.
              [Misquadace, 644 N.W.2d at 71-72.] However, the Court’s
              ruling does not apply retro-actively. Hutchinson v. State, 679
              N.W.2d 160, 164 (Minn. 2004) (Misquadace is not
              retroactive). Therefore, Givens was controlling law at the
              time of appellant’s sentencing and the departure is
              appropriate based upon the plea agreement alone.

       Minn. R. Crim P. 27.03, subd. 9, permits a court to “at any time correct a sentence

not authorized by law.” The procedural rules and limitations of the postconviction act do

not apply to a challenge properly brought under this rule. Washington v. State, 845

N.W.2d 205, 212 (Minn. App. 2014). “[R]ule 27, subdivision 9, authorizes relief only if

a party challenges a sentence, as opposed to a conviction, and only if a party does so by

asserting that a sentence is ‘unauthorized by law’ in the sense that the sentence is

contrary to an applicable statute or other applicable law.” Id. at 213.

       As recognized by the district court, this court has held that “[a] motion to correct a

sentence under Minn. R. Crim. P. 27.03, subd. 9, is properly construed as a petition for

postconviction relief when the sentence was imposed pursuant to a plea agreement and

granting the requested correction would allow the defendant to retain the benefit of a

reduced charge and avoid the burden of the agreed-upon sentence.” Orozco, 841 N.W.2d

at 633. At present, Orozco controls the resolution of whether the district court properly

construed appellant’s motion as a petition for postconviction relief. See State v. M.L.A.,

785 N.W.2d 763, 767 (Minn. App. 2010) (stating that court of appeals and district court

are “bound by supreme court precedent and the published opinions of the court of




                                             4
appeals” and must apply precedent to factually similar cases), review denied (Minn. Sept.

21, 2010).

       Appellant relies on State v. Amundson, 828 N.W.2d 747, 751 (Minn. App. 2013),

to argue that his challenge to his sentence is properly asserted under Minn. R. Crim. P.

27.03, subd. 9. This court in Orozco distinguished Amundson as follows, however:

              [T]his court did not consider whether the fact that
              Amundson’s sentence was agreed to in a plea agreement
              affected the applicability of Vazquez[, which held that two-
              year time limit does not apply to motions under rule 27.03,
              subdivision 9,] because the state had waived its right to claim
              that the motion was time-barred by conceding that Vazquez
              applied and that the motion was properly filed under rule
              27.03, subdivision 9. We, therefore, conclude that, although
              Amundson’s motion was brought under circumstances similar
              to appellant’s motion, Amundson did not determine that the
              two-year limitations period for postconviction petitions does
              not apply to a rule 27.03 motion that, like appellant’s motion,
              affects the finality of a conviction.

Orozco, 841 N.W.2d at 636-37. Under Orozco, the district court properly construed

appellant’s motion as a petition for postconviction relief.

       Subject to exceptions not applicable to this case, Minn. Stat. § 590.01, subd. 4,

requires that a petition for postconviction relief must be filed no later than two years after

the disposition of a direct appeal or the date when the conviction becomes final if no

appeal is filed. This two-year time limit became effective August 1, 2005, and allowed

defendants whose convictions became final before that date until July 31, 2007, to seek

postconviction relief.    2005 Minn. Laws ch. 136, art. 14, §§ 12-13, at 1097-98.

Appellant’s conviction became final in 1999. See State v. Hughes, 758 N.W.2d 577, 580

(Minn. 2008) (stating that, “if a defendant does not file a direct appeal, his conviction is


                                              5
final for retroactivity purposes when the time to file a direct appeal has expired.”).

Appellant did not file the motion currently on appeal until 2013.     Appellant’s motion,

therefore, is time-barred.

         Appellant’s motion is also procedurally barred.    A postconviction petition is

procedurally barred, following direct appeal, for any claim “known but not raised,”

unless the claim should be heard in the interests of justice or because a novel legal issue

is presented. State v. Knaffla, 309 Minn. 246, 252–53, 243 N.W.2d 737, 741 (1976). The

Knaffla rule applies to claims that were raised or could have been raised in a previous

postconviction proceeding.      Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999).

Appellant does not assert that either Knaffla exception applies, and, although Misquadace

was not decided until after the district court denied appellant’s 2002 petition, Misquadace

was pending before the supreme court when appellant filed the 2002 petition, so appellant

could have raised the issue at that time.

                                            II.

         Because Orozco is pending before the supreme court, and because the procedural

rules and time limitations of the postconviction act do not apply to a challenge properly

brought under Minn. R. Crim. P. 27.03, subd. 9, we consider the merits of appellant’s

claim.

         Under the law in effect when appellant was sentenced, an upward sentencing

departure could be based solely on a plea agreement.        Givens, 544 N.W.2d at 777

(holding that a defendant may waive the right to be sentenced under the guidelines).

After appellant was sentenced, the supreme court overruled Givens and held that a plea


                                            6
agreement, standing alone, is not a sufficient basis to support a sentencing departure.

Misquadace, 644 N.W.2d at 71-72.          In Hutchinson, the supreme court held that

Misquadace did not apply to a conviction that had become final before Misquadace was

decided. 679 N.W.2d at 164.

       Although appellant’s conviction became final in 1999 and Misquadace was not

decided until 2002, appellant argues that it can be applied to his sentence because the

time to appeal the 2002 order denying postconviction relief had not expired when

Misquadace was decided. Citing Campos v. State, appellant argues that new rules can

apply retroactively in collateral proceedings. 816 N.W.2d 480, 487-88 (Minn. 2012).

Campos applied the Teague analysis to determine whether a new federal rule of criminal

procedure applied retroactively. Id. at 488 (citing Teague v. Lane, 489 U.S. 288, 109 S.

Ct. 1060 (1989)).

       Even if the Teague analysis applies to a change in state law, the general rule under

Teague is that new rules do not apply to convictions that have become final. Sawyer v.

Smith, 497 U.S. 227, 241-42, 110 S. Ct. 2822, 2831 (1990). The two exceptions are

(1) new rules that “place an entire category of primary conduct beyond the reach of the

criminal law,” or “new rules that prohibit imposition of a certain type of punishment for a

class of defendants because of their status or offense”; and (2) “new watershed rules of

criminal procedure that are necessary to the fundamental fairness of the criminal

proceeding.” Id. (quotation and citations omitted).




                                             7
       Appellant argues that the watershed exception applies to this case. The watershed

exception is limited “to those new procedures without which the likelihood of an accurate

conviction is seriously diminished.” Teague, 489 U.S. at 313, 109 S. Ct. at 1077.

                      Because we operate from the premise that such
              procedures would be so central to an accurate determination
              of innocence or guilt, we believe it unlikely that many such
              components of basic due process have yet to emerge. We are
              also of the view that such rules are best illustrated by
              recalling the classic grounds for the issuance of a writ of
              habeas corpus — that the proceeding was dominated by mob
              violence; that the prosecutor knowingly made use of perjured
              testimony; or that the conviction was based on a confession
              extorted from the defendant by brutal methods.

Id. (quotation omitted). The change in law prohibiting a sentencing departure to be based

solely on a plea agreement is not such a procedure.

       Regardless of whether appellant’s motion is properly construed as a

postconviction petition or a motion to correct a sentence under Minn. R. Crim. P. 27.03,

subd. 9, the district court properly denied relief.

       Affirmed.




                                               8
