Victor Demetrius Cole, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1044

Victor Demetrius Cole, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 1, 2021
Affirmed
Segal, Chief Judge

Hennepin County District Court
File No. 27-CR-07-002210

Victor Demetrius Cole, Moose Lake, Minnesota (pro se appellant)

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

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Frisch, Presiding Judge; Segal, Chief Judge; and
Hooten, Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant challenges the district court’s denial of his motion to correct and reduce
his sentence. As relevant her e, appellant pleaded guilty to and was sentenced for two
crimes—aiding and abetting second -degree murder and aiding and abetting at tempted

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first-degree murder. In his motion, filed almost 12 years after his sentencing, appellant
claimed that he should not have been sentenced for both crimes because they arose out of
the same course of conduct and his sentence unfairly exaggerates the criminality of his
offenses. Because we conclude that Cole’s motion is both time-barred and fail s on the
merits, we affirm.
FACTS
Appellant Victor Demetrius Cole challenges the district court’s order denying his
motion to correct his sentences for aiding and abetting murder and aiding and abetting the
attempted murder of two victims. The following summarizes the district court’s findings
and the evidence received at the plea and sentencing hearings.
On November 22, 2006, Cole and Wayne Armstrong -Morrow met with S.A. and
J.K. in a car to s ell them marijuana . Both S.A. and J.K. were shot in the head with a
9-millimeter Glock pistol. S.A. died in the car and police found J.K. lying on the street
bleeding from a neck wound. Witnesses heard gunshots and then saw Cole and
Armstrong-Morrow running from the car. Cole was later heard saying that he had to shoot
the victims because they were always arguing with him. In a post -Miranda statement,
Armstrong-Morrow stated that Cole had shot both victims.
Cole was i ndicted by a grand jury on counts of first -degree murder, attempted
first-degree murder , and third-degree sale of a controlled substance. After trial
commenced, Cole accepted the st ate’s offer for a plea agreement and pleaded guilty to
aiding and abetting the second-degree intentional murder of S.A., aiding and abetting the
attempted first-degree murder of J.K., and third-degree sale of a controlled substance. The

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plea agreement included the specific sentences that he would receive, including an upward
durational departure for aiding and abetting the attempted murder of J.K.1 The district
court accepted the plea agreement and, in April 2008, sentenced Cole in accordance with
the plea agreement to 261 months in prison for aiding and abetting the murder of S.A.; a
consecutive 240 -month sentence for aiding and abetting the attempted murder of J.K. ,
stayed for 20 years; and a 33 -month concurrent sentence for the sale of a controlled
substance. The remaining charges were dismissed.
In February 2020, Cole filed a motion in district court to correct and reduce his
sentence under Minn. R. Crim. P. 27.03, subd. 9, arguing that his sentence is unauthorized
by law because he received multiple sentences for offenses arising out of a single c ourse
of conduct. The district court denied in part and granted in part Cole’s motion. The court
held that (1) the prohibition against multiple convictions arising out of the same course of
conduct under Minn. Stat. § 609.035 (2006) does not apply because there were multiple
victims, (2) Cole’s consecutive sentences for aiding and abetting murder and aiding and
abetting attempted murder did not unfairly exaggerate the criminality of his conduct , and
(3) Cole should not have been sentenced for third -degree sale of a controlled substance
because it was part of the same b ehavioral incident. Accordingly, the district court
maintained Cole’s sentences for aiding and abetting murder and aiding and abetting

1 The upward departure on the aiding and abetting attempted-murder conviction was based
on the facts that Cole left the victim bleeding with a gunshot wound without calling for
medical help and that the offense occurred during the commission of a drug sale.

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attempted murder, but vacated his sentence for third-degree sale of a controlled substance.2
Cole appeals.
DECISION
I. Cole’s motion must be treated as a petition for postconviction relief because his
sentence was part of a negotiated plea agreement and his motion is time-
barred.

Cole argues that the district court abused its discretion by denying his motion to
correct his sentence. We review a district court’s denial of a motion to correct a sentence
for abuse of discretion. Townsend v. State , 834 N.W.2d 736, 738 (Minn. 2013).
“Specifically, we review the district court’s legal conclusions de novo and its factual
findings under th e clearly erroneous standard.” Id. The defendant bears the burden of
proving the illegality of his sentence. Williams v. State, 910 N.W.2d 736, 742-43 (Minn.
2018).
The Minnesota Rules of Criminal Procedure provide that a “sentence not authorized
by law” may be corrected at any time. Minn. R. Crim. P. 27.03, subd. 9. The state argues
that this rule is not applicable because Cole’s sentence was negotiated as part of his plea
agreement. The state maintains that the motion must be treated as a petition f or
postconviction relief and, as such, is time-barred.3 We agree.

2 The state did not appeal the district court’s order vacating the sentence for the third-degree
sale conviction.

3 We note that the district court did not reach this issue and based its decision on the merits
of Cole’s argument, which we address below . This court, nevertheless, “can affirm the
denial of postconviction relief on grounds other than those on which the postconviction
court relied.” Dukes v. State, 718 N.W.2d 920, 921-22 (Minn. 2006).

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The Minnesota Supreme Court has made clear that Minn. R. Crim. P. 27.03, subd. 9,
does not apply to sentences imposed pursuant to a plea agreement where the sentence was
negotiated as part of the agreement. State v. Coles , 862 N.W.2d 477, 481 (Minn. 2015).
In Coles, the supreme court reviewed a defendant’s motion to correct his sentence brought
more than two years after his conviction became final. Id. at 479. The defendant was
sentenced pursuant to the terms of a plea agreement where the state agreed to dismiss
several charges, and the defendant agreed to receive a sentence involving an upward
durational departure on a lesser charge . Id. at 47 7. The issue presented to the supreme
court was whether the defendant, given that the sentence was negotiated as part of a plea
agreement, “may challenge his sentence in a motion to correct his sentence, [under] Minn.
R. Crim. P. 27.03, subd. 9 . . . or whether his challenge must be br ought in a petition for
postconviction relief, [under] Minn. Stat. § 590.01, subd. 1.” Id. at 477-78.
The supreme court determined that, “[i]n contrast to the comprehensive language of
section 590.01 [relating to petitions for postconviction relief] , the plain language of Rule
27.03 is limited to sentences.” Id. at 480. The court reasoned that, because the defendant
entered into a negotiated plea agreement accepted by the district court, if the defendant’s
sentence was modified , “‘the terms of the plea agreement’ the parties reached will, in
effect, have been rejected.” Id. “If the defendant succeeds in reducing his or her sentence,
he or she retains the benefit of the reduced criminal charge but the State no longer receives
the benefit of the longer sentence.” Id. at 481. The court noted that, since the sentence
was part and parcel of a negotiated plea agreement, the de fendant’s motion to reduce the
sentence necessarily impacted more than “ simply the sentence. ” Id. at 481 -82.

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Consequently, the supreme court concluded that rule 27.03 was not applicable because the
sentence implicated the plea agreement itself, and that the motion must therefore be treated
as a petition for postconviction relief. Id.
The sentences here were also imposed as part of a negotiated plea agreement and
thus present the same scenario as in State v. Coles. Two weeks of the trial had already
elapsed by the time the plea agreement was presented to the court. Cole was being tried
on charges of first-degree murder and attempted first-degree murder and was facing a life
sentence if convicted of the murd er charge. During the plea hearing, the district court
characterized the plea agreement as “a very favorable negotiation for the defendant.” Since
this plea agreement contained both reduced charges and an agreement on the specific
sentences to be imposed , including the upward durational departure on the aiding and
abetting attempted-murder charge, Cole’s motion does not impact “simply the sentence”
and, as in Coles, rule 27.03 does not apply. Because his request for correction of his
sentence implicates the plea agreement itself, Cole’s motion must be construed as a petition
for postconviction relief under chapter 590 of the Minnesota statutes.
Section 590.01 of the postconviction statute provides that “[n]o petition for
postconviction relief may be filed more than two years after . . . the entry of judgment of
conviction or sentence if no direct appeal is filed.” Minn. Stat. § 590.01, subd. 4 (a)(1)
(2018). Because Cole filed his motion almost 12 years after the entry of his sentence and
did not file a direct appeal, his mo tion is barred by the two-year limitations period set out
in Minn. Stat. § 590.01, subd. 4 (2018). Therefore, the district court did not abuse its
discretion by denying Cole’s motion to correct or reduce his sentence.

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II. In addition to being time-barred, Cole’s claims fail on the merits.

Were we to review Cole’s arguments on the merits, they would fail. First, with
regard to his argument that he should not have been sentenced for both aiding and abetting
the murder of S.A. and aiding and abetting the attempted murder of J.K., multiple sentences
are appropriate when the crime involves multiple victims, even when the offenses arise out
of a single behavioral incident. State v. Skipintheday, 717 N.W.2d 423, 426 (Minn. 2006).
Here, there were two victims and thus it was appropriate to impose two sentences.
Cole also contends that imposing consecutive sentences for the two crimes, aiding
and abetting the murder of S.A. and aiding and abetting the attempted m urder of J.K.,
unfairly exaggerate s the criminality of his conduct because sentencing him to both
“effectively doubled his sentence.” His sentence for aiding and abetting attempted murder,
however, was stayed. Thus, if Cole satisfies the conditions of the stayed sentence, he will
only serve a prison sentence for one of the crimes.4
Moreover, consecutive sentences under comparable ci rcumstances have been
affirmed as reasonable in many other cases. For example, in State v. Cruz -Ramirez, the
supreme court held that a sentence of life in prison for first -degree murder, plus three
consecutive 186-month sentences for attempted first -degree murder of the other victims ,

4 The conditions for Cole’s stayed sentence are: (1) he “pay restitution to [J.K.] for his
medical expenses caused by the shooting, to the extent that they’re not paid by insurance
or some other third -party medical provider”; (2) he remain law -abiding; (3) he has no
possession of firearms; (4) he have no controlled -substance offenses; and (5) he has “no
contact with [J.K.].”

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did not unfairly exaggerate the criminality of his conduct . 771 N.W.2d 497, 501, 512
(Minn. 2009). The court noted that “we have upheld similar sentences before.” Id. at 512.
Here, Cole c hallenges his stayed 240-month sentence for aiding and abetting
attempted first-degree murder . Because Cole’s sentence was stayed, as opposed to
executed, Cole’s sentence is arguably more lenient that Cruz’s consecutive, executed
186-month sentence for the same offense. In addition, we note , as did the district court ,
that Cole’s “bottom of the Minnesota Sentencing Guideline box” for the aiding and abetting
murder conviction must be balanced against the upward durational departure for the aiding
and abetting attempted-murder conviction. Finally, Cole agreed to the upward durational
departure as part of his plea agreement and expressly waived his right to a trial on the facts
underlying the upward departure.
Because Cole’s sentence was consistent with past sentences received by other
offenders for similar offenses, the sentence does not unfairly exaggerate the criminality of
his conduct. State v. Alger , 941 N.W.2d 396, 403 (Minn. 2020). Therefore, the district
court did not abuse its discretion in upholding Cole’s sentences on the two aiding and
abetting convictions.
Affirmed.