Brian Lee Wilbur, petitioner, Appellant, vs. State of Minnesota, Respondent.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006). STATE OF MINNESOTA IN COURT OF APPEALS A07-1761 Brian Lee Wilbur, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed September 16, 2008 Affirmed Johnson, Judge Hennepin County District Court File No. 27CR97048923 Brian Lee Wilbur, OID No. 116432, MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant) Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and Mike Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent) Considered and decided by Johnson, Presiding Judge; Halbrooks, Judge; and Collins, Judge.* * Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION JOHNSON, Judge Brian Lee Wilbur appeals from the district court s denial of his third request for postconviction relief. We conclude that Wilbur s claim is procedurally barred because the claim was raised and decided in two prior postconviction proceedings and, therefore, affirm. FACTS On September 18, 1997, a Hennepin County jury found Wilbur guilty of secondand fourth-degree criminal sexual conduct and two counts of first-degree burglary. On October 21, 1997, the district court sentenced Wilbur to 360 months of imprisonment on the second-degree criminal-sexual-conduct charge and to a concurrent sentence of 68 months on one of the burglary counts; the remaining criminal-sexual-conduct and burglary charges merged with the other offenses. This court affirmed the conviction. State v. Wilbur, 1998 WL 372773 (Minn. App. July 7, 1998), review denied (Minn. Aug. 31, 1998). On October 3, 2000, appellant filed his first postconviction petition. He sought resentencing on the ground that his sentence was invalid under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). The district court granted Wilbur s petition. On June 19, 2001, the district court resentenced Wilbur to 300 months on the second-degree criminal-sexual-conduct charge but affirmed the other portions of the earlier sentence, including the 68-month concurrent sentence on the burglary offense. 2 On October 12, 2004, Wilbur filed a second petition for postconviction relief. He again sought resentencing, this time on the basis of the United States Supreme Court s then-recent decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The district court denied the petition, holding that Wilbur was not entitled to the retroactive application of Blakely. This court affirmed on the same grounds, citing State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005). Wilbur v. State, A04-2443 (Minn. App. Aug. 29, 2005) (order op.). On July 1, 2007, Wilbur filed a motion to correct his sentence, pursuant to Minn. R. Crim. P. 27.03, subd. 9. He again argued that he was entitled to the retroactive application of Blakely and that his sentence is unlawful. In an order filed September 4, 2007, the district court denied the motion on the ground that it is barred by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). The district court also stated that Wilbur is not entitled to the retroactive application of Blakely. Wilbur appeals. DECISION Wilbur argues that the district court erred because the Knaffla procedural bar does not apply to a motion to correct sentence filed pursuant to Minn. R. Crim. P. 27.03, subd. 9. A motion to correct sentence filed pursuant to the first sentence of rule 27.03, subdivision 9, is a form of postconviction proceeding that is within the scope of chapter 590 of the Minnesota Statutes. See Powers v. State, 731 N.W.2d 499, 501 n.2 (Minn. 2007) (stating that section 590.01 is broad enough to encompass a motion pursuant to [rule] 27.03 ). In a postconviction proceeding, all matters raised in a direct appeal and all claims known but not raised, will not be considered upon a subsequent petition for 3 postconviction relief. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. Additionally, 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, 731 N.W.2d at 501. There are two exceptions to the Knaffla rule. The first was announced in Case v. State, 364 N.W.2d 797 (Minn. 1985), in which the supreme court held that if a novel legal issue is presented, a petitioner is excused from the failure to raise it in a prior proceeding. Id. at 800. The second exception was fully articulated in Fox v. State, 474 N.W.2d 821 (Minn. 1991), in which the supreme court held that a district court may consider an issue otherwise barred by Knaffla when fairness requires. Id. at 825. The second exception often is restated as one that applies when the interests of justice require review. Powers, 731 N.W.2d at 502. The district court concluded that Wilbur s motion is barred by Knaffla because Wilbur made the same argument in his second postconviction action in 2004. See Wilbur, A04-2443. The district court s denial of the motion is proper under Powers, a case that is very similar to this case. Powers moved to correct his sentence pursuant to rule 27.03, subdivision 9, arguing that Blakely retroactively applied to his sentence. 731 N.W.2d at 500-01. The district court denied the motion without a hearing on the ground that it was barred by Knaffla because Powers had raised an almost identical argument under Apprendi in his first postconviction action. Id. The supreme court affirmed, with the following explanation: Powers raised his sentencing argument based on Apprendi in his first postconviction petition. Powers current claim is essentially the same claim, but he cites Blakely in support of 4 his argument as well as Apprendi. Powers does not explain how Blakely has changed his sentencing argument. Moreover, to the extent that the sentencing claim is different based on Blakely, it is Knaffla-barred because Powers could have raised it in his second petition for postconviction relief. Id. at 501-02. Thus, the supreme court clearly applied the Knaffla procedural bar to a motion to correct sentence filed pursuant to rule 27.03, subdivision 9, and concluded that the Blakely claim was barred by the previous Apprendi claim. The same may be said here. Wilbur s Blakely claim is barred because his Apprendi claim was decided on the merits in 2000. Furthermore, Wilbur previously made a Blakely argument, which was decided on the merits in 2004 and 2005. Thus, Wilbur s present motion is barred by Knaffla. Wilbur relies on State v. Stutelberg, 435 N.W.2d 632 (Minn. App. 1989), in arguing that the Knaffla bar does not apply to a motion to correct sentence filed pursuant to rule 27.03, subdivision 9. The Stutelberg opinion, however, did not so hold. The decision in Stutelberg was based on what is now commonly recognized as the second exception to the Knaffla bar. Compare Stutelberg, 435 N.W.2d at 636 ( We believe . . . review is required in the interests of justice. ), with Powers, 731 N.W.2d at 502 (stating that second exception applies if the interests of justice require review. ). In Stutelberg, this court invoked the interests-of-justice exception because the merits of Stutelberg s postconviction claim had not been considered in the prior postconviction proceeding. Id. at 636. The Stutelberg opinion is readily distinguishable on this basis. The claim that Wilbur now is pursuing was considered and decided in both his first and second postconviction proceedings. Wilbur has not identified any other feature of his motion 5 that makes it deserving of the second exception to the Knaffla bar. Even if we were inclined to interpret Stutelberg as having held that the Knaffla bar does not apply to a motion to correct sentence under rule 27.03, subdivision 9, as Wilbur urges, that holding now would be overruled by the supreme court s opinion in Powers, which applied the Knaffla bar to such a motion. See 731 N.W.2d at 501-02. In sum, we conclude that this case is governed by Powers, that Wilbur s motion is procedurally barred, and, accordingly, that the district court properly denied Wilbur s motion to correct sentence. Affirmed. 6
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