Opinion
A23-1623
03-20-2024
Deontray Vershon Tate, petitioner, Appellant, v. State of Minnesota, Respondent.
Hennepin County District Court File No. 27-CR-13-22120
Considered and decided by Segal, Chief Judge; Slieter, Judge; and Larson, Judge.
ORDER OPINION
Susan L. Segal, Chief Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Deontray Vershon Tate appeals from the district court's September 26, 2023 order, construing his motion to correct sentence filed under Minn. R. Crim. P. 27.03, subd. 9, as an untimely and procedurally barred postconviction petition.
2. Respondent State of Minnesota charged Tate in Hennepin County District Court with two counts of first-degree and one count of second-degree assault for a shooting that occurred on June 25, 2013. State v. Tate, No. A14-1339, 2016 WL 952444, at *1-2 (Minn.App. Mar. 14, 2016), rev. denied (Minn. May 31, 2016), cert. denied, 137 S.Ct. 315 (2016). Tate was convicted of the two counts of first-degree assault and was sentenced for both.
3. On direct appeal, which we stayed for Tate to pursue postconviction proceedings, we affirmed Tate's conviction and sentence, concluding that (1) the district court did not abuse its discretion when it denied Tate's request to introduce evidence related to an alternative perpetrator and rejected his related argument that counsel was ineffective, (2) the evidence was sufficient to support Tate's convictions of first-degree assault, (3) the district court did not plainly err by allowing the doctor to testify that a gunshot wound is a "serious injury," and (4) the prosecutor did not commit misconduct by allegedly aligning herself with the jury or by vouching for witnesses. Id. at *4-7. With respect to Tate's sentences, we concluded that the district court did not abuse its discretion when it imposed (1) an upward durational departure in connection with the first-degree assault conviction related to the child victim based on vulnerability due to the child's young age and (2) a permissive consecutive sentence for the first-degree assault related to the adult victim because it did not exaggerate the criminality of Tate's conduct. Id. at *7-8. The Minnesota Supreme Court denied Tate's petition for further review on May 31, 2016. The United States Supreme Court denied certiorari review on October 11, 2016.
4. In November 2017, Tate filed a second petition for postconviction relief with the assistance of new counsel, arguing that appellate counsel was ineffective for failing to raise an ineffective-assistance-of-trial-counsel claim based on trial counsel's failure to object to the state's lack of proper notice of its intent to seek an upward sentencing departure under Minn. R. Crim. P. 7.03. Tate v. State, No. A18-0909, 2019 WL 1007771, at *2 (Minn.App. Mar. 4, 2019), rev. denied (Minn. May 28, 2019). The district court denied the petition without an evidentiary hearing. Id. We reversed and remanded for an evidentiary hearing. Id. at *3-5.
5. After an evidentiary hearing, the district court again denied postconviction relief, and we affirmed. Tate v. State, No. A20-0869, 2021 WL 1082325, at *4 (Minn.App. Mar. 22, 2021), rev. denied (Minn. June 15, 2021). We held that the record supported the district court's finding that the prosecutor gave oral notice of the state's intent to seek an aggravated sentence four months before trial, no caselaw would have precluded the district court from finding good cause for the late notice, and the facts alleged to support the aggravated sentence "were intertwined with the facts of the charged offense," so Tate was not prejudiced by the late notice. Id.
6. In June 2023, Tate filed a motion to correct sentence under Minn. R. Crim. P. 27.03, subd. 9, arguing that his sentence is unauthorized by law because it constitutes a double upward departure that was imposed without proper notice under Minn. R. Crim. P. 7.03 of the state's intent to seek a departure. The district court summarily denied the motion in an order entered on September 26, 2023, treating Tate's motion as an untimely and procedurally barred postconviction petition. Tate appeals the order.
7. First, Tate argues that the district court erred by treating his motion to correct sentence as an untimely and procedurally barred postconviction petition. Tate contends that the state's failure to provide written notice of its intent to seek an aggravated sentence within seven days of the omnibus hearing as required by Minn. R. Crim. P. 7.03 makes his aggravated sentence unauthorized. He maintains that the district court therefore should have treated his motion as a motion to correct sentence under Minn. R. Crim. P. 27.03, subd. 9.
8. A defendant seeking to challenge a sentence after direct appeal has two alternative means for challenging a sentence: a motion to correct sentence under Minn. R. Crim. P. 27.03, subd. 9, or a petition for postconviction relief under Minn. Stat. § 590.01, subd. 1(1) (2022). Washington v. State, 845 N.W.2d 205, 210 (Minn.App. 2014). The supreme court has narrowly construed Minn. R. Crim. P. 27.03, subd. 9, as applying only to those circumstances where the sentence "was unauthorized by law at the time it was imposed." State v. Schnagl, 859 N.W.2d 297, 301 (Minn. 2015). Relief under the postconviction statute, Minn. Stat. §§ 590.01-.11 (2022), is broader but is subject to procedural requirements, including a strict two-year time limit and a procedural bar that limits repetitive challenges to a conviction or sentence. Washington, 845 N.W.2d at 210. The procedural requirements do not apply to a properly filed motion to correct sentence under Minn. R. Crim. P. 27.03, subd. 9. Id. at 211. A defendant may not, however, avoid the postconviction procedural bars by "simply labeling a challenge as a motion to correct sentence under rule 27.03, subdivision 9." Id. at 212.
9. The district court has authority to treat a request to correct a sentence purportedly brought as a motion under Minn. R. Crim. P. 27.03, subd. 9, as a petition for postconviction relief. State v. Coles, 862 N.W.2d 477, 480 (Minn. 2015). The standard of review that applies to a district court's decision to treat a motion to correct sentence as a petition for postconviction relief is unclear, however. Bolstad v. State, 966 N.W.2d 239, 243-43 (Minn. 2021). In Bolstad, the supreme court applied the de novo standard because the sentencing issue depended on interpretation of a statute. Because the issue here involves the interpretation of Minn. R. Crim. P. 7.03, we likewise conclude that the appropriate standard of review is de novo. See State v. Nelson, 773 N.W.2d 330, 332 (Minn.App. 2009) (stating construction of court rules is a question of law reviewed de novo).
10. We agree with Tate that the district court erred when it treated his motion as a petition for postconviction relief under Minn. Stat. § 590.01. In Reynolds v. State, the supreme court concluded that a challenge to the imposition of a conditional-release term, a procedural question involving Blakely v. Washington, 542 U.S. 296 (2004), was properly raised in a motion to correct sentence. 888 N.W.2d 125, 130 (Minn. 2016) (holding that failure to follow procedure for obtaining a ten-year conditional-release term made the sentence unauthorized by law). Because Tate's motion challenges a procedure that, if he were to prevail, would make his sentence unauthorized by law, we are persuaded that it is properly filed as a motion to correct sentence, and the district court erred by applying the postconviction time and procedural bars to his claim.
11. But we nevertheless affirm the district court's denial of Tate's request for relief on the merits. This court reviews "the district court's denial of a motion to correct a sentence for an abuse of discretion." Townsend v. State, 834 N.W.2d 736, 738 (Minn. 2013). "Specifically, we review the district court's legal conclusions de novo and its factual findings under the clearly erroneous standard." Id.
12. In addressing Tate's claim that the district court plainly erred by imposing an aggravated sentencing departure when the state did not provide written and timely notice as required by Minn. R. Crim. P. 7.03, the district court referenced its prior order and this court's decision affirming it. The district court then concluded that appellate counsel was not ineffective because counsel acted reasonably in determining that the ineffective-assistance-of-trial-counsel claim would have failed on the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687 (1984).
13. In State v. Barthman, the supreme court considered whether it was plain error for the state to fail to provide a factual summary to support its request for an aggravated departure, as required by Minn. R. Crim. P. 7.03. 938 N.W.2d 257, 268 (Minn. 2020). Focusing on prejudice, the supreme court concluded that the absence of a factual summary did not affect Barthman's substantial rights because Barthman did not argue that he did not know what facts the state would attempt to prove, the parties discussed the additional factual findings for a special verdict form, and Barthman did not claim he was unaware of the facts or seek a continuance to dispute them. Id. at 268-69. Accordingly, the supreme court concluded that Barthman failed to show that the error affected his substantial rights. Id. at 269.
14. In addressing Tate's ineffective-assistance-of-appellate-counsel claim related to defense counsel's failure to object to the late notice in a prior appeal, we discerned no prejudice to Tate from the lack of formal notice "because the facts the state alleged in support of an aggravated sentence . . . were intertwined with the facts of the charged offenses," and the record showed that Tate's trial counsel had actual notice of the state's intent at least four months before trial. Tate, No. A20-0869, 2021 WL 1082325, at *4. Tate's brief references the same information in the record that shows his trial counsel had notice of the state's intent to seek a departure. And like Barthman, the record does not show what Tate's trial counsel would have done differently if the state had provided timely written notice as required by rule 7.03. Tate has thus failed to demonstrate prejudice.
15. Because Tate has not shown that his aggravated sentence was unauthorized by the state's failure to strictly comply with rule 7.03, we conclude that the district court did not abuse its discretion by denying relief without an evidentiary hearing. See Swaney v. State, 882 N.W.2d 207, 216 (Minn. 2016) (concluding district court did not abuse its discretion by summarily denying claims that fail because they are procedurally barred). IT IS HEREBY ORDERED:
1. The district court's order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.