Amy Jeanne Flaherty, petitioner, Appellant,

This opinion will be unpublished and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
A19-0084

Amy Jeanne Flaherty, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 9, 2019
Affirmed
Reilly, Judge

Chisago County District Court
File No. 13-CR-15-269

Cathryn Middlebrook, Chief Appellate Public Defender, Michael McLaughlin, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

Janet R eiter, Chisago County Attorney, David Hemming, Assistant County Attorney,
Center City, Minnesota (for respondent)

Considered and decided by Cleary, Presiding Chief Judge; Reilly, Judge; and
Slieter, Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges the district court’s determination that her motion to correct her
sentence pursuant to Minnesota Rule of Criminal Procedure 27.03, subdivision 9 (rule 27
motion), was improper. Because the district court did not abuse its discretion, we affirm.
FACTS
In April 2015 , City of Wyoming police officers executed a search warrant o n
appellant Amy Flaherty’s home . During the search, police discovered a trash bag
containing 365 grams of marijuana , a 50 -gallon drum of an unknown liquid, multiple
locked safes, scales, lights, and other items commonly used to grow marijuana plants.
Based upon the recommendation from a Chemical Assessment Team (CAT), t he City of
Wyoming paid $1,413.45 to Bay West Corporation, a third-party vendor, to dispose of the
contents of the 50-gallon drum. Thereafter the state, respondent in this case, charged
appellant with fifth-degree possession of a controlled substance in violation of Minn. Stat.
§ 152.025, subd. 2(a)(1) (2014).
In October 2015, the state and appellant entered into a plea agreement in which
appellant agreed to plead guilty to fifth-degree possession and pay restitution—subject to
a challenge at a restitution hearing—in exchange for a stay of adjudication with a five year
probation period. The plea petition reflected this agreement, which appellant signed. At
sentencing, in accordance with the plea agreement , the district court ordered a stay of
adjudication, placed appellant on proba tion for five years, imposed a fine, and ordered
restitution of $1,413.45 subject to a challenge by appellant.

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Appellant filed a timely challenge to the restitution. At the restitution hearing, t he
district court heard testimony from the City of Wyoming Chief of Police and appellant.
The Chief testified that: (1) of ficers found a large drum during the search warrant on
appellant’s home; (2) a CAT recommended removal of the drum, which contained
“potassium sulfate”; (3) the City of Wyoming contacted Bay West Corporation for removal
of the drum; and (4) Bay West Corporation sent the City of Wyoming an invoice for
$1,413.45. Appellant testified that the CAT report showed the drum contained “potassium
oleate,” which she asserted is a commercial cleaning product called “Heat ‘n Kleen” used
by her partner to clean popcorn machines as a part of his business. Appellant produced the
CAT report and a receipt of her purchase of the cleaning product. In July 2016, the district
court issued an order upholding its prior restitution order of $1,413.45 to the City of
Wyoming.
In July 2018—nearly two years later—appellant filed a rule 27 motion, arguing that
the restitution order must be reversed because the state failed to prove that the City of
Wyoming suffered an economic loss that was directly caused by her crime and that the
court failed to consider her ability to pay restitution. The district court determined that :
(1) appellant’s rule 27 motion was unavailable because the restitution award was a material
term of the plea agreement ; and (2) a petition for post -conviction relief under Minn. Stat.
§ 590.01, subd. 1 (2016) was unavailable because appellant received a stay of adjudication.
This appeal follows.

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D E C I S I O N
The question presented in this case is whether the district court abused its discretion
when it denied appellant’s challenge to the court-ordered restitution because it determined
that neither a rule 27 motion nor a petition for post-conviction relief was appropriate in this
case.
I. The district court did not abuse its discretion when it denied appellant’s
rule 27 motion.

Minnesota Rule of Criminal Procedure 27.03, subdivision 9, provides that a district
court “may at any time correct a sentence not authorized by law.” A criminal offender may
utilize the procedure in rule 27.03, subdivision 9, to challenge a restitution aw ard. Evans
v. State, 880 N.W.2d 357, 359 -60 (Minn. 2016). We review a district court’s denial of a
motion to correct sentence under the abuse-of-discretion standard. State v. Amundson, 828
N.W.2d 747, 752 (Minn. App. 2013). A district court abuses its discretion by upholding a
sentence that is unauthorized by law. Id.
Here, the district court determined that appellant could not properly bring her
challenge in a rule 27 motion because restitution was a material part of her plea agreement.
A district court should not alter the terms of restitution that is negotiated as part of a plea
agreement if it materially changes the expectations of the parties to the bargain. State v.
Meredyk, 754 N.W.2d 596, 604 (Minn. App. 2008); see also Evans , 880 N.W.2d at 35 7
(holding that a rule 27 motion is not the proper method to challenge a restitution award if
payment of restitution is a ma terial part of the negotiation ). Because a plea agreement is
considered similar to a contract between the state and a defendant, th e alteration of one

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term may alter the nature of the entire agreement. Meredyk, 754 N.W.2d at 603 -04
(determining that district court’s modification to restitution was an abuse of discretion
because it materially altered the negotiated plea agreement); see also State v. Noreen, 354
N.W.2d 77, 78-79 (Minn. App. 1984) (stating that imposition of a restitution obligation of
$2,000 materially altered the expectations of the parties).
Appellant argues that restitution was not a material part of her plea agreement
because the agreement recognized restitution would be further litigated at a restitution
hearing. However, appellant fails to cite any relevant legal authority supporting her
argument that because the parties agreed to a restitution hearing, the restitution amount was
not a material part of the plea agreement. And contrary to appellant’s argument, a review
of the record supports the materiality of the restitution to the plea a greement. At the
restitution hearing, appellant’s counsel indicated that the state refused to negotiate without
restitution included, so appellant “had to say she would agree to restitution, understanding
she had the right to challenge the amount” in orde r to plead guilty. And “Restitution of
$1400 J&S but can have a restitution hrg” is written directly on the plea petition. Because
we see no abuse of discretion in the district court’s determination that restitution was a
material part of appellant’s plea agreement, and therefore a rule 27 motion is inappropriate
in this case, we affirm.
II. The district court did not abuse its discretion when it d enied appellant’s
petition for postconviction relief.

Minnesota’s postconviction statute allows a person convicted of a crime to petition
the court to correct a sentence when the sentence “violate[s] the person’s rights under the

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Constitution or laws of the United States or of the state.” Minn. Stat. § 590.01, subd. 1
(2016). The statute imposes a two -year time li mit on petitions for postconviction relief
from “the entry of judgment of conviction or sentence if no direct appeal is filed.” Id.,
subd. 4(a)(1) ( 2016). We review a postconviction court’ s denial of a petition for
postconviction relief for an abuse of d iscretion. Andersen v. State, 913 N.W.2d 417, 422
(Minn. 2018). “A postconviction court abuses its discretion when its decision is based on
an erroneous view of the law or is against logic and the facts in the record, or exercises its
discretion in an ar bitrary or capricious manner.” Crow v. State, 923 N.W.2d 2, 9 (Minn.
2019) (quotation omitted).
Minnesota law permits a district court to stay adjudication of guilt for first -time
offenders who are found guilty of, or plead guilty to, certain controlled-substance offenses.
Minn. Stat. § 152.18, subd. 1 (201 6). If the defendant and the offense meet the specified
criteria, the statute authorizes the court to:
without entering a judgment of guilty and with the consent of
the person, defer further proceeding s and place the person on
probation upon such reasonable conditions as it may require
and for a period, not to exceed the maximum sentence provided
for the violation . . . . Upon violation of a condition of the
probation, the court may enter an adjudicati on of guilt and
proceed as otherwise provided.

Id. In this case , the district court construed appellant’s motion as a petition for
postconviction relief and denied relief, concluding that appellant’s request was
impermissible because there was no entry of judgment of conviction for purposes of Minn.
Stat. § 590.01, subd. 4(a)(1). The district court reasoned that because it stayed adjudication
pursuant to section 152.18, there was “by definition no adjudication of guilt.”

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Appellant concedes that recent caselaw has held that a postconviction petition may
not be used to challenge a stay of adjudication . See Dupey v. State , 868 N.W.2d 36, 41
(Minn. 2015) (“W hen an offender receives a stay of adjudication under Minn. Stat.
§ 152.18, subd. 1, there is no judg ment of conviction or sentence under Minn. Stat.
§ 590.01, subd. 4(a)(1) .”); see also Lunzer v. State , 874 N.W.2d 819, 823 (Minn. App.
2016) (“Because appellant was not convicted of a crime f or purposes of Minn. Stat.
§ 590. 01, subd. 1, the district court lacked jurisdiction to consider her petition for
postconviction relief and properly denied it without an evidentiary hearing.”). But
appellant argues that because the court did not stay her payment of restitution , she should
be able to challenge the cour t-imposed restitution. However, appellant does not cite any
relevant legal authority to support her position, and we can find none.
Here, appellant did not file a direct appeal from the district court’s decision to award
restitution, but instead waited al most two years to file a rule 27 motion (and alternatively
a postconviction petition). Neither a rule 27 motion nor a postconviction petition are
available remedies in this case, and so accordingly, we affirm the district court’s denial of
appellant’s motion and petition.
Affirmed.