This opinion will be unpublished and may not be cited except as provided by Minn.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 A14-0305
Jose Socorro Ortiz, petitioner, Appellant,
vs.
State of Minnesota, Respondent.
Filed January 5, 2015 Affirmed Ross, Judge
Hennepin County District Court File No. 27-CR-05-075625
David L. Wilson, Erica E. Davis, Anna Scholl, Wilson Law Group, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County Attorney, Justin A. Wesley, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Ross, Presiding Judge; Cleary, Chief Judge; and
Schellhas, Judge.
UNPUBLISHED OPINION
ROSS, Judge
We are asked whether the district court accurately held that it lacks the authority to
reduce the term of Jose Ortiz’s expired criminal sentence so that Ortiz could avoid being the subject of potential deportation. Ortiz, who pleaded guilty to obstruction of legal
process in 2006 and received a sentence that expired in 2008, challenges the district
court’s decision to deny his motion to modify his expired sentence. He argues that the
district court had both statutory authority and inherent authority to grant the motion. We
affirm because Ortiz’s motion is untimely under the postconviction statute and the rules
of criminal procedure and because the district court lacks the inherent authority to modify
expired sentences outside the avenue prescribed by the legislature.
FACTS
Ortiz was born in Mexico and became a legal permanent resident of the United
States when he was fifteen. Three years later, in 2005 he had a run in with police and then
pleaded guilty to gross misdemeanor obstruction of legal process under Minnesota
Statutes section 609.50, subdivision 2(2) (2004). The district court sentenced Ortiz to 365
days in the workhouse, 320 of which were stayed for two years on probationary
conditions. The federal government follows a policy of deporting noncitizens who have
felony convictions. Although Ortiz’s conviction is a nonfelony gross misdemeanor under
Minnesota law, the Immigration and Nationality Act defines his crime as an aggravated
felony because it involved violence and could have resulted in a sentence of 365 days of
incarceration. 8 U.S.C. § 1101(a)(43)(F) (2004 & Supp. I 2005); 18 U.S.C. § 16(a)
(2005). Five years after his sentence expired, the United States Department of Homeland
Security followed federal policy and began proceedings to deport Ortiz based on his 2006
conviction.
2 Ortiz moved the district court to reduce his 365-day expired sentence by one day
to avoid deportation. Ortiz relied on rule 27 of the Minnesota Rules of Criminal
Procedure, arguing that it grants district courts the power to modify sentences at any time.
He alternatively asserted that the court had the inherent authority to reduce his gross
misdemeanor sentence in the interests of justice. The district court denied Ortiz’s motion.
It determined that it lacked the authority to modify the sentence and that, even if it
generally had this authority, it would be precluded from altering Ortiz’s sentence because
immigration consequences are not an appropriate sentencing factor. Ortiz’s appeal
follows.
DECISION
Ortiz challenges the district court’s decision not to reduce his sentence. We
address his challenge in light of rule 27, the postconviction statute, and the district court’s
inherent authority. We do not address the district court’s decision that immigration
consequences cannot influence sentencing.
I
Ortiz argues that his motion was properly before the district court under rule
27.03. The parties debate the meaning of the rule:
The court may at any time correct a sentence not authorized by law. The court may modify a sentence during a stay of execution or imposition of sentence if the court does not increase the period of confinement.
Minn. R. Crim. P. 27.03, subd. 9. Ortiz asks that we construe the rule as authorizing the
district court to modify his sentence so long as the new sentence does not increase a
3 period of confinement. In other words, he would have us borrow the phrase “any time”
from the rule’s first sentence and incorporate it into the second sentence. We interpret the
rules of criminal procedure de novo. Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005).
When interpreting clear and unambiguous language, we follow the rules of grammar and
define words according to their natural and obvious usage. State v. Garcia-Gutierrez, 844
N.W.2d 519, 521 (Minn. 2014).
Following the most natural and obvious reading of the rule, the two sentences
operate independently, each providing a different form of relief under different
circumstances. This plain-language reading has already been confirmed in the caselaw.
See State v. Hockensmith, 417 N.W.2d 630, 632–33 (Minn. 1988). Under the rule’s first
sentence, district courts are not temporally constrained from correcting sentences “not
authorized by law,” being free to correct them “at any time.” Id. at 633. One can therefore
successfully invoke this provision only when his sentence is unauthorized. Id. This
includes only a narrow class of sentencing challenges, such as, for example, when a
defendant was unlawfully sentenced for multiple offenses arising out of a single
behavioral incident in violation of Minnesota Statutes section 609.04 (2006), Spann v.
State, 740 N.W.2d 570, 573 (Minn. 2007), or when the district court unlawfully stays a
sentence in the face of a statute that mandates an executed sentence, Bangert v. State, 282
N.W.2d 540, 547 (Minn. 1979), or when the district court unlawfully sentences the
defendant based on an incorrect criminal history score, State v. Maurstad, 733 N.W.2d
141, 147 (Minn. 2007), or when the defendant’s sentence constituted an unlawful upward
departure, State v. Amundson, 828 N.W.2d 747, 752–53 (Minn. App. 2013).
4 But the rule’s first sentence does not apply when the district court imposes a
lawful sentence. Hockensmith, 417 N.W.2d at 633. The challenger must then rely on the
rule’s second sentence, but that part of the rule applies only if “the defendant has not yet
begun to serve [his sentence]—that is during either a stay of imposition or stay of
execution of sentence.” Id. (quotation omitted). If the defendant has already begun
serving his sentence, the provision no longer applies. Reeseman v. State, 449 N.W.2d
489, 490 (Minn. App. 1989).
The rule’s language on its face and as interpreted in the caselaw convinces us that
Ortiz cannot successfully rest his challenge on it. The rule’s first provision does not apply
because Ortiz’s 365-day sentence was authorized by law. See Minn. Stat. § 609.50,
subd. 2(2) (providing for penalty of imprisonment for not more than one year). Ortiz does
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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 A14-0305
Jose Socorro Ortiz, petitioner, Appellant,
vs.
State of Minnesota, Respondent.
Filed January 5, 2015 Affirmed Ross, Judge
Hennepin County District Court File No. 27-CR-05-075625
David L. Wilson, Erica E. Davis, Anna Scholl, Wilson Law Group, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County Attorney, Justin A. Wesley, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Ross, Presiding Judge; Cleary, Chief Judge; and
Schellhas, Judge.
UNPUBLISHED OPINION
ROSS, Judge
We are asked whether the district court accurately held that it lacks the authority to
reduce the term of Jose Ortiz’s expired criminal sentence so that Ortiz could avoid being the subject of potential deportation. Ortiz, who pleaded guilty to obstruction of legal
process in 2006 and received a sentence that expired in 2008, challenges the district
court’s decision to deny his motion to modify his expired sentence. He argues that the
district court had both statutory authority and inherent authority to grant the motion. We
affirm because Ortiz’s motion is untimely under the postconviction statute and the rules
of criminal procedure and because the district court lacks the inherent authority to modify
expired sentences outside the avenue prescribed by the legislature.
FACTS
Ortiz was born in Mexico and became a legal permanent resident of the United
States when he was fifteen. Three years later, in 2005 he had a run in with police and then
pleaded guilty to gross misdemeanor obstruction of legal process under Minnesota
Statutes section 609.50, subdivision 2(2) (2004). The district court sentenced Ortiz to 365
days in the workhouse, 320 of which were stayed for two years on probationary
conditions. The federal government follows a policy of deporting noncitizens who have
felony convictions. Although Ortiz’s conviction is a nonfelony gross misdemeanor under
Minnesota law, the Immigration and Nationality Act defines his crime as an aggravated
felony because it involved violence and could have resulted in a sentence of 365 days of
incarceration. 8 U.S.C. § 1101(a)(43)(F) (2004 & Supp. I 2005); 18 U.S.C. § 16(a)
(2005). Five years after his sentence expired, the United States Department of Homeland
Security followed federal policy and began proceedings to deport Ortiz based on his 2006
conviction.
2 Ortiz moved the district court to reduce his 365-day expired sentence by one day
to avoid deportation. Ortiz relied on rule 27 of the Minnesota Rules of Criminal
Procedure, arguing that it grants district courts the power to modify sentences at any time.
He alternatively asserted that the court had the inherent authority to reduce his gross
misdemeanor sentence in the interests of justice. The district court denied Ortiz’s motion.
It determined that it lacked the authority to modify the sentence and that, even if it
generally had this authority, it would be precluded from altering Ortiz’s sentence because
immigration consequences are not an appropriate sentencing factor. Ortiz’s appeal
follows.
DECISION
Ortiz challenges the district court’s decision not to reduce his sentence. We
address his challenge in light of rule 27, the postconviction statute, and the district court’s
inherent authority. We do not address the district court’s decision that immigration
consequences cannot influence sentencing.
I
Ortiz argues that his motion was properly before the district court under rule
27.03. The parties debate the meaning of the rule:
The court may at any time correct a sentence not authorized by law. The court may modify a sentence during a stay of execution or imposition of sentence if the court does not increase the period of confinement.
Minn. R. Crim. P. 27.03, subd. 9. Ortiz asks that we construe the rule as authorizing the
district court to modify his sentence so long as the new sentence does not increase a
3 period of confinement. In other words, he would have us borrow the phrase “any time”
from the rule’s first sentence and incorporate it into the second sentence. We interpret the
rules of criminal procedure de novo. Ford v. State, 690 N.W.2d 706, 712 (Minn. 2005).
When interpreting clear and unambiguous language, we follow the rules of grammar and
define words according to their natural and obvious usage. State v. Garcia-Gutierrez, 844
N.W.2d 519, 521 (Minn. 2014).
Following the most natural and obvious reading of the rule, the two sentences
operate independently, each providing a different form of relief under different
circumstances. This plain-language reading has already been confirmed in the caselaw.
See State v. Hockensmith, 417 N.W.2d 630, 632–33 (Minn. 1988). Under the rule’s first
sentence, district courts are not temporally constrained from correcting sentences “not
authorized by law,” being free to correct them “at any time.” Id. at 633. One can therefore
successfully invoke this provision only when his sentence is unauthorized. Id. This
includes only a narrow class of sentencing challenges, such as, for example, when a
defendant was unlawfully sentenced for multiple offenses arising out of a single
behavioral incident in violation of Minnesota Statutes section 609.04 (2006), Spann v.
State, 740 N.W.2d 570, 573 (Minn. 2007), or when the district court unlawfully stays a
sentence in the face of a statute that mandates an executed sentence, Bangert v. State, 282
N.W.2d 540, 547 (Minn. 1979), or when the district court unlawfully sentences the
defendant based on an incorrect criminal history score, State v. Maurstad, 733 N.W.2d
141, 147 (Minn. 2007), or when the defendant’s sentence constituted an unlawful upward
departure, State v. Amundson, 828 N.W.2d 747, 752–53 (Minn. App. 2013).
4 But the rule’s first sentence does not apply when the district court imposes a
lawful sentence. Hockensmith, 417 N.W.2d at 633. The challenger must then rely on the
rule’s second sentence, but that part of the rule applies only if “the defendant has not yet
begun to serve [his sentence]—that is during either a stay of imposition or stay of
execution of sentence.” Id. (quotation omitted). If the defendant has already begun
serving his sentence, the provision no longer applies. Reeseman v. State, 449 N.W.2d
489, 490 (Minn. App. 1989).
The rule’s language on its face and as interpreted in the caselaw convinces us that
Ortiz cannot successfully rest his challenge on it. The rule’s first provision does not apply
because Ortiz’s 365-day sentence was authorized by law. See Minn. Stat. § 609.50,
subd. 2(2) (providing for penalty of imprisonment for not more than one year). Ortiz does
not assert any statutory or related legal error; he contends only that the district court
should have exercised its discretion differently. The rule’s second provision does not
apply because Ortiz’s challenge comes too late. Because he filed his motion nearly five
and a half years after his sentence expired rather than “during a stay of execution or
imposition of sentence,” he is tardy. See Minn. R. Crim. P. 27.03, subd. 9; see also
Hockensmith, 417 N.W.2d at 633.
II
The postconviction statute may support a sentence challenge outside the scope of
rule 27. See Johnson v. State, 801 N.W.2d 173, 176 (Minn. 2011). A claim arises by
statute if direct appellate relief is no longer available, the petitioner argues that his
conviction violated his rights, and the claim is timely. Minn. Stat. § 590.01, subds. 1(1), 4
5 (2012). The one seeking postconviction relief bears the burden of establishing these
elements by a preponderance of the evidence. State v. Rainer, 502 N.W.2d 784, 787
(Minn. 1993).
Ortiz cannot meet this burden under the statute because his challenge is untimely.
Postconviction claims generally fail if they are not filed within two years after the entry
of the conviction if the defendant files no direct appeal. Minn. Stat. § 590.01, subd.
4(a)(1). Ortiz did not directly appeal, and judgment of conviction was entered in June
2006. His petition was filed in December 2013, years after the statute’s two-year
deadline. An untimely petition may be heard if it meets one of five statutory exceptions.
Id., subd. 4(b). The first four exceptions plainly do not apply here. This leaves only the
fifth exception, which acts as a catch-all provision. Under it, the postconviction petition is
excepted from the two-year deadline when “the petitioner establishes to the satisfaction
of the court that the petition is not frivolous and is in the interests of justice.” Id., subd.
4(b)(5). But this interests-of-justice exception applies only when a petitioner cites an
injustice that caused him to miss the deadline. Sanchez v. State, 816 N.W.2d 550, 557
(Minn. 2012). Ortiz does not cite an injustice that caused him to miss the deadline. His
postconviction claim rests instead on the immigration consequences resulting from his
sentence. These consequences did not cause his delayed challenge. And because he knew
or should have known that the claim existed as soon as he was sentenced, his sentencing
was the triggering event for the deadline. See id. at 560. The claim is statutorily untimely.
6 III
We turn finally to Ortiz’s argument that he effectively filed his claim with the
district court, which, he maintains, has the inherent authority apart from the temporally
binding rules and statutes to modify sentences. The supreme court rejected Ortiz’s
expansive reading of the inherent powers of courts more than thirty years ago:
This court, and the vast majority of other courts considering the issue, have determined that courts have no inherent authority to impose terms or conditions of sentence for criminal acts and that the power to prescribe punishment for such acts rests with the legislature. . . . [T]he legislature may restrict the exercise of judicial discretion in sentencing . . . . It may also grant the court power to suspend a sentence and may limit such power to certain cases and deny it as to others.
State v. Olson, 325 N.W.2d 13, 17–18 (Minn. 1982). There may be some theoretical
weight to Ortiz’s argument that, in the absence of legislative prohibition, courts retain
inherent authority to govern “purely judicial functions.” But the argument cannot
persuade because modifying a sentence “is an operation of the rules of criminal
procedure, not inherent judicial power.” Reeseman, 449 N.W.2d at 490–91.
Ortiz’s argument is also foreclosed indirectly by the legislature’s limits on judicial
sentencing power, Olson, 325 N.W.2d at 17–18, including time limits found in the
postconviction statute. Because the postconviction remedy “takes the place of any other
common law, statutory or other remedies which may have been available” previously for
challenging a sentence, Minn. Stat. § 590.01, subd. 2 (2012), Ortiz’s inherent-authority
argument fails.
Affirmed.