This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A16-0970 John Howard Bartz, petitioner, Appellant,

vs. State of Minnesota, Respondent. Filed December 27, 2016 Affirmed Cleary, Chief Judge Winona County District Court File No. 85-CR-11-598
John Howard Bartz, Bayport, Minnesota (pro se appellant) Lori Swanson, Attorney Gene ral, St. Paul, Minnesota; and Karin L. Sonneman, Winona County Attorn ey, George R. Kenned y, Assistant County Attorney, Winona, Minneso ta (for respondent)
Considered and decided by Schellhas, Presiding Judge; Cleary, Chief Judge; and Ross, Judge. U N P U B L I S H E D O P I N I O N CLEARY , Chief Judge On appeal from the district court’s denial of his motion for correction of sentence, appellant John Howard Bartz argues that the sentencing judge was disqualified from2 presiding over his case and that the district court erred by denying his motion, because: (1) his jail credit was miscalculated; (2) his sentence was illegally modified; and (3) the sentence imposed on him was not authorized by law. Because we conclude that the sentencing judge was qualified to preside over appellant’s case and properly denied appellant’s motion for correcti on of sentence, we affirm. FACTS In March 2011, appellant argued with his live- in girlfriend, T.B. T.B. went to the home of J.S., her mother. The following day, appellant drank for several hours and went to J.S.’s house. Appellant broke a window, entered the hous e, and began searching for T.B. Appellant then began to choke J.S. T.B., who had been hiding, emerged, and appellant let go of J.S. and began to choke T.B. When police arrived, they found appellant straddling and choking T.B. on a bed. The o fficers forcibly removed appellant from T.B. Appellant was charged with ten criminal counts and reached a plea agreement with the state. Pursuant to this agreement, appella nt pleaded guilty to firs t-degree burglary and entered Norgaard pleas 1 to third-degree assault with subs tantial bodily harm and attempted first-degree assault. The state agreed to dism iss the remaining charges. Appellant and the state jointly agreed to the “presumptive guideline[s] sentence for each offense, to be sentenced consecutively.” The ag reement stated that “[i]t is the belief of the parties that this will result in the imposition of a sentence of 113 months.” It also acknowledged that

1 State ex rel. Norgaard v. Tahash , 261 Minn. 106, 111-14, 110 N.W.2d 867, 871-72 (1961), allows a defendant to plead guilty even though he claims not to remember his alleged conduct.3 the state would argue for commi tment to the commissioner of corrections and execution of the sentence, while appellant would argue for a downward dispositional departure to a stay of execution. A sentencing hearing was held on August 11, 2011. Several witnesses testified, including two psychologists. While the psyc hologist called by appellant testified that appellant was suffering from the effects of pos t-traumatic stress disorder while strangling T.B., the psychologist called by the state disputed that diagno sis and instead diagnosed him with chemical dependency an d a personality disorder. A Wi nona County jail administrator also testified and explained that appellant was polite and compliant in jail. T.B. testified that appellant is a “lovi ng person” and a “[v]ery good dad” and requested that he be allowed to come home. Two victim impact statements were read, and the district court considered information included in appellant’s pr esentence investigation (PSI) report. The judge ordered appellant to serve consecutive sentences of 60 months in prison for first-degree burglary and 48 months in prison for attempted first-degree assault. He additionally ordered a 15-month sentence for third-degree assault. Following appellant’s request to execute his sentence for third-degr ee assault, the sentencing judge ordered that the 15-month sentence was to be served concu rrently with appellant’s first-degree burglary sentence. During the hearing, the sentencing judge explained that both parties’ attorneys had expected that appellant would be senten ced to 113 months, b ecause they expected appellant to receive the presumptive sentence of 58 months for firs t-degree burglary and the presumptive sentence of 55 months for atte mpted first-degree assault. The parties anticipated that these sentences would be calc ulated with one crimin al-history point for4 first-degree burglary and with two criminal-h istory points for atte mpted first-degree assault. The sentencing ju dge used zero criminal-histo ry points when calculating appellant’s sentence for attempted first-degree assault. As a result, the presumptive nondeparture range for attempted first-degree a ssault was 37 to 51.5 months, with a middleof-the-box sentence of 43 months. During sent encing, the sentencing judge noted that he imposed a total of 108 months, five months less than appellant expected, and explained that the sentence was proper under the circumstances. On appeal, appellant argued that the se ntencing judge erred by denying his motion for a downward dispositional departure and by executing his sentences consecutively rather than concurrently. State v. Bartz , No. A11-2013, 2012 WL 3892144, at *3 -4 (Minn. App. Sept. 10, 2012), review denied (Minn. Nov. 27, 2012). This court affirmed on September 10, 2012, concluding that the district court properly considered the reasons that were offered to support a departure and di d not abuse its discretion by executing the sentences consecutively. Id. In November 2014, appellant f iled two motions. In the first, appellant requested that the district court issu e an “Order of Recusal” upon the sentencing judge. In the second, appellant moved to wi thdraw his guilty plea. In December 2014, the sentencing judge recused himself from any further consideration of appellant’s case. A different judge was assigned, a nd, on March 23, 2015, this j udge denied appellant’s motion to withdraw his plea. Appellant appealed, a nd this court affirmed, concluding that all but one of appellant’s claims we re procedurally barred under State v. Knaffla , 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1 976), and that the remaining claim was without merit. Bartz5 v. State , No. 15-0759, 2016 WL 456927, at *2-3 (Minn. App. Feb. 8, 2016), review denied (Minn. Apr. 27, 2016). In April 2016, appellant filed a motion in district court, seeking sentence correction under Minn. R. Crim. P. 27.03, subds. 9-10. In his motion, appellant asserted that the sentencing judge miscalculated his jail credit , improperly increased the sentence imposed during the sentencing hearing, and wrongfully departed from the parties’ agreement to a “presumptive guideline[s] sentence.” In May 2016, the sentencing judge denied appellant’s motion, concluding that: (1) the court properly excluded August 11, 2011, from appellant’s jail credit, because the department of corrections (DOC) was to credit appellant for that date; (2) the court di d not illegally increase appellant ’s sentence; and (3) the court acted within its discretion wh en sentencing appellant and imposed only presumptive sentences. Appellant now appeals. D E C I S I O N I. Qualification of Sentencing Judge Appellant first argues that the sentencing judge was disqualified from presiding over his case and ruling on his April 2016 motion for se ntence correction. Appellant asserts that the judge’s personal history rendered him bias ed, and he points to several actions to demonstrate this bias. Whether a judge is disqualified from pres iding over a case is a question of law, which appellate courts review de novo. In re Jacobs , 802 N.W.2d 748, 750 (Minn. 2011). Cause for removal of a judge exists if the j udge would be disqualifie d under the Minnesota Code of Judicial Conduct. Id. at 751. The code provides th at “[a] judge shall disqualify6 himself or herself in any pro ceeding in which the judge’s impartiality might reasonably be questioned.” Minn. Code of J ud. Conduct Rule 2.11(A). Al though judges are to avoid even the appearance of impropriety, “a judge who feels able to preside fairly over the proceedings should no t be required to step down upo n allegations of a party which themselves may be unfair or which simply indicate dissatisfaction with the possible outcome of the litigation.” Jacobs , 802 N.W.2d at 752 (quotatio n omitted). The “standard for determining whether a judge must be disqualified due to an appearance of partiality is whether a reasonable examiner, with full knowledge of the f acts and circumstances, would question the judge’s impartiality.” Id. at 753. Appellant first argues that the sentencing judge was biased because of his personal history. We presume that j udges are “able to approach every aspect of each case with a neutral and objective disposition.” Id. at 754 (quotation omitted). An examination of the facts and circumstances must take into account the expectati on that judges will not allow their personal interests to a ffect their decision-making. Id. Even assuming that appellant is correct about the sentencing judge’s personal history, our review of the record shows no evidence that the judge allowed any person al interests to influence his judgment. As evidence of bias, appellant points to the sentencing judge’ s questioning of the psychologist called by the state. “[I]t is within the discretion of the trial court to question a witness called by a party.” Olson v. Blue Cross & Blue Shield , 269 N.W.2d 697, 702 (Minn. 1978). To determine whether a district court showed bi as by questioning a witness, the Minnesota Supreme Court has considered the strength of the questioning and whether the district court had a duty to make a decision in the case. Id. Here, the questioning was7 not so strong as to indicate prejudice, and the judge himself had a duty to decide appellant’s sentence. As a result, the judge’s questioning of the state’s witness does not show bias. Appellant next argues that the sent encing judge showed bias by disclosing information from his PSI report to the courtroom in violati on of Minn. Stat. § 609.115, subd. 6 (2010). Minn. Stat. § 609.115, subd. 6, provides that a PSI report shall not be disclosed except in certain circumstances, su ch as to the partie s, the commissioner of corrections, and the local jail, “or as otherwise directed by the court.” From our review of the record, we conclude that the sentencing judge did not violate Minn. Stat. § 609.115, subd. 6, or exhibit bias by discussing the contents of appellant’s PSI report when determining and justifying the sentences imposed. Appellant next asserts that the sentencing judge conducted an improper independent investigation and showed bias, because he cite d cases that were not cited by the state. A court is not limited to considering only those ca ses cited by the parties. Rather, “[e]very court of this state shall take judicial notice of the common law and statutes of every state, territory, and other jurisdiction of the United Stat es.” Minn. Stat. § 59 9.04 (2014). Because the sentencing judge was required to take judi cial notice of the common law and statutes of every jurisdiction of the United States, hi s citation to cases that neither party had presented provides no evidence that he conducte d an independent investigation. Here, the judge considered the arguments presented by appellant and the state and appropriately reviewed relevant law. The sentencing judge did not conduct an independent investigation or show bias by reviewing and citing ca ses that neither party had presented.8 Finally, appellant argues that the senten cing judge was disqualified from presiding over any proceedings in his case that occurre d after the judge’s December 2014 recusal. However, a judge who recuses himself from a case can later rescind the recusal. Oslin v.
State , 543 N.W.2d 408, 417 (Minn. App. 1996), review denied (Minn. Apr. 1, 1996). A judge’s assignment to a case from which he had earlier recused himself “will not be considered error on appeal where appellants have failed to make a record suggesting interest of the judge or at least his deliberate attempt to conceal an explanation for his actions.” Id. Here, the sentencing judge did not expl ain why he recused himself. Appellant asserts that the judge concealed the reasons for his actions by failing to explain his recusal and subsequent decision to pres ide over appellant’s case. When rescinding a prior recusal, a judge should explain the reas ons for the rescission or provid e the parties an opportunity to accept him despite his prior recusal. Id. It is clearly the best practice for a presiding judge to do so. Noneth eless, this court will not assign erro r based solely upon the presiding judge’s failure to explain his reasons for rescinding a prior recusal. Id. Because appellant has failed to provide evidence to suggest that the judge had an interest in the case or deliberately attempted to conceal an explanation for his actions, we conclude that the sentencing judge was not disqualified because of his prior recusal. Here, a reasonable examiner, with full know ledge of the facts and circumstances, would not question the impartiality of the senten cing judge. For this reason, the sentencing judge was qualified to preside over appellant’s case and rule on hi s motion for correction of sentence.9 II. Motion for Correction of Sentence Appellant next asserts that the distri ct court erred by denying his motion for correction of sentence. A motion for sentence co rrection is addressed to the district court’s discretion and will be reversed on appeal only when discretion is no t properly exercised and the sentence is unauthorized by law. State v. Cook , 617 N.W.2d 417, 419 (Minn. App. 2000), review denied (Minn. Nov. 21, 2000). In his motion for correction of sentence, appellant requested relief under Minn. R. Crim . P. 27.03, subds. 9-10. Pursuant to Minn. R. Crim. P. 27.03, subd. 9, a “court may at any time correct a sentence not authorized by law.” Minn. R. Crim. P. 27.03, subd. 10, furt her authorizes a court to correct at any time clerical mistakes in a judgment, order, or in the record arising from oversight or omission. Jail Credit Calculation Appellant first argues that he was entitled to a recalculation of his jail credit under Minn. R. Crim. P. 27.03, subds. 9-10. Because the record provides no evidence of a clerical error, this court need only determine whether the district court incorrectly calculated appellant’s jail credit and imposed a sentence not authorized by law. The decision to award jail cr edit is not discretionary and is a mixed question of fact and law. State v. Johnson , 744 N.W.2d 376, 379 (Minn. 2008 ). Appellate courts review a district court’s interpretation of the rules of criminal procedure de novo and its factual findings under the clearly erroneous standard. Id. “The defendant bears the burden of establishing entitlement to cred it for time spent in custody during criminal proceedings.” Id.10 Appellant was detained in jail beginning onMarch 23, 2011. On August 11, 2011, appellant was sentenced and transferred to the custody of the DOC. The parties agree that the district court declined to grant jail credit for August 11, 2011. Ap pellant argues that he is entitled to credit for this da y and that the district court should have awarded him 142 days jail credit. He asserts that his superv ised-release date should be Thursday, March 23, 2017, but was incorrectly calculated as Friday, March 24, 2017, because of the district court’s failure to award jail credit for August 11, 2011. 2 The state argues that August 11, 2011 should count toward appellant’s time serv ed in the DOC and that the district court properly denied appellant’s request for correction of his jail credit. To support his argument, appellant cites State v. Jackson , 557 N.W.2d 552 (Minn. 1996), for the proposition that a defendant shoul d receive jail credit for each day or partial day during which he is held in jail. In Jackson , the Minnesota Supreme Court quoted our unpublished Kaliszewski opinion and explained that “‘[i]n computing jail time credit, each day in jail should be counted.’” Jackson , 557 N.W.2d at 554 (quoting Kaliszewski v. State , No. C5-87-2043, 1988 WL 15869, at *1 (Minn. App. Mar. 1, 1988)). “Rule 27.03 and the sentencing guidelines both require credit for all time spent in custody.” Id. (quotations omitted). As a result, the supr eme court concluded “that if a defendant spends part of a day [in jail] on the day of arrest , and part of a day in jail on the day of release, he should receive a full credit for each day.” Id.

2 Appellant explains that the DOC listed his release date as March 27, 2017, because the DOC calculated his release date as occurring on March 24, 2017, and ha s a policy against releasing inmates on Fridays, Saturdays, and Sundays. As a re sult of this policy, appellant’s Friday, March 24, 2017 release date was adjusted to Monday, March 27, 2017.11 However, appellant’s case is unlike Jackson and Kaliszewski . In Jackson , the Minnesota Supreme Court determ ined that a defendant is en titled to receive a full day of credit for his final day in jail when he spends part of the day in jail on the day of release. Id. Similarly, in Kaliszewski , this court concluded that a de fendant was entitled to a day of jail credit on the day of his release from jail

. Kaliszewski , 1988 WL 15869, at *1-2. Here, however, appellant is demanding jail credit for the day on wh ich he was transferred from jail to the DOC. A defendant who is transferre d from one state establishment to another is entitled to only one day of custody credit for the transfer date. 3 This rule properly credits a defendant for all time spent in custody in connec tion with an offens e and ensures that jail-credit awards are given fairly and equitably. See State v. Arend , 648 N.W.2d 746, 748 (Minn. 2002) (explaining that a defendant is entitled to jail credit fo r all time in custody for an offense and that jail- credit awards are governed by “principles of fairness and equity”). Appellant argues that he has demonstratedthat the DOC failed to credit him for August 11, 2011. Although the record indicates that the DOC likely erred in calculating appellant’s supervised-release date, such an error does not entitle appellant to relief under Minn. R. Crim. P. 27.03, subd. 9. A motion brought under Minn. R. Crim. P. 27.03, subd. 9, provides for review of the legality of the district court’s sentence at the time it was

3 In Kaliszewski , this court explained that a defend ant, who was transferred from a Utah jail to a Washington Coun ty jail, was entitled to only one day of credit for the transfer date. Id. Although our opinion in Kaliszewski is not precedential, we find its reasoning persuasive. See Minn. Stat. § 480A.08, subd. 3 (2014) (“Unpublished opinions of the Court of Appeals are not precedential.”); Dynamic Air, Inc. v. Bloch , 502 N.W.2d 796, 800 (Minn. App. 1993) (holding that un published opinions may be persuasive).12 imposed, but is not the proper procedure to obt ain judicial review of the commissioner’s administrative decision implementing that sentence. State v. Schnagl , 859 N.W.2d 297, 302-04 (Minn. 2015). Because Minn. R. Crim . P. 27.03, subd. 9, provides no relief for errors committed by the DOC whenimplementing a sentence, the district court did not err by denying appellant’s request to recalculate his jail credit. Appellant may obtain judicial review of the commissioner’s implementation of the sentence by filing a petition for writ of habeas corpus in which the co mmissioner is named as a party. Id. at 304. Modification of Sentence Appellant argues that the district court e rred by denying his request to reduce his sentence for first-degree burglary to 58 months . He asserts that the court imposed a 58- month sentence and modified his sentence to 60 months in violation of Minn. R. Crim. P. 27.03, subd. 9, which allows a court to modi fy a sentence during a stay of execution or imposition of sentence if the court does no t increase the period of confinement. Appellant’s argument focuses u pon the language that the district court used during the sentencing hearing. The district court firs t stated, “That the proper sentence [for firstdegree burglary] or the presumptive senten ce I should say is a commitment to the Commissioner of Corrections, and I’m going to sentence you . . . to be committed to the Commissioner of Corrections for 58 months.” The court late r said, “On No. 1 [the firstdegree-burglary offense] I’m going to impose a sentence of 60 months.” The sentencing hearing transcript is ambiguous as to the sentence that the district court imposed for first-degree burglary. This court has previously held that “[w]hen an orally pronounced sentence is ambiguous . . . the judgment and commitment order is13 evidence which may be used to de termine the intended sentence.” State v. Staloch , 643 N.W.2d 329, 331 (Minn. App. 2002) (quotati on omitted). The very purpose of the written order is “to help clarify an ambiguous oral sentence by providing evidence of what was said from the bench.” Id. (quotation omitted). Here, the district court’s warrant of commitment clarifies the ambiguous oral sent ence and clearly provides that a 60-month sentence was imposed for first-degree burglary . Because a 58-month sentence was never imposed, the district court did not increase the period of appellant’s confinement in violation of Minn. R. Crim. P. 27.03, subd. 9. The district court did not err by denying appellant’s request to reduce his sentence for first-degree bur glary to 58 months. Sentences Unauthorized by Law Finally, appellant argues that the distri ct court erred by denying his motion for sentence correction, because the sentences impos ed violated the pleaagreement and were unauthorized by law. “[T]he trial court judge must reject or accept the plea of guilty on the terms of the plea agreement.” Minn. R. Cr im. P. 15.04, subd. 3(1). Appellant asserts that the plea agreement, which stated that he was to receive a “p resumptive guideline[s] sentence for each offense,” required the court to impose the middle-of-the-box sentences of 58 months for first-degree burglary and 43 months for attempted first-degree assault. He argues that the district court misconstrue d the plea agreement to allow it to impose any sentence within the presumptiv e guidelines range and errone ously imposed sentences of 60 months for first-degree burglary and 48 m onths for attempted first-degree assault. Appellant asserts that by imposing the 60-month and 48-month sentences, the court violated Minn. R. Crim. P. 15.04, subd. 3(1) and thereby imposed a se ntence unauthorized14 by law. As a result, appellant argues that he is entitled to sentence correction under Minn. R. Crim. P. 27.03, subd. 9. The state counters that the district court properly denied appellant’s request to reduce his sentence, because appellant’s claim should be treated as a petition for postconviction relief. The Minnesota Supreme C ourt has recognized that courts, in some circumstances, have the authority to treat a request to correct a sentence purportedly brought under Minn. R. Cr im. P. 27.03 as a petition fo r postconviction relief. State v. Coles , 862 N.W.2d 477, 480 (Minn. 2015). Appellant’s claim does not fall within the lim ited scope of Minn. R. Crim. P. 27.03, subd. 9. The Minnesota Supreme Court has explained that “a challenge to a sentence imposed as part of a plea agreement involv es more than simply the sentence.” Coles , 862 N.W.2d at 481. In many plea agreements, the conviction and sent ence components are interrelated. Id. “[W]here the sentence at issue is imposed as part of a plea agreement and the appellant’s requested relief would alter the benefit of the bargain struck, Minn. R. Crim. P. 27.03, subd. 9 does not apply.” Johnson v. State , 877 N.W.2d 776, 779 (Minn. 2016) (quotations omitted). Here, appellant’s convictions and sentences are interrelated parts of a negotiated package that significantly benefited both parties. In the plea agreem ent, appellant agreed to plead guilty to first- degree burglary, enter Norgaard pleas to third-degree assault and attempted first-degree assault, and accept a presumptive guidelines sentence for each offense in exchange fo r the state’s dismissal of the remaining charges. While appellant benefited from the dismissal of the remaining charges against him, the state benefited from15 the guarantee that appellant would be given a presumptive guidelines sentence for each conviction. Appellant’s challenge to his se ntences implicates his convictions and could alter the benefit of the plea bargain. As a resu lt, we conclude that Minn. R. Crim. P. 27.03, subd. 9, does not apply. 4
Because Minn. R. Crim. P. 27. 03, subd. 9, provides no relie f for the district court’s alleged failure to sentence appellant according to the plea agreement’s terms, appellant’s claim should be characterized as a petition for postconviction relief. Claims asserted in a postconviction petition may be Knaffla -barred. Johnson , 877 N.W.2d at 779-80. The Knaffla rule provides that “[o]nce a direct appeal has been taken, all claims that were raised in the direct appeal and all claims that were known or should havebeen known but were not raised will not be consid ered upon a subsequent petiti on for postconviction relief.” White v. State , 711 N.W.2d 106, 109 (Minn. 2006). However, there are two recognized exceptions to this rule: (1) a claim known bu t not raised on direct appeal is not barred if its novelty was so great that its legal basis was not reasonably available when the direct appeal was taken; and (2) a claim is not ba rred in limited situati ons “when fairness so requires” if the petitioner did not deliberately and inexcusabl y fail to raise the issue on direct appeal. Leake v. State , 737 N.W.2d 531, 535 (Minn. 2007).

4 We note that the sentences imposed were w ithin the presumptive gui delines ranges. The district court imposed a 60-month sentence for first-degree burglary and a 48-month sentence for attempted first-degree assault. The presumptive range for first-degree burglary with one crimin al-history point is 50to 69 months. Minn. Sent. Guidelines II.G, IV-V (2010). The presumptive range for attempted first-degr ee assault with zero criminalhistory points is 37 to 51.5 months. Id.16 Appellant’s claim that the district court imposed sentences that violated the plea agreement is based upon evidence that was available to appellant before his direct appeal occurred. As a result, this cl aim was known or should have been known at the time of the direct appeal. Because appellant has faile d to establish that any exception to the Knaffla rule applies, his claim is Knaffla -barred. The district c ourt did not err by denying appellant’s motion for co rrection of sentence. Affirmed.