State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0066

State of Minnesota,
Respondent,

vs.

Ernest Carter,
Appellant.

Filed March 25, 2019
Reversed and remanded
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CR-16-1791

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Brittany D. Lawon n, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, F. Richard Gallo, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Clear y, Chief Judge; Halbrooks, Judge; and Rodenberg,
Judge.

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U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant challenges the district court’s denial of his petitio n to correct a sentence
not authorized by law, arguing that the court lacked the authority to withdraw its sentence
after sentencing him. We reverse and remand.
FACTS
On January 16, 2016, Minneapolis police officers initiated a t raffic stop and, during
the stop, appellant Earnest Carter admitted that he possessed a handgun. Based on Carter’s
criminal history, which includes a third-degree-assault convict ion, respondent State of
Minnesota charged Carter with felon-in-possession of a firearm (felon-in-possession). On
April 5, Carter filed a petition to enter into a guilty plea in exchange for a 60-month
sentence, and he pleaded guilty at a plea hearing on the same day. The district court found
Carter guilty of felon-in-posse ssion, and released him to be wi th his newborn child on
“pretty strict conditions,” including a requirement that he “appear for sentencing.”
At the scheduled May 20, 2016 sentencing hearing (first sentenc ing hearing), the
district court denied Carter’s motion to delay sentencing so that he could assist his family
in moving. The court entered a conviction on Carter’s guilty p lea, and sentenced him to
60 months in prison. Relevant to this appeal, Carter then asked the court to further delay
sentencing, and it granted his request, stating: “And I’m withd rawing the sentence that I
just pronounced, and the sentencing will be continued until Monday the 23rd . . . It will be
exactly what we talked about today as long as you show up.” Carter did not appear at the
May 23 hearing (second sentencing hearing). At a May 27 rescheduled sentencing hearing

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(third sentencing hearing), the state moved to increase Carter’s sentence due to his failure
to appear at the second sentencing hearing, and the court sente nced him to 66 months. In
its warrant of commitment order, the court memorialized its sen tence of 66 months, and
listed the third sentencing hearing, May 27, 2016, as the date of sentencing.
On October 5, 2018, Carter filed a motion to correct his senten ce, alleging that the
66-month sentence resulted in a “second sentence” that the district court was not authorized
to impose. The court denied Car ter’s motion, concluding that t here was “no basis in the
record to correct [Carter’s] sentence.”
This appeal follows.
D E C I S I O N
Carter challenges his sentence, arguing that it amounts to a se ntence unauthorized
by law because the district court lacked the authority to resen tence him. A court “may at
any time correct a sentence not authorized by law.” Minn. R. Crim. P. 27.03, subd. 9. “For
a sentence to be unauthorized, it must be contrary to law or ap plicable statutes.” State v.
Overweg, 922 N.W.2d 179, 182 (Minn. 2019) (quotation omitted). This c ourt reviews a
district court’s denial of a motion to correct a sentence for an abuse of discretion. Id.
Carter argues that the district court executed his sentence upo n its oral
pronouncement of a 60-month sentence at the first sentencing he aring, thereby relieving
the court of any authority to withdraw and then modify his sent ence, except for those
reasons permitted under the rules of criminal procedure. The state concedes this issue, and
concedes that it is outcome determinative, arguing that we should issue an expedited order

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reversing and remanding the case for imposition of the original 60-month sentence. We
agree.
“Whereas the power to define and to fix the punishment for crimes is vested in the
legislature, the imposition of the sentence within the limits prescribed by the legislature is
purely a judicial function.” State v. Ford, 539 N.W.2d 214, 230 (Minn. 1995) (quotation
omitted). Once a district court executes a sentence, it has “n o authority to modify a
sentence.” Id. at 231 (concluding that district court erred by delegating authority to modify
sentence to Department of Corrections). “The [district] court’ s discretion to sentence is
built into the statutes authoriz ing sentencing. That discretio n vanishes once the sentence
is executed.” Reesman v. State, 449 N.W.2d 489, 490 (Minn. App. 1989).
In State v. Staloch , the district court orally pronounced a sentence for a DWI
violation, but made no mention of probation; eight months later , defendant was again
arrested for DWI, pleaded guilty, and the court revoked his pro bation and sentenced him
to 30 days in jail. 643 N.W.2d 329, 330 (Minn. App. 2002). Th is court concluded that
because the district court did not orally pronounce probation a s part of the defendant’s
sentence, and its oral pronouncement was not ambiguous, the ora l pronouncement
controlled over the sentencing order, which included probation. Id. at 331. We stated that
only when an “orally pronounced sentence is ambiguous,” does th is court look to the
written-commitment order. Id. (quotation omitted). We rejected the state’s argument that
the court’s failure to mention probation amounted to a clerical error because “the oral
pronouncement controls,” and the fact “that the district court may have intended to grant a
conditional stay is of no import where the actual sentence pronounced is clear.” Id. at 332;

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see Minn. R. Crim. P. 27.03, subds. 9, 10 (stating that a district court “may modify a
sentence during a stay of execution or imposition of sentence if the court does not increase
the period of confinement,” and it may correct “[c]lerical mist a k e s . . . a r i s i n g f r o m
oversight or omission”).
Similarly here, the district court’s oral sentence at the first sentencing hearing is
unambiguously clear: “Ernest Carter, you’ve been convicted of t hat crime, therefore you
are committed to the custody of the Commissioner of Corrections for a total of 60 months.”
Because a sentence is “executed” upon a court’s oral pronouncem ent, Carter received an
executed 60-month sentence upon the court’s oral pronouncement of such. That the court
may have intended to withdraw, withhold, or stay sentencing until Carter had an additional
opportunity to assist his family, “is of no import” because the court’s actual sentence was
clear. Staloch, 643 N.W.2d at 332; cf. State v. Weisberg, 473 N.W.2d 381, 382-83 (Minn.
App. 1991) (concluding that district court erred by revoking probation where the defendant
was orally warned not to gamble, but the court failed to adequately state what legal conduct
would result in revocation), review denied (Minn. Oct. 11, 1991); Tauer v. State , 451
N.W.2d 649, 651 (Minn. App. 1990) (concluding that the district court did not err where it
modified a sentence based on a clerical error arising from defense counsel’s statements at
the sentencing hearing), review denied (Minn. Mar. 16, 1990).
The modification of an additional six months to Carter’s senten ce amounts to a
sentence not authorized by law. See Staloch, 643 N.W.2d at 332 (stating that a district
court “cannot later impose a more severe sentence under the gui se of making a clerical
correction”). The fact that the district court’s sentencing or der here contradicts its orally-

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pronounced sentence does not save its error. See id. at 331 (stating that “the purpose of the
written order” is to “help clarify an ambiguous oral sentence by providing evidence of what
was said from the bench”) (quotation omitted). We conclude that the district court abused
its discretion by attempting to withdraw its original 60-month sentence and then imposing
a higher sentence based on Carter’s failure to show up to the s econd sentencing hearing.
See Minn. R. Crim. P. 27.03, subd. 9 (“The court may modify a sente nce during a stay of
execution or imposition of sentence if the court does not incre ase the period of
confinement); see also Reesman, 449 N.W.2d at 490 (“A court which modifies a sentence
for reasons other than those pe rmitted by statute is not perfor ming a judicial function.”).
We therefore reverse the district court’s denial of Carter’s mo tion, and remand for
modification of Carter’s sentence to the originally-pronounced 60 months.
Reversed and remanded.