Lorenzo Damien Brewer, 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This opinion will be unpublished and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
A19-1479

Lorenzo Damien Brewer, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 15, 2020
Affirmed
Reyes, Judge

Stearns County District Court
File No. 73-CR-08-5631

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

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

Janelle P. Kendall, Stearns County Attorney, Kyle R. Triggs, Assistant County Attorney,
St. Cloud, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this appeal from the postconviction court’s denial of his moti on to correct an
unlawful sentence under Minn. R. Cri m. P. 27.03, subd. 9 , appellant argues that the

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postconviction court abused its discretion by (1) determining that his ineffective -
assistance-of-counsel claim is a time-barred postconviction claim and (2) denying his
remaining claims without an evidentiary hearing. We affirm.
FACTS
In June 2009, appellant Lorenzo Damien Brewer pleaded guilty to second -degree
controlled-substance sale, in violation of Minn. Stat. § 152.022, subds. 1(1), 3(a) (2008)
(count I), and third-degree controlled-substance sale, in violation of Minn. Stat. § 152.023,
subds. 1(1), 3(a) (2008) (count II). Appellant admitted to selling approximately 2.2 grams
of methamphetamine on November 26, 2007 (count II), and approximately 4.4 grams the
next day (count I). His presentence-investigation report (PSI) listed a presumptive prison
sentence of 84 to 117 months for count I, based on a severity level of eight and five
criminal-history points, including 1.5 points from count II. For count II, the PSI listed a
presumptive executed sentence of 34 to 46 months.
As part of his guilty plea , appellant agreed to accept a 67 -month sentence for the
offenses. He asked the district court to release him until sentencing . The district court
agreed to release him on the condition that, if he failed to attend sentencing, his guilty plea
would stand, and the district court could impose a top-of-the-box sentence of 117 months.
Appellant stated twice that he understood.
Appellant failed to appear at the sentencing hearing. In October 2013,
approximately four years later and after his extradition from Illinois, the district court held
appellant’s sentencing hearing. It first sentenced him to imprisonment of 39 months on
count II and then to 117 months on count I, to run concurrently.

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More than five years later, in November 2018, appellant filed a pro se motion to
correct his sentence under Minn. R. Crim. P. 27.03, subd. 9. He argued that his trial counsel
provided ineffective a ssistance and that his sentence is unauthorized by law for several
reasons. At his motion hearing, he argued only that the two -year limitation period for
postconviction claims does not bar his ineffective -assistance-of-counsel claim . The
postconviction court disagreed, denying appellant’s motion without an evidentiary hearing
on the basis that it is a time-barred postconviction petition. This appeal follows.
D E C I S I O N
Appellant argues that the postconviction court abused its discretion by
(1) determining that his ineffective -assistance-of-counsel claim is a time-barred
postconviction claim and (2) denying his remaining claims without an evidentiary hearing.
We address each argument in turn.
We review postconviction decisions for an abuse of discretion. See Davis v. State,
784 N.W.2d 387, 390 (Minn. 2010). We review the postconviction court’s interpretation
of procedural rules and issues of law de novo. See Vazquez v. State, 822 N.W.2d 313, 315
(Minn. App. 2012). We review its factual findings for clear error. Id. at 316.
An offender may challenge “a sentence not authorized by law ” at any time . See
Minn. R. Crim. P. 27.03, subd. 9. A sentence is authorized by law if it is not prohibited by
statute or caselaw. See State v. Borrego, 661 N.W.2d 663, 667 (Minn. App. 2003). Rule
27.03, subd ivision 9, does not apply to sentence challenges based on claimed factual
inaccuracies before the district court at sentencing or when th e district court “ select[ed]

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one among two or more sentences that are authorized by law.” Washington v. State, 845
N.W.2d 205, 213 (Minn. App. 2014).
A challenge to a sentence for reasons other than it being unauthorized by law must
be brought instead as a petition for postconviction relief within two years of the entry of
judgment of conviction or sentence . See Minn. Stat. § 590.01, subd. 4(a)(1) (2018);
Washington, 845 N.W.2d at 213-14 (discussing distinction between rule 27.03, subdivision
9, and postconviction claims). An offender may not avoid this two-year limitation period
“by simply labeling a [postconviction] challenge as a motion to correct sentence under rule
27.03, subdivision 9.” Id. at 212.
I. The postconviction court did not abuse i ts discretion by determining that
appellant’s ineffective-assistance-of-counsel claim is time-barred.

Appellant appears to argue that the postconviction court abused its discretion by
denying his ineffective -assistance-of-counsel claim without meaningful review. We
disagree.
Appellant claims that he received ineffective assistance of counsel because his trial
counsel failed to inform the district court that he missed his sentencing hearing because of
a gunshot wound, and the district court may have imposed a lower sentence had it known.
This claim involves the accuracy of the facts before t he district court at sentencing .
Appellant does not argue that his 117 -month sentence would be unauthorized by law
because of the reason s that he failed to appear at sentencing. Further, h e effectively
acknowledged at his motion hearing that the district court sentenced him within its
discretion by stating that it “may have given” him a lower sentence had it heard his reasons

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for missing sentencing . Because his ineffe ctive-assistance-of-counsel claim is a “fact-
based challenge” to his sentence and not a claim that the sentence is “unauthorized by law,”
it is a postconviction claim. See Washington, 845 N.W.2d at 214-15 (quotation omitted).
Because a ppellant filed his motion more than three years after the two -year period for
postconviction claims had expired, the postconviction court properly denied his claim as
untimely. See Minn. Stat. § 590.01, subd. 4(a) (2018).
In a related claim , appellant argues that the district court should have held a n
evidentiary hearing on why he missed sentencing. This claim is also based on the accuracy
of the facts before the district court and not an assertion that his sentence is unauthorized
by law. Appellant is not entitled t o relief on this basis, and the postconviction court
properly denied this as a time-barred postconviction claim.
II. The postconviction court did not abuse its discretion by denying appellant’s
remaining claims without an evidentiary hearing.

Appellant argues that we must remand because the postconviction court summarily
denied his remaining claims that (1) his 117-month sentence is an impermissible upward
departure; (2) Minn. Stat. § 609.035 (2018) prohibits the multiple sentences imposed by
the district court; and (3) his sentence is based on an incorrect criminal-history score, all of
which he argues are within the scope of rule 27.03, subdivision 9 . While we agree that
these claims are within the scope of rule 27.03, subdivision 9, they nevertheless lack merit
and do not require an evidentiary hearing.
Rule 27.03, subdivision 9, does not require the postconviction court to hold an
evidentiary hearing or make findings of fact. State v. Masood, 739 N.W.2d 736, 739 (Minn.

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App. 2007). Further, we will not reverse the postconviction court’s denial of a rule 27.03,
subdivision 9, motion unless it “abused its discretion or the original sentence was
unauthorized by law.” State v. Amundson , 828 N.W.2d 747, 752 (Minn. App. 2013).
Whether a sentence is unauthor ized by law is a legal question that we review de novo.
Borrego, 661 N.W.2d at 667. We address each of appellant’s claims in turn.
First, appellant argues that his sentence is an impermissible upward departure
because the district court failed to provide reasons for imposing it, a jury did not hear the
facts th at enhanced the sentence, and the plea -agreement condition providing for the
upward departure is unconstitutional. All of these claims rely on appellant’s assertion that
his 117-month sentence is an upward departure from the sentencing guidelines. A sentence
is a departure only if it is outside of the presumptive range in the applicable cell of the
sentencing grid. See Minn. Sent. Guidelines II.C (2007). Here, the presumptive range for
appellant’s second -degree controlled -substance offense, based on his criminal -history
score of five, is 84 to 117 months’ imprisonment. See Minn. Sent. Guidelines IV (2007).
Appellant’s 117-month sentence is within the presumptive range and therefore is not an
upward departure. His claims based on the illegality of the “departure” fail.
Second, he argue s that he should not have received multiple sentences, based on
Minn. Stat. § 609.035. Section 609.035 prohibits multiple sentences for offenses that arise
from a “single behavioral incident.” State v. Bakken, 883 N.W.2d 264, 270 (Minn. 2016).
But appellant’s charges are based on separate controlled-substance sales on two different
days, and he does not argue that they form a single behavioral incident. The district court
properly imposed a separate sentence for each offense.

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Third, he argues that his criminal-history score for count I should not have included
points from his conviction for count II because points from a guilty plea should not be used
in the same case. A district court should assign c riminal-history points “for every felony
conviction for which a felony sentence was . . . imposed before the current sentencing” and
sentence multiple offenses “in the order in which they occurred.” Minn. Sent. Guidelines
cmt. II.B.03(1) (2007). The district court imposed appellant’s felony sentence on count II
first, as the count-II offense occurred the day before the count -I offense. It then imposed
the sentence on count I.1 It therefore properly included the points from count II in count I.
Appellant nonetheless relies on Vazquez to argue that we must remand for an
evidentiary hearing. 822 N.W.2d 313. Vazquez clarified that a motion to correct a sentence
based on an inaccurate criminal -history score is properly brought under rule 27.03,
subdivision 9. Id. at 320. But it did not require an evidentiary hearing on all such motions.
Because rule 27.03, subdivision 9, does not require the postconviction court to hold
an evidentiary hearing, see Masood, 739 N.W.2d at 739, and because appellant is not
entitled to relief on his remaining claims, the postconviction court did not abuse its
discretion by denying appellant’s motion without an evidentiary hearing.
Affirmed.

1 The district court initially referred to the second -degree offense incorrectly as count II
during sentencing, but it later clarified that the second-degree offense is count I.