State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1964

State of Minnesota,
Respondent,

vs.

Robert Nicholas Heinze,
Appellant.

Filed April 24, 2017
Affirmed in part, reversed in part, and remanded
Bratvold, Judge

Washington County District Court
File No. 82-KX-97-001435

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

Peter Orput, Washington County Attorney, Nicholas A. Hydukovich, Assistant County
Attorney, Stillwater, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Erik I. Withall, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Schellhas , Presiding Judge; Kirk, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
In postconviction proceedings , a ppellant challenged his 68 -month sentence, an
upward durational departure from the presumptive guidelines sentence, which the district
2
court executed at a probation -revocation hearing nearly 17 years after sent encing. In his
postconviction petition, appellant argued that his upward durational departure should be
modified to a presumptive guidelines sente nce because the sentencing record did not
support the durational departure and, alternatively, that he should be permitted to withdraw
his guilty plea because the upward durational departure violated his plea agreement.
On appeal, a ppellant argues that the postconviction court abused its discretion in
determining that his claims were time-barred and declining to address the merits. Because
appellant timely appealed his sentenc e under State v. Fields , 416 N.W.2d 734 (Minn.
1987), and the sentencing record does not establish substantial and compelling
circumstances justifying an upward durational departure, we reverse and remand to the
district court for imposition of a presumpti ve guidelines sentence . Because appellant’s
plea-withdrawal claim is time-barred, the postconviction court did not abuse its discretion
in denying relief on that alternative ground and we affirm.
FACTS
Between July 1996 and January 1997, appellant Robert Heinze engaged in criminal
sexual conduct in Ramsey and Washington Counties with a child who was under the age
of 13. For the Washington County crimes, t he state charged Heinze with two counts of
first-degree criminal sexual conduct under Minn. Stat. § 609. 342, subd. 1(a) (1996),
alleging sexual contact and sexual penetration. After Washington County filed its
complaint, but before the case was adjudicated, Ramsey County charged Heinze with, and
Heinze pleaded guilty to, first-degree criminal sexual conduct, and he began serving an 86-
month executed sentence for that conviction in 1997. In 1998, Heinze pleaded guilty to the
3
Washington County sexual-contact charge in exchange for dismissal of the sexual -
penetration charge and the state’s promise not to seek an upward departure at sentencing. 1
The Washington County presentence investigation (PSI) correctly stated two
different presumptive sentence durations based on whether the district court exercised its
discretion to order Heinze’s sentence consecutive with the Ramsey County sentence. For a
concurrent sentence, the PSI stated that the presumptive sentence was 68 months. For a
consecutive sentence, the PSI stated that the presumptive sentence was 48 months. Minn.
Sent. Guid elines IV (1996). 2 Regardless of whether the sentence was concurrent or
consecutive, the presumptive disposition was commitment to the commiss ioner of
corrections. The PSI recommended staying execution of a 68 -month sentence, with 30
years of probation , wh ich was a downward dispositional departure . The PSI did not
specifically recommend a concurrent or consecutive sentence, nor did it mention a
durational departure. The PSI ’s recommendation of 68 months implies that probation

1 The plea petition does not mention the state’s promise not to seek an upward departure.
But the postconviction court found that the state’s sentencing promise was a term of the
plea agreement , based on stat ements made at the plea hearing. The guilty -plea record
supports the postconviction court’s determination, and the parties do not dispute this factual
determination on appeal.

2 At the time of Heinze’s offense, f irst-degree criminal sexual conduct involving sexual
contact with a victim who was under age 13 was a severity-level seven offense. Minn. Sent.
Guidelines IV , V (1996). Because Heinze h ad a prior felony conviction of first-degree
criminal sexual conduct in Ramsey County, his criminal history score was two. Id.,
II.B.03(1)(a), V. But the guidelines provided that, if a consecutive sentence was imposed,
Heinze’s criminal history score would revert to zero for the Washington County sentence,
resulting in a lower presumptive sentence duration. Id., II.F.02.
4
recommended a concurrent senten ce. The sentencing worksheet, however, incorrectly
stated that the “Presump[tive] Consecutive” sentence was 68 months. (Emphasis added.)
At sentencing in November 1998, Heinze, through counsel, argued for a downward
dispositional departure based on his li mited criminal history, amenability to sex -offender
treatment, and lack of mental capacity. The state did not oppose Heinze’s motion or request
an upward departure but asked to impose the sentence consecutive to the Ramsey County
sentence.
The sentencing court granted Heinze’ s request for a downward dispositional
departure, pronounced a 68-month sentence, consecutive to the Ramsey County sentence,
and stayed execution for 30 years, subject to conditions. But the sentencing court did not
state that it was d eparting durationally or provide reasons for th e upward durational
departure. The sentencing court filed a departure report, on which it checked the box for
dispositional departure, but not the box for durational departure. The departure report stated
that the sentence imposed was “68 months, execution stayed, consecutive to current
sentence, for the reasons indicated on the back.”3 On the back of the report, the sentencing
court checked two boxes for aggravating factors and five boxes for mitigating factor s.
Heinze did not pursue a direct appeal.

3 The sentencing court also noted that “[t]he Count y Attorney believes the consecutive
stay on a presumptive commit is not a downward departure, but I am submitting this report
because reasonable minds could differ on that point.” We conclude that the consecutive
sentences were permissive and required no departure findings. Minn. Sent. Guidelines II.F
(1996).
5
In July 2002, Ramsey County released Heinze on supervised release and he began
serving his stayed Washington County sentence. While on release, Heinze moved to Green
Bay and his supervision was transferred to Wisc onsin. In November 2010, Heinze was
convicted in Wisconsin of second -degree sexual assault of a child and was sentenced to
five years in prison. After Wisconsin release d Heinze from prison , he appeared in
Washington County for probation-revocation proceedings in April 2015.
The same judge who sentenced Heinze in 1998 presided over his probation -
revocation hearing on May 7, 2015. Initially, the court discussed Heinze’s sentence, stating
“I failed to utter the words [at sentencing] that at the same t ime that I was departing
downward dispositionally, I was also departing upwards durationally. Though, when I
filled out the guidelines departure report I did succeed in checking the necessary boxes for
the findings to support the aggravated durational departure.” Heinze argued the sentencing
court did not “establish a sufficient factual basis for an upward durational departure. ”
Heinze pointed out that, at sentencing, the court found “the mitigating factors override the
aggravating factors.” Without filing a written motion, Heinze orally moved to modify his
sentence to a presumptive durational sentence. The court declined to modify the sentence,
stating it intended in 1998 to impose an upward durational departure, and the two
aggravating factors listed on th e departure report supported the 20 -month upward
durational departure.
Regarding the revocation issue, the state requested execution of the 68 -month
sentence. Heinze, through counsel, admitted to violating the terms of his probation, but
explained he had not had a chance to prove that he could be successful in the community
6
because he had not completed sex -offender treatment. Heinze also claimed that he could
find suitable employment and housing in Wisconsin if the court reinstated his stayed
sentence. The court denied the state’s request to execute the sentence and reinstated
Heinze’s stayed sentence subject to additional conditions, including jail time.
After the state learned that Heinze made misrepr esentations about treatment,
housing, and employment options at the May 7 hearing, the district court reconsidered its
revocation decision and executed the previously stayed 68 -month sentence in September
2015. On December 7, 2015, Heinze timely filed this appeal. Before briefs were submitted,
Heinze moved to stay this appeal to pursue postconviction relief and “to present additional
evidence to the district court regarding a challenge to the durational departure.” This court
granted the stay, and Heinze f iled a postconviction petition, arguing that his senten ce
should be modified to a presumptive guidelines sentence because the upward durational
departure lacked a factual basis in the 1998 sentencing record , and, alternatively, seeking
to withdraw his plea because the upward durational departure violated his plea agreement.4
The postconviction court determined that Heinze’s plea agreement included the
state’s promise not to pursue an aggravated sentence, which “in effect, [was] an agreement”
to a presumptive guidelines or lesser sentence. The court concluded the upward durational
departure “resulted in re jection of the plea agreement.” Nonetheless, the court denied

4 Heinze also claimed that his conditional-release term on his sentence should be amended
from ten to five years, and that his stayed sentence should be reinstated. The postconviction
court granted He inze’s request to amend the conditional -release term to five years but
denied his request for reinstatement of probation. Minn. Stat. § 609.346, subd. 5(a) (1996)
(stating Minn. Stat. § 609.342 carries a five-year mandatory conditional-release term).
7
Heinze’s plea -withdrawal and sentence -modification request s as untimely under Minn.
Stat. § 590.01, subd. 4(a) (2014) . This court then dissolved the stay and reinstated this
appeal.
D E C I S I O N
On appeal, Heinze argues that his 1998 sentence was an unlawful upward durational
departure because the sentencing court did not identify substantial and compelling
circumstances justifying the departure, and, alternatively, he is entitled to withdraw his
plea because the upward durational departure violates the plea agreement. We analyze each
claim separately.
I. The postconviction court abused its discretion in denying Heinze’s moti on to
correct the illegal upward durational departure.

When a defendant files a direct appeal and then moves to stay the appeal to pursue
postconviction relief, “we review the postconviction court’s decisions using the same
standard that we apply on direc t appeal.” State v. Beecroft, 813 N.W.2d 814, 836 (Minn.
2012). “We review legal issues de novo, but on factual issues our review is limited to
whether there is sufficient evidence in the record to sustain the postconviction court’s
findings.” Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015) (citations omitted).
Preliminarily, we note that, when the probation-revocation court executed Heinze’s
sentence, it denied Heinze’s oral motion to m odify the upward durational departure to a
presumptive guidelines se ntence because the two aggravating factors listed on the
departure report supported the departure. In the postconviction proceedings, however, the
court denied Heinze’s sentencing challenge after concluding it was time -barred under
8
Minn. Stat. § 590.01, subd. 4(a). We will first address the postconviction court’s time -bar
decision before discussing the merits.
On appeal, the state concedes, and we agree, that Heinze’s sentencing challenge is
timely under State v. Fields, which held that a probationer may challenge his sentence for
the first time at a probation -revocation hearing through a “simple motion,” and, if
necessary, directly appeal the probation-revocation decision. 416 N.W.2d at 736; Minn. R.
Crim. P. 27.04, subd. 3(4). This so-called “Fields sentencing appeal” is an exception to the
time limitations for direct appeals and postconviction petitions. Fields, 416 N.W.2d at 736;
see also State v. Hockensmith , 417 N.W.2d 630 , 633 (Minn. 1988) ( noting rule 27.03 ,
subdivision 9, gives the district court discretion to modify a sentence “ before or
simultaneous with revoking the stay of execution ”). Heinze’s sentencing challenge is a
timely Fields sentencing appeal. 5 Thus, the postconviction court abused its discretion in
concluding that Heinze’s sentencing claim was time -barred, and we will consider the
merits.
The Minnesota Sentencing Guidelines establish sentencing ranges that are
“presumed to be appropriate.” State v. Soto, 855 N.W.2d 303, 308 (Minn. 2014) (quotation
omitted). The sentencing court must impose a sentence within the presumptive range unless
“identifiable, substantial, and compelling circumstances” distinguish the case to overcome

5 Heinze filed this appeal within the applicable time limit for appealing probation -
revocation de cisions. Minn. R. Crim. P. 27.04 , subd. 3(4)(b) (providing that probation
revocation appeals are subject to same procedures as sentencing a ppeals); Minn. R. Crim.
P. 28.05, subd. 1(1) (providing that a defendant must file a notice of appeal within 90 days
of judgment and sentencing).
9
the presumption in favor of the guidelines sentence. Id. Therefore, a sentencing court may
impose an upward departure only if : (a) aggravating circumstances exist, and (b) those
circumstances establish a substantial and compelling reason not to impose a guidelines
sentence. Id. This court reviews a sentencing court’s decision to depart from a presumptive
sentence for an abuse of discretion. Id. at 307–08.
When a sentencing court departs from a presumptive sentence, it must make
findings supporting the departure. Minn. R. Crim. P. 27 .03, subd. 4(C). Appellate courts
are bound by the sentencing record to determine whether substantial and compelling
reasons support a sentencing departure. State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003).
On appeal, the following rules apply:
1. If no reasons for departure are stated on the record at the
time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court will
examine the record to determine if the reasons given justify the
departure.
3. If the reasons given justify the departure, the departure will
be allowed.
4. If the reasons given are improper or inadequate, but there is
sufficient evidence in the record to justify departure, the
departure will be affirmed.
5. If the reasons given are improper or inadequate and there is
insufficient evidence of record to justify the departure, the
departure will be reversed.

Id. at 515 (emphasis and quotation omitted).
Here, the sentencing record establishes that the court identified aggravating factors,
including the victim’s vulnerability and multiple incidents of criminal sexual conduct
involving the same victim. The court commented that it would consider these aggravating
factors “ if the Court chose to depart upwards from the guideline sentence.” (Emphasis
10
added.)6 The court then identified mitigating factors, including lack of substantial capacity
for judgment, amenability to treatment, expression of remorse and acceptance of
responsibility, and the length and intensity of probation, and concluded that they supported
a downward dispositional departure.
Heinze argues that his upward durational departure is invalid because the sentencing
court did not expressly state it was imposing a durational departure, and the record does
not establish substantial and compelling reasons to support the departure. Heinze relies on
State v. Thieman , which reversed an upward durational departure and remanded for
imposition of a presumptive guidelines sentence because the sentencing record established
that the court mistakenly imposed an upward durational departure instead of a guidelines
sentence, and the record did not provide “any other rationale which would support a
departure.” 439 N.W.2d 1, 7 (Minn. 1989); see also State v. Foreman, 680 N.W.2d 536,
540–41 (Minn. 2004) (stating that “the proper remedy” for a court’s mistaken imposition
of an upward durational departure is modification of the sentence to a presumptive
guidelines sentence).7

6 No Blakely analysis is necessary. See Blakely v. Washington, 512 U.S. 296, 313–14, 124
S. Ct. 2531, 2543 (2004) (holding a criminal defendant is entitled to have a jury determine
whether aggravating factors exist for a sentencing departure). Heinze was sentenced before
Blakely was decided. In State v. Losh, the supreme court held that Blakely does not apply
retroactively in a Fields sentencing appeal brought after the expiration of the 90 -day
limitations period for direct appeals. 721 N.W.2d 886, 895 (Minn. 2006).

7 Foreman is similar to Heinze’s case in a number of important respects. The sentencing
court in Foreman imposed an upward durational departure without stating an intent to do
so or reasons for the departure on the record. 680 N.W.2d at 540. Also, in Foreman, the
state did not move for an upward durational departure, the presentence investigation report
did not recommend a durational departure, and the sentencing court did not provide
11
The state acknowledges that the sentenci ng court “did not explicitly state at that
time that its sentence constituted an upward durational departure .” Relying on State v.
Coleman, the state nevertheless contends that, because the aggravating factors identified at
sentencing could have supported an upward durational departure, the sentencing judge was
permitted to clarify her intent at the probation -revocation hearing and execute the upward
departure. 731 N.W.2d 531, 533, 536–37 (Minn. App. 2007), review denied (Minn. Aug. 7,
2007) (remanding to the district court for resentencing with instructions to impose either a
guidelines sentence or the upward durational departure originally imposed at sentencing
“if the departure is supported by departure reasons stated on the existing record”). We are
not persuaded.
We agree with Heinze’s reading of the sentencing record, which establishes that the
court identified aggravating and mitigating factors only with regard to the downward
dispositional departure. The state did not move for an upward durational dep arture, the
presentence investigation report did not recommend an upward durational departure, the
sentencing worksheet incorrectly stated that the “Presump[tive] Consecutive” sentence was
68 months, the sentencing court did not provide presentence notice of a possible durational
departure, and the sentencing court filed a departure report, but only checked the box for a
dispositional departure. The sentencing record only mentions an upward departure in
passing, when the court states that it “could” conside r aggravating factors if it “chose” to
depart upward. But the record shows that the court imposed only a dispositional departure

presentence notice of an intent to depart durationally. Id. The only material diff erence
appears to be that no departure report was filed in Foreman.
12
and mistakenly used the 68 -month presumptive durational sentence for a concurrent
sentence, rather than a 48-month middle-of-the-box presumptive durational sentence with
a zero criminal history score for a consecutive sentence. We conclude that the court failed
to cite reasons on the record at sentencing to support the upward durational departure.
Therefore, no departure is allowed.
We do not question the sentencing judge’s intent to depart upward as stated at the
probation-revocation hearing. But we are bo und to review the sentencing record to
determine whether substantial and compelling circumstances support an upward durational
departure. Accordingly, for the reasons discussed, we reverse the upward durational
departure and remand to the district court with instructions to impose a guidelines sentence.
We note that it is within the district court’s discretion to impose any sentence within the
presumptive guidelines range and we provide no opinion as to what guidelines sentence is
appropriate. See State v. Delk, 781 N.W.2d 426, 428 (Minn. App. 2010) (“[A]ny sentence
within the presumptive range for the convicted offense constitutes a presumptive
sentence.”).
II. The postconviction court did not abuse its discretion in determining Heinze’s
plea-withdrawal claim is time-barred.

A motion to withdraw a guilty plea after sentencing under Minn. R. Crim. P. 15.05
must be brought in a postconviction petition and, therefore, is subject to the postconviction
statute’s time restrictions . Lussier v. State , 821 N.W.2d 581, 5 86 n.2 (Minn. 2012); see
Minn. R. Crim. P. 15.05, subd. 1 (providing that a defendant may withdraw a guilty plea if
“withdrawal is necessary to correct a manifest injustice”). Unless an exception applies, a
13
postconviction petition must be filed within two years of “the later of: (1) the entry of
judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate court’s
disposition of petitioner’s direct appeal.” Minn. Stat. § 590.01, subd. 4(a) (2014). The two-
year deadline applies to all convictions that became final after August 1, 2005. 2005 Minn.
Laws ch. 136, art. 14, § 13, at 1097–98. Under the statute’s safe -harbor provision, a ny
person whose conviction became final before that date was permitted to file a
postconviction petition until August 1, 2007. Id.
Heinze’s conviction became final in February 1999, 90 days after sentencing. Minn.
R. Crim. P. 28.02, subd s. 2(3), 4(3)(a). Because Heinze’s conviction became final before
August 1, 2005, he had until August 1, 2007, to file a postconviction petition. Heinze filed
this postconviction petition in 2016, well beyond the 2007 deadline. Thus, unless an
exception applies, Heinze’s plea-withdrawal claim is time-barred.
A. The interests-of-justice exception does not apply.
Heinze asserts the interests-of-justice exception applies to save his plea-withdrawal
claim. We disagree for at least two reasons. First, Heinze’s petition did not invoke any
exception to the two-year time-bar. See Brocks v. State, 883 N.W.2d 602, 604 (Minn. 2016)
(stating that a petitioner must “ invoke an exception in the petition”) . In determining
whether a petition invokes an exception, courts “l iberally construe” the petition . Roby v.
State, 787 N.W.2d 186 , 191 (Minn. 2010). Heinze’s petition does not mention the
postconviction time-bar or allege any reason for waiting nearly 17 years to challenge the
plea. In fact, Heinze first invoked the interests-of-justice exception in his reply brief in this
appeal.
14
Second, although Heinze did not raise the interests-of-justice exception in his
petition, the postconviction court analyzed it and found that it did not apply because
Heinze’s plea -withdrawal claim arose at the 1998 sentencing hearing. We agree. A
petitioner must file a petition invoking an exception “within 2 years of the date that the
claimed exception arose.” Brocks, 883 N.W.2d at 604. A claim under the interests -of-
justice exception “arises on the dat e of an event that establishes a right to relief in the
interests of justice.” Bee Yang v. State, 805 N.W.2d 921, 925 (Minn. App. 2011) , review
denied (Minn. Aug. 7, 2012) . The date on which the claim “arises” is determined
objectively based on when the petitioner “knew or should have known ” that the claim
existed, not when the petitioner subjectively knew about the claim. Sanchez v. State, 816
N.W.2d 550, 5 60 (Minn. 2012). “A postconviction court’ s determination of when a
petitioner knew or should have kno wn about his or her claim is reviewed und er a clearly
erroneous standard.” Bolstad v. State , 878 N.W.2d 493, 497 (Minn. 2016). The
postconviction court did not clearly err in determining that Heinze knew or should have
known that the durational departure v iolated the plea agreement in 1998 when the
sentencing court imposed but stayed the 68-month sentence.
Heinze argues that his plea -withdrawal claim did not arise until the probation -
revocation hearing, because only then did the court make “it clear that [ it] intended to
impose an upward departure.” Heinze’s argument is without merit. Although the
sentencing court did not expressly state that it was imposing an upward durational
departure, it pronounced a 68 -month stayed sentence, which was a 20 -month upwar d
durational departure. Therefore, Heinze either actually knew or objectively should have
15
known that the sentence violated the plea agreement at the time he was sentenced in 1998.
Notably, because Heinze was permitted to file a postconviction petition unti l 2007 under
the statute’s safe -harbor provision, he had nearly nine years to realize that his sentence
violated the plea agreement and to file a petition. Accordingly, the postconviction court did
not clearly err in determining that Heinze’s claimed exception arose in 1998, and therefore
his petition is untimely under the interests-of-justice exception.
B. Heinze’s plea-withdrawal claim does not fall within the scope of review
of his timely Fields sentencing appeal.

Heinze also argues that his plea -withdrawal claim is timely as part of his Fields
sentencing appeal. The state incorrectly likens this Fields sentencing appeal to a rule 28.05
direct appeal of “the sentence imposed or stayed .” Minn. R. Crim. P. 28.05, subd . 2.8 In
Losh, the supreme court held that a Fields sentencing appeal is not a direct appeal of the
sentence imposed. 721 N.W.2d at 894–95. Here, Heinze’s sentencing challenge proceeded
under rule 27.03, subdivision 9 . A challenge that goes “beyond the sen tence” cannot be
brought under rule 27.03, subdivision 9, and must be raised either in a direct appeal or
postconviction petition. State v. Coles, 862 N.W.2d 477, 480 (Minn. 2015). Unlike
Heinze’s request for a modified sentence, his plea -withdrawal claim requests reversal of
his conviction, which has been final for nearly 17 years.

8 Rule 28.05, subdivision 2, defines the scope of review of an appeal of “the sentence
imposed or stayed to determine whether the sentence is inconsistent with statutory
requirements, un reasonable, inappropriate, excessive, unjustifiably disparate, or not
warranted by the sentencing court’s findings of fact.”

16
The supreme court recently distinguished a defendant’s right to challenge a sentence
under rule 27.03, subdivision 9, and the right to challenge a conviction, which is subject to
the postconviction statute’s time limitations. Reynolds v. State, 888 N.W.2d 125, 132 –33
(Minn. 2016). This court has also acknowledged that “the postconviction two -year
limitations provision serves the public interest in finality, [but] that interest is not as strong
when it is the finality of the sentence that is at issue rather than the finality of the
conviction.” Vazquez v. State, 822 N.W.2d 313, 319 (Minn. App. 2012). “[T]he reversal of
a conviction may seriously affect the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotation omitted). Based on our precedent establishing the scope of
review from a rule 27.03, subdivision 9, motion, we conclude that Heinze’s plea -
withdrawal cl aim falls outside the scope of his Fields sentencing appeal because it
implicates the conviction and goes “beyond the sentence.” Accordingly the postconviction
court did not abuse its discretion in denying Heinze’s plea-withdrawal claim as untimely.
Affirmed in part, reversed in part, and remanded.