Manuel Enrique Muro Martinez, petitioner, Appellant,

This opinion will be unpublished and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
A17-0663

Manuel Enrique Muro Martinez, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 26, 2017
Affirmed
Rodenberg, Judge

Olmsted County District Court
File No. 55-K0-99-002821

Terry Duggins, Duggins Law Firm, Arden Hills, Minnesota (for appellant)

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

Mark A. Ostrem, Olmsted County Attorney, Eric M. Woodford, Deputy County Attorney,
Rochester, Minnesota (for respondent)

Considered and decided by Connolly , Presiding Judge; Ross, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Manuel Enrique Muro Martinez appeals from the district court’s denial
of his motion to correct a sentence under Minn . R. Crim. P. 27.03, subd. 9, after his
conviction for second-d egree murder under Minn. Stat. § 609.19 (Supp. 1995), and the

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district court’s upward departure from the se ntencing guidelines. He argues that the
sentence was an upward durational departure from the Minnesota Sent encing Guidelines
that is not “authorized by law,” and he challenges the district court’s determination that his
request for relief is time-barred. We affirm.
FACTS
In May 1996, appellant co mmitted a violent murder. Th e state charged him with
four counts of first-degree murder and one count of second-d egree murder. On
September 8, 2000, appellant pleaded guilty to second-degree murder as part of a
negotiated plea agreement under which the state dismissed the first-degree murder charges.
The agreement further provided that appellant would be sentenced to 40 years (480 months)
in prison. Although the sentencing guidelines1 indicated a presumptive sentence length of
346 months, based on appellant’s criminal history score of two and an offense severity
level of ten, Minn. Sent. Guidelines, IV (1996), the parties agreed to an upward departure
to the statutory maximum sentence of 480 m onths, Minn. Stat. § 609.19. Had appellant
been convicted of first-degree murder, he wo uld have faced a possible sentence of life in
prison without the possibility of parole.
At the sentencing hearing on October 17, 2000, appellant’s attorney explained that
“this was a counseled plea,” negotiated over several months . Appellant understood that
the original charges exposed him to a life sentence without the possibility of parole. And,

1 This court applies the sentencing guidelines and related case law in effect at the time of
the offense “to determine the correctness of a sentence.” Townsend v. State, 834 N.W.2d
736, 739 (Minn. 2013).

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according to his attorney, “with that in mind [he] entered into this plea agreement.” After
reviewing the facts of the case as presented to the grand jury, and considering the plea
agreement, the district court sentenced appellant to 480 mont hs in prison. The district
court’s departure report indicates that th e reasons supporting the upward sentencing
departure were the plea agreement authorizing it and particular cruelty to the victim.
Twelve years later, appellant filed a pro se motion to modify the sentence. The
district court considered the motion to more properly be a petition for postconviction relief,
and wrote a letter to appellant recommending that appellant seek assistance from the state
public defender. Appellant filed an appeal, but because the district court had not made any
appealable order, we dismissed for lack of jurisdiction.
In 2016, appellant again filed a moti on seeking sentence modification under
rule 27.03, subdivision 9. The district court considered the motion as a petition for
postconviction relief and denied it as time-b arred. Appellant promptly moved for
reconsideration, which the district court also denied.
This appeal followed.
D E C I S I O N
I. The district court properly deemed appe llant’s motion to be a request for
postconviction relief.

Appellant appeals the district court’s denial of his motion to modify the 480-month
sentence under Minn. R. Crim. P. 27.03, subd. 9. The district court construed his motion
as a petition for postconviction relief and denied it as beyond the two-year time limit in the
postconviction statute. Minn. Stat. § 590.01, subd. 4(a)(1) (2016). We review the denial

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of a postconviction petition fo r abuse of discretion. Reed v. State, 793 N.W.2d 725, 729
(Minn. 2010).
We first analyze whether appellant’s motion concerns a request for correction of an
illegal sentence under rule 27.03, or instead, a request for postconviction relief under Minn.
Stat. § 590.01 (2016). Under rule 27.03, subd ivision 9, a defendant may, “at any time,”
move to “correct a sentence not authorized by law.” Minn. R. Crim. P. 27.03, subd. 9.
Under Minn. Stat. § 590.01, s ubd. 1(1), a convicted defenda nt may petition the district
court for postconviction relief if “the convi ction obtained or the sentence or other
disposition made violated the [defendant’s] rights under the Constitution or laws of the
United States or of the state, ” but such a petition must be ma de within the two-year time
limit provided by statute. Id., subd. 4(a)(1). Minn. Stat. § 590.01 provides a much wider
scope of relief than the criminal rule, but is limited to timely petitions. Rule 27.03,
subdivision 9, on the other ha nd, is “plainly ‘limited to . . . modifying a sentence.’”
Johnson v. State, 877 N.W.2d 776, 779 (Minn. 2016). On separation-of-powers grounds,
“the two-year limit [in sec tion 590.01, subdivisi on 4(a),] does not apply to motions
properly filed under” rule 27.03, subdivision 9. Vasquez v. State , 822 N.W.2d 313, 318
(Minn. App. 2012).
A motion to modify a sentence reached as part of a negotiated plea agreement is
properly filed only under Minn. Stat. § 590.01 as a petition for postconviction relief.
Johnson, 877 N.W.2d at 778 (quoting Wayne v. State, 870 N.W.2d 389, 391 (Minn. 2015))
(explaining that such a motion is, “in substance, a challenge to a criminal conviction” so
the offender may not use rule 27.03, subdivi sion 9, “to circumvent the procedural

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requirements of the postconviction statute”). The supreme court in Johnson applied the
same reasoning it used in State v. Coles , 862 N.W.2d 477 (Min n. 2015), where the
requested relief was a reduced sentence despite a negotiated plea agreement. Id. at 779.
Addressing only the sentence in such a circ umstance amounts to a request to receive the
benefits, but not the consequences, of a plea agreement. In such a circumstance, it is proper
that the district court consider whether to permit the state to “wit hdraw from the plea
agreement and move forward to trial on [the] original charges.” Id. When the relief sought
implicates more than the sent ence itself, a motion purportedl y brought under rule 27.03,
subdivision 9, is properly considered as a petition for postconviction relief under Minn.
Stat. § 590.01. So it is here: appellant’s request for relief from his sentence implicates the
underlying plea agreement, which had the effect of relieving appellant of the risk of a life-
without-parole sentence. The district court properly evaluated appellant’s request for relief
under Minn. Stat. § 590.01.
II. Appellant’s postconviction relief request is time-barred.
Minnesota Statute section 590.01, subdi vision 4(a)(1), requi res a petitioner to
request postconviction relief within two years of the date the sentence was entered. Minn.
Stat. § 590.01, subd. 4(a)(1). For convictions that became final before August 1, 2005, the
deadline to file a petition was August 1, 2007. 2005 Minn. Laws ch. 136, art. 14, § 13 at
1098 (“Any person whose conviction became fi nal before August 1, 2005 shall have two
years after the effective date of this act to file a petition for postconviction relief.”). For
petitions not filed within the two-year period , relief may still be available if one of the
exceptions in subdivision 4(b) applies, including an assertion of a new interpretation of law

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and in the interests of justice. Minn. St at. § 590.01, subd. 4(b). Yet, “[a]ny petition
invoking an exception provided in paragraph (b) must be filed within two years of the date
the claim arises.” Id., subd. (4)(c); see Sanchez v. State, 816 N.W.2d 550, 557-58 (Minn.
2012) (applying the two-year time limit to an interests-of-justice claim pursuant to Minn.
Stat. § 590.01, subd. 4(b)(5)).
As discussed, appellant requests that his sentence, arrived at by a plea agreement,
be reduced. Therefore, it is evaluated as a request for postconviction relief. Appellant’s
conviction was entered in Octobe r 2000, nearly five years before the time bar of section
590.01, subdivision 4(a), went into effect, and seven year s before the August 1, 2007
deadline. Appellant’s first request for relie f was filed on Septem ber 12, 2012, and the
second was on August 10, 2016. Both requests for relief came years after the August 1,
2007 deadline. See 2005 Minn. Laws ch. 136, art. 14 § 13 at 1098. Both of appellant’s
requests were untimely.
Appellant argues that he qualifies for two exceptions to the procedural two-year bar.
First, under subdivision 4(b)(3), he asserts a new interpretation of federal or state
constitutional or statutory law by either the United States Supreme Court or a Minnesota
appellate court. Second, un der subdivision 4(b)(5), he argues that his petition is not
frivolous and is in the interests of justice. Neither of these exceptions applies.
Appellant argues that two separate new-in terpretations-of-law issues apply to his
case. First, he argues that the Unite d States Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), extending Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348 (2 000), ought to apply to his sentence. He argues that Blakely

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clarified the Apprendi holding that “any fact [extending a sentence] . . . must be submitted
to a jury.” Apprendi, 530 U.S. at 476 (quotation omitted). Appellant also argues that the
Minnesota Supreme Court decision in State v. Misquadace also constitutes a new
interpretation of state law requiring more than the reasons given here by the district court
in support of the upward sentencing departure. 664 N.W.2d 65, 71 (Minn. 2002) (quoting
Minn. Sent. Guidelines II.D.04 cmt. (1998)).
Misquadace was decided in 2002, and Blakely was decided in 2004. These
decisions came down two and four years, resp ectively, after appellant’s conviction and
sentencing. Appellant argues that the ho ldings in these cases should be applied
retroactively to require the district court to grant him a separate hearing on the upward
departure sentence. The supreme court in Misquadace made clear that the rule it
established is not retroactive. See State v. Lewis , 656 N.W.2d 535, 537 (Minn. 2003)
(stating that in Misquadace, the supreme court expressly limited its retroactive application).
And, the Court in Blakely “announced a new rule of fe deral constitutional criminal
procedure and [such rules] apply to cases pending on direct review or not yet final but not
to cases on collateral review such as a petition for postconviction relief.” State v. Hughes,
758 N.W.2d 577, 580 (Minn. 2008).
Minn. Stat. § 631.20 (1994) existed in its current form in 1996 , the date of the
offense. Minnesota Statute section 631.20 requires a court to hear the testimony of
“witnesses examined in open court” to determine the aggravating or mitigating factors that
may impact the sentence. Minn. Stat. § 631.2 0. Here, the district court did not hear
testimony in determining the upward departure on which the parties had agreed. Instead,

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it considered the grand jury testimony, in addition to the parties’ plea agreement, and found
aggravating factors justifying the agreed-upon upward departure. There was no objection
to the district court’s use of the grand jury testimony. In context, the parties implicitly
waived Minn. Stat. § 631.20’s provision of an open-court hearing.
Moreover, and even if the holdings in Misquadace and Blakely applied retroactively,
and despite the existence of section 631.20 at the time appellant was sentenced, the
statutory two-year deadline concerning all of these arguments expired long before
appellant’s first motion in 2012 challenging his sentence. See Minn. Stat. § 590.01, subd.
4(a)(1) (providing a petition for postconviction relief may be filed no more than two years
after the entry of judgment of conviction or sentence); see also 2005 Minn. Laws ch. 136,
art. 14, § 13 at 1098 (providi ng that a postconviction petiti on regarding a conviction that
became final before August 1, 2005 must be filed before August 1, 2007). Appellant’s
arguments based on Misquadace, Blakely, and Minn. Stat. § 631.20 are both time-barred
and meritless.
Second, appellant argues that his moti on (considered as a postconviction petition)
triggers the “interests of justice” exception under Minn. Stat. § 59 0.01, subd. 4(b)(5),
because the district court failed to provide a separate hearing when it imposed an upward
departure sentence and, instead, relied on the grand jury transcript and the plea agreement
made by the parties.
Appellant does not explain how this claime d violation of the statute caused him to
miss the two-year postconviction-petition deadline. See Sanchez v. State, 816 N.W.2d 550,
560 (Minn. 2012) (“[T]he intere st-of-justice exception is tri ggered by an injustice that

9
caused the petitioner to miss the primary deadline in [Minn. Stat. 590.01, subd. 4(a).”).
Appellant has not demonstrated that the inte rests-of-justice exception excuses his late
filing.
Moreover, and aside from the petition’s un timeliness, the postconviction court
concluded that “there is nothing unjust about the sentencing [appellant] received.” At the
time the district court considered the grand jury testimony, the requirement under Blakely
for a separate sentencing trial did not exist. Therefore, the district court’s choice to rely on
the grand jury testimony concerning the extraordin ary nature of this murder is not error.
Neither party objected to the sentencing court’s consideration of the grand jury testimony
at the time of sentencing, and the sentenci ng court’s considerati on of that testimony
supported the plea agreement reached by the parties.
We consider the plea agreement as the di strict court did; it was “voluntarily and
accurately entered into after lengthy negotiations.” Appellant testified that he understood
the 40-year sentence to be “a departure, mean ing it’s greater than the sentence that the
Minnesota Sentencing Guidelines calls for.” After a brief discussion of the calculation of
appellant’s criminal-history points, counsel asked appellant about the grounds for the
upward departure to which the parties agreed. Appellant had many opportunities to seek
clarification, from the translation of documen ts to the chance to ask questions of his
attorney and the court. But appellant challenged neither the plea agreement nor its impact
on his sentence until September 2012 and again in August 2016. Despite all the briefing
and argument, both to the district court and on appeal, appellant failed to submit an affidavit
explaining why he waited so many years to file a motion. Without demonstrating when he

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knew or should have known of his interests-of-justice claim, appellant cannot benefit from
this exception.
The district court did not abuse its discretion in denying appellant’s postconviction
relief motion. We therefore affirm the district court’s well-reasoned order in which we see
no legal error.
Affirmed.