Fong Lee, 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This opinion will be unpublished and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
A19-1832

Fong Lee, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 14, 2020
Reversed and remanded
Johnson, Judge

Ramsey County District Court
File No. 62-K8-04-003298

Zachary A. Longsdorf, Longsdorf Law Firm, PLC, Inver Grove Heights, Minnesota (for
appellant)

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

John J. Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
In 2004, Fong Lee shot two men, killing one of them and injuring the other. In
2005, a Ramsey County jury found Lee guilty of second -degree murder and attempted

2
second-degree murder. The district court, relying on the 2004 version of the sentencing
guidelines, imposed consecutive prison sentences of 306 and 153 months. In 2019, Lee
filed a motion to correct his sentences. He seeks to take advantage of a 2005 modification
to the sentencing guidelines that, if applied, would presumptively require the district court
to impose concurrent sentences rather than consecutive sentences. The district court denied
Lee’s motion on the grounds that the motion is procedurally barred and that Lee cannot
satisfy the requirements of the amelioration doctrine. We conclu de that the district court
erred by reasoning that Lee’s motion is procedurally barred and by reasoning that the
amelioration doctrine does not apply. Therefore, we reverse and remand for further
proceedings.
FACTS
This case is before this court for the t hird time. In our first opinion, in 2006, we
described the underlying facts, which occurred on August 21 and 22, 2004, as follows:
Lee, Lee’s brother, and Tou Yang went to a bar in St. Paul. Lee gave Yang a gun, which
Yang hid in the waistband of his pa nts. Hours later, the three men got into an argument
with a group of approximately nine other men. The two groups had an altercation outside
the bar. A man from the other group punched Yang, who fell to the ground. Lee removed
the gun from Yang’s waist band and fired several shots. One bystander was shot in the
chest and died; a second bystander was shot in a knee and survived. State v. Lee, No. A05-
2138, 2006 WL 3490432, at *1 (Minn. App. Dec. 5, 2006), review denied (Minn. Feb. 20,
2007).

3
The state c harged Lee with second -degree murder, in violation of Minn. Stat.
§ 609.19, subd. 1(1) (2004), based on the allegation that he shot the bystander who died.
Before trial, the state amended the complaint to add a charge of attempted second -degree
murder based on the allegation that he shot the bystander who survived. A Ramsey County
jury found Lee guilty of both charges. In July 2005, the district court imposed consecutive
sentences of 306 months of imprisonment for second -degree murder and 153 months of
imprisonment for attempted second -degree murder, for a total of 459 months of
imprisonment.
On direct appeal, Lee argued that the evidence was insufficient to support the
convictions. This court affirmed the conviction. Lee, 2006 WL 3490432, at *4. In 2007,
Lee petitioned for post-conviction relief, arguing that his trial attorney provided him with
ineffective assistance of counsel. The post-conviction court denied Lee’s petition, and this
court affirmed. Lee v. State , No. A08 -1713, 2009 WL 2595889 (Minn. App. Aug. 13,
2009).
A decade later, in April 2019, Lee filed a motion to correct sentence pursuant to rule
27.03, subdivision 9, of the rules of criminal procedure. Lee requested resentencing
pursuant to a 2005 modification to the sentencing guidelines that would be more favorable
to him than the sentencing guidelines that applied at the time of his sentencing. In July
2005, the sentencing guidelines provided for permissive consecutive sentences for the two
offenses of which Lee was convicted. Minn. Sent. Guidelines II.F (2004). But, one month
later, after the 2005 modification took effect, consecutive sentences for the two offenses
no longer was permissive but, rather, was an upward departure. Minn. Sent. Guidelines

4
II.F (Supp. 2005). Based on the 2005 modification, Lee invoked the amelioration doctrine
and requested that his two sentences “be corrected to run concurrent.” In response, the
state argued that “[t]he Guidelines contain a clear statement of abrogation of the
amelioration doctrine” such that Lee was correctly sentenced according to the 2004
sentencing guidelines.
In August 2019, the district court denied Lee’s motion in a four -page order. The
district court reasoned that Lee’s motion is barred by the Knaffla doctrine and that he
cannot satisfy the first and second requirements of the amelioration doctrine. Lee appeals.
D E C I S I O N
Lee argues that the district court erred by denying his motion to correct sentence. A
district court “may at any time correct a sentence not authori zed by law.” Minn. R. Crim.
P. 27.03, subd. 9. An offender may seek correction of a sentence by filing a motion to
correct sentence. See, e.g. , Townsend v. State , 834 N.W.2d 736, 739 (Minn. 2013);
Johnson v. State, 801 N.W.2d 173, 175 (Minn. 2011). A sentence is not authorized by law
if it is “contrary to law or applicable statutes.” State v. Schnagl , 859 N.W.2d 297, 301
(Minn. 2015). In general, this court applies an abuse-of-discretion standard of review to a
district court’s denial of a motion to c orrect sentence. Evans v. State , 880 N.W.2d 357,
359 (Minn. 2016).
I. Knaffla Doctrine
Lee first argues that the district court erred by concluding that his motion to correct
sentence is procedurally barred by State v. Knaffla, 243 N.W.2d 737 (Minn. 1976).

5
In Knaffla, the supreme court held that an offender may not file a post -conviction
petition to assert a claim that previously was raised on direct appeal or that could have been
raised but was not raised on direct appeal. Id. at 741; see also Quick v. State, 757 N.W.2d
278, 280 (Minn. 2008). Similarly, “matters raised or known but not raised in an earlier
petition for postconviction relief will generally not be considered in subsequent petitions
for postconviction relief.” Powers v. State, 731 N.W.2d 499, 501 (Minn. 2007).
The remedy that may be obtained by a motion to correct sentence “coexist[s] with
the postconviction remedy.” Vazquez v. State, 822 N.W.2d 313, 317 (Minn. App. 2012).
Accordingly, an offender may elect to challenge his or her senten ce by filing either a
petition for post-conviction relief, Minn. Stat. § 590.01, subd. 1(1) (2018), or a motion to
correct sentence, Minn. R. Crim. P. 27.03, subd. 9. But an offender may not invoke rule
27.03, subdivision 9, to seek relief for anything ot her than an unauthorized sentence
because the rule “is limited to sentences, and the court’s authority under the rule is
restricted to modifying a sentence.” State v. Coles , 862 N.W.2d 477, 480 (Minn. 2015).
Consequently, if an offender files a motion that “implicates more than simply his sentence,”
a district court may construe the motion as a petition for postconviction relief. Johnson v.
State, 877 N.W.2d 776, 779 (Minn. 2016) (quotation omitted).
The supreme court has not yet decided “whether . . . t he procedural bar under
Knaffla appl[ies] to a motion to correct a sentence under rule 27.03, subdivision 9.”
Townsend, 834 N.W.2d at 739. This court, however, has held that the Knaffla doctrine
does not apply to a motion to correct sentence filed pursua nt to rule 27.03, subdivision 9.
State v. Amundson, 828 N.W.2d 747, 751-52 (Minn. App. 2013).

6
In this case, the district court did not construe Lee’s motion to correct sentence as a
petition for post-conviction relief. There is no basis for recharacterizing the motion in that
manner because the relief Lee seeks is limited to a correction of his sentence. See Coles,
862 N.W.2d at 480. The district court simply applied the Knaffla doctrine and concluded,
“Knaffla procedurally bars Petitioner’s motion.” T he district court’s application of the
Knaffla doctrine is contrary to this court’s caselaw, in which we have held that the Knaffla
doctrine does not apply to a motion to correct sentence filed pursuant to rule 27.03,
subdivision 9. See Amundson , 828 N.W. 2d at 751 -52; see also Washington v. State ,
845 N.W.2d 205, 214, 216 (Minn. App. 2014).
Thus, the district court erred by concluding that Lee’s motion to correct sentence is
procedurally barred by the Knaffla doctrine.
II. Amelioration Doctrine
Lee’s prim ary argument is that the district court erred by concluding that the
amelioration doctrine does not apply and that he was properly sentenced under the 2004
sentencing guidelines instead of the 2005 sentencing guidelines.
In August 2004, when Lee committed his crimes, the sentencing guidelines
provided, “Multiple current felony convictions for crimes against persons may be
sentenced consecutively to each other.” Minn. Sent. Guidelines II.F (2004) (emphasis
added). In July 2005, the district court imposed consecutive sentences on Lee for the
offenses of second -degree murder and attempted second -degree murder. On August 1,
2005, a modification to section II.F of the guidelines became effective. See Minn.
Sentencing Guidelines Comm’n, Report to the Legislature 13-18 (Jan. 2005); 2005 Minn.

7
Laws ch. 136, art. 16, § 14, at 1119; Minn. Sent. Guidelines II.F (Supp. 2005). After that
modification, the guideline quoted above provided, “Multiple current felony convictions
for crimes on the list of offenses eligible for permissive consecutive sentences found in
Section VI may be sentenced consecutively to each other.” Minn. Sent. Guidelines II.F
(Supp. 2005) (emphasis added). At that time, the list of offenses in section VI in cluded
first-degree murder, attempted first -degree murder, and second -degree murder. Minn.
Sent. Guidelines VI (Supp. 2005).
This court later held that the absence of any mention of attempted second -degree
murder in section VI of the 2005 guidelines impli es that multiple convictions of that
offense may not be sentenced consecutively to each other under section II.F. State v.
Johnson, 756 N.W.2d 883, 886, 894-96 (Minn. App. 2008), review denied (Minn. Dec. 23,
2008). The sentencing guidelines permit consecutive sentences on two convictions only if
both offenses are listed in section VI. Bilbro v. State , 927 N.W.2d 8, 14 (Minn. 2019)
(citing Minn. Sent. Guidelines II.F & VI (2007)). Lee and the state agree that, if the 2005
modification to section II.F we re to apply, it would not authorize permissive consecutive
sentencing.1

1We note that the 2005 modification to section II.F effectively has been superseded
by a subsequent modification to another section of the guidelines. In 2009, section VI of
the sentencing guidelines was modified by the addition of the following sentence:
“Convictions for attempted offenses or conspiracies to commit offenses listed below are
eligible for permissive consecutive sentences as well as convictions for completed
offenses.” Minn. Sent. Guidelines VI (Supp. 2009). The 2009 modification has been
retained in the current version of the guidelines. See Minn. Sent. Guidelines 6.A (Supp.
2019). Neither party called the 2009 modification to this court’s attention. We identified
a potential issue on our own initiative and requested supplemental briefin g on two
questions regarding the 2009 modification. The first question asked, “Does the sentencing

8
Under the common -law amelioration doctrine, a law that mitigates punishment
applies to acts committed before the effective date of the law if final judgment has not yet
been entered. State v. Kirby , 899 N.W.2d 485, 489 (Minn. 2017); State v. Coolidge ,
282 N.W.2d 511, 514 (Minn. 1979). The amelioration doctrine is grounded in the principle
that if the legislature has amended a statute to mitigate criminal punishment in a particular
situation, “the legislature has manifested its belief that the prior punishment is too severe
and a lighter sentence is sufficient.” Coolidge, 282 N.W.2d at 514. In that situation,
“Nothing would be accomplished by imposing a harsher punishment, in light of the
legislative pronouncement, other than vengeance.” Id. at 514 -15. Consequently, a
defendant or offender whose criminal case has not yet reached final judgment may receive
the benefit of the new, more lenient law, so long as there is no “contrary statement of intent
by the legislature.” Edstrom v. State , 326 N.W.2d 10, 10 (Minn. 1982). Thus, the
amelioration doctrine applies if three conditions are satisfied: “(1) there is no statement by
the Legislature that clearly establishes the Legislature’s intent to abrogate the amelioration
doctrine; (2) the amendment mitigates punishment; and (3) final judgment has not been

guidelines commission’s 2009 modification applying permissive consecutive sentences to
attempt crimes, Minn. Sent. Guidelines VI (Supp. 2009), alter applica tion of the
amelioration doctrine to appellant’s case, and, if so, how? ” The second question asked,
“Based on the procedural history of this case,” is the issue “properly before this court?” In
their respective supplemental briefs, both parties answered the second question in the
negative. The parties’ shared position is consistent with the general rule that this court
does not consider issues that were not presented to and resolved by the district court. See,
e.g., State v. Bailey , 732 N.W.2d 612, 623 (Minn. 2007). Accordingly, we decline to
consider sua sponte how the 2009 modification might affect the application of the
amelioration doctrine in light of the fact that Lee was sentenced before the 2005
modification to section II.F but did not move to correct his sentence until after the 2009
modification to section 6.A. To be clear, we take no position on that issue.

9
entered as of the date the amendment takes effect.” Kirby, 899 N.W.2d at 490. This court
applies a de novo standard of review to a district court’s decision concerning the application
of the amelioration doctrine. See State v. Campbell, 814 N.W.2d 1, 4 (Minn. 2012).
The district court reasoned that the first requirement and the second requirement of
the amelioration doctrine are not sati sfied. On appeal, Lee challenges the district court’s
reasoning with respect to both of those requirements. In response, the state argues that the
district court correctly determined that both the first requirement and the second
requirement are not sati sfied. The district court and the parties agree that the third
requirement is satisfied, so it is not at issue on appeal.
A. First Requirement: No Statement of Abrogation
As stated above, the first requirement of the amelioration doctrine is that “there i s
no statement by the Legislature that clearly establishes the Legislature’s intent to abrogate
the amelioration doctrine.” Kirby, 899 N.W.2d at 490.
The district court determined that there is a statement clearly expressing an intent to
abrogate the amel ioration doctrine in the 2005 sentencing guidelines, which stated,
“Modifications to the Minnesota Sentencing Guidelines and associated commentary will
be applied to offenders whose date of offense is on or after the specified modification
effective date.” Minn. Sent. Guidelines III.F (Supp. 2005). Lee contends that section III.F
of the guidelines “merely reiterate[s] the general rule that newly -enacted laws are not
retroactive” and is not a statement by the legislature reflecting an intent to abrogate th e
amelioration doctrine. The state contends that the provision on which the district court

10
relied, section III.F, makes clear that the 2005 modification to section II.F does not apply
to Lee’s crime, which was committed in 2004.
After the parties filed th eir respective briefs in this appeal, this court issued its
opinion in State v. Robinette, 944 N.W.2d 242 (Minn. App. 2020), review granted (Minn.
June 30, 2020).2 In that case, we considered whether Robinette was entitled to resentencing
under the amelio ration doctrine based on a 2019 modification to section 2.B.2 of the
sentencing guidelines. Id. at 249-50. The sentencing guidelines commission had submitted
proposed modifications of section 2.B.2 to the legislature, as required by statute. Id. at 250
(citing Minn. Stat. § 244.09, subd. 11 (2018)). But “the legislature did not act,” so the
modification took effect on August 1, 2019, pursuant to statute. Id. We considered the
question “whether a policy statement adopted by the guidelines commission without
express legislative approval operates as a statement of intent by the legislature.” Id. at 249.
We answered that question in the negative, reasoning that the legislature’s inaction was not
an express statement of intention to abrogate the amelioration doctrine. Id. Accordingly,
we determined that Robinette satisfied the first requirement of the amelioration doctrine.
Id.
In light of our Robinette opinion, we requested supplemental briefing on the
following question: “Does this court’s opinion in State v. Robinette alter the application of

2The supreme court denied Robinette’s petition for review of parts I an d II of this
court’s opinion. The supreme court granted the state’s cross-petition for review of part III
of this court’s opinion, which concern s the amelioration doctrine. State v. Robinette ,
No. A19-0679 (Minn. June 30, 2020) (order). The state’s cross-petition framed the issue
as, “May the amelioration doctrine be abrogated by express statements by the Sentencing
Guidelines Commission that are ratified by the Legislature?”

11
the amelioration doctrine to appellant’s case, and, if so, how?” In Lee’s supplemental brief,
he argues that Robinette provides additional support for his argument that section III.F of
the 2005 guidelines “was not a statement of legislative intent to abrogate.” In contrast, the
state argues in its supplemental brief that the Robinette opinion has no bearing on this case
because it did “not deal with an express statement like the one in this case.”
The present case is somewhat similar to Robinette in that, in each case, the
amelioration issue arose from a modification to the sentencing guidelines that was
proposed by the sentencing guidelines commission. See id. But this case is different from
Robinette in the manner in which the proposed modification became effective. In
Robinette, the legislature took no action on the commission’s proposed modification, so
the modification became effective by operation of law. See 944 N.W.2d at 249-50. In this
case, the legislature actually acted on the commission’s multiple proposed modifications,
approving some and disapproving others. 2005 Minn. Laws ch. 136, art. 16, § 14, at 1119.
Thus, we must determine whether the legislature abrogated the amelioration doctrine with
respect to the 2005 proposed modification to section II.F of the guidelines when the
legislature expressly adopted that proposed modification. We do so by as king whether
there is a “statement by the Legislature that clearly establishes the Legislature’s intent to
abrogate the amelioration doctrine.” See Kirby, 899 N.W.2d at 490.
In January 2005, the sentencing guidelines commission submitted a report to the
legislature in which it proposed multiple modifications to the guidelines, including the
modification to section II.F on which Lee relies. Report to the Legislature, supra, at 13-18.
The legislature responded by expressly adopting the proposed modificatio ns in parts I.A.,

12
I.B., and II. of the commission’s report but expressly rejecting the proposed modifications
in parts I.C. and III. of the commission’s report. 2005 Minn. Laws ch. 136, art. 16, § 14,
at 1119. The commission’s proposed modification to se ction II.F of the guidelines was
included in part I.B. of the report and, thus, was expressly adopted by the legislature.
Report to the Legislature , supra, at 13. The session law states that the proposed
modifications that were adopted shall “take effect on August 1, 2005.” 2005 Minn. Laws
ch. 136, art. 16, § 14, at 1119.
After carefully reviewing the 2005 session law, we do not find any statement that
clearly establishes the legislature intent to abrogate the amelioration doctrine. The
legislature incl uded no such statement in the provisions that adopted and rejected the
various proposals of the commission; the legislature did so without explaining its reasons.
Id. Likewise, the legislature included no such statement in the effective-date provision; the
language used there is similar to the language of the effective -date provision at issue in
Kirby, which simply specified the date on which the new law became effective. See 899
N.W.2d at 490 (citing 2016 Minn. Laws ch. 160, § 18, at 591). But the supr eme court
concluded in Kirby that such language was not an express statement by the legislature of
any intention to abrogate the amelioration doctrine. Id. at 490-93.
The state argues that the district court correctly reasoned that the commission (not
the legislature) made an express statement of an intention to abrogate the amelioration
doctrine with respect to the 2005 modification to section II.F of the guidelines. As stated
above, the district court relied on a provision in the 2005 guidelines that st ated,
“Modifications to the Minnesota Sentencing Guidelines and associated commentary will

13
be applied to offenders whose date of offense is on or after the specified modification
effective date.” Minn. Sent. Guidelines III.F (Supp. 2005). In Kirby, the supreme court
considered a similar argument based on a subsequent version of the same provision, which
had since been modified slightly. 899 N.W.2d at 492 -93 (citing Minn. Sent. Guidelines
3.G (2016)). The supreme court noted that section 3.G of the guide lines was adopted by
the sentencing guidelines commission without legislative action because the commission
was not required to obtain the legislature’s approval for that type of guideline. Id. at 492
(citing Minn. Stat. § 244.09, subd. 5 (2016)). The su preme court then rejected the state’s
argument by stating, “We have never ruled —and decline to rule today —that the
amelioration doctrine may be abrogated by Commission statements not ratified by the
Legislature.” Id. at 493 (emphasis added). We interpret that statement to mean that the
amelioration doctrine cannot be abrogated by a statement of the sentencing guidelines
commission that was not ratified by the legislature. In other words, section III.F of the
2005 gu idelines does not abrogate the amelioration doctrine with respect to the 2005
modification to section II.F of the guidelines. Consequently, the district court’s reasoning
is contrary to the supreme court’s Kirby opinion.
Thus, the first requirement for th e application of the amelioration doctrine is
satisfied.
B. Second Requirement: Mitigation of Punishment
The second requirement of the amelioration doctrine is that “the amendment
mitigates punishment.” Kirby, 899 N.W.2d at 490. The Kirby opinion does not define the
word “mitigate” as used in this context, and we are unaware of any other opinion that

14
defines the word for purposes of the amelioration doctrine. The common definition of the
word is “[t]o make less severe or intense.” The American Heritage Dictionary of the
English Language 1129 (5th ed. 2011).
The district court determined that this requirement is not satisfied on the ground that
the 2005 modification changed “the procedures required for consecutive sentences,” which
the district court reas oned is “not the same as mitigation.” Lee contends that the 2005
modification to section II.F mitigated punishment because it “lowered the highest potential
sentence [he] could receive without [the] additional factfinding” required for an upward
departure. The state contends that the 2005 modification to section II.F does not mitigate
punishment because it does not preclude a district court from imposing consecutive
sentences, so long as the district court follows the procedures for an upward departure.
In 2004, section II.F of the sentencing guidelines permitted the district court, in its
discretion, to impose consecutive sentences for Lee’s convictions of second-degree murder
and attempted second -degree murder. See Minn. Sent. Guidelines II.F (2004); State v.
McLaughlin, 725 N.W.2d 703, 714-15 (Minn. 2007) (citing Minn. Sent. Guidelines II.F.2
(2004)). After the effective date of the 2005 modification, section II.F of the sentencing
guidelines does not permit a district court to impose consecutive sente nces for those
offenses, unless the district court ordered an upward departure from the presumptive
guidelines sentence, which would require the existence of aggravating factors and a written
statement of reasons that provide “identifiable, substantial, and compelling circumstances
to support” the departure. Minn. Sent. Guidelines II.D (Supp. 2005).

15
The 2005 modification has the effect of reducing the total duration of the
imprisonment that may result from the imposition of presumptive sentences on Lee for his
convictions of second-degree murder and attempted second-degree murder. The effect of
the 2005 modification is consistent with the common meaning of the word “mitigate”
because the modification had the effect of making the total duration of his presu mptive
sentence “less severe.” See American Heritage, supra, at 1129.
Thus, the second requirement of the application of the amelioration doctrine is
satisfied.
We note that the state did not seek an upward departure, and the district court did
not purport to order an upward departure, when Lee was sentenced in July 2005, when the
2004 guidelines governed. Lee contends that he “should be resentenced under the new
[i.e., 2005] guidelines.” Nothing in this opinion should be understood to preclude the state
from seeking, or the district court from ordering, an upward departure in the form of
consecutive sentences, consistent with the 2005 guidelines.
In sum, the district court erred by denying Lee’s motion to correct sentence.
Therefore, we reverse and remand for further proceedings.
Reversed and remanded.