1

STATE OF MINNESOTA

IN SUPREME COURT

A13-0789

Court of Appeals Gildea, C.J.

Dissenting, Page, J.

Dissenting, Stras, J.

State of Minnesota,

Respondent, 

vs. Filed: April 15, 2015

Office of Appellate Courts

Dakari Michael Coles,

Appellant.

________________________

Lori Swanson, Attorney General, Saint Paul, Minnesota; and 

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County 

Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant 

State Public Defender, Saint Paul, Minnesota, for appellant.

________________________

S Y L L A B U S

1. Because appellant’s motion to correct his sentence implicates his plea 

agreement, appellant’s exclusive remedy is a petition for postconviction relief.
2

2. Because appellant’s motion for correction of his sentence was filed more 

than 2 years after his conviction became final, the motion is time-barred by Minn. Stat. 

§ 590.01, subd. 4(a) (2014). 

Affirmed.

O P I N I O N

GILDEA, Chief Justice. 

Appellant Dakari Michael Coles brought a motion challenging his sentence. The 

district court sentenced Coles pursuant to the terms of a plea agreement in which the 

State agreed to dismiss several charges, and Coles agreed to receive a sentence for a 

lesser charge that was an upward durational departure. The question presented is whether 

Coles may challenge his sentence in a motion to correct his sentence, see Minn. R. Crim. 

P. 27.03, subd. 9 (Rule 27.03), or whether his challenge must be brought in a petition for 

postconviction relief, see Minn. Stat. § 590.01, subd. 1 (2014). The district court held 

that Coles’ challenge must be brought as a petition for postconviction relief and that his 

motion was time-barred by Minn. Stat. § 590.01, subd. 4(a) (2014). The court of appeals 

affirmed. Because we conclude that Coles’ challenge to his sentence must be brought in 

a petition for postconviction relief, we affirm.

In 2003, Coles, who was then 16, was at a residence along with an 11-year-old and 

a 9-year-old. The younger child saw Coles with his penis in the other child’s mouth. 

Coles offered the younger child $10 to keep what she saw to herself, but she told an adult

about the incident.
3

Respondent the State of Minnesota filed a delinquency petition charging Coles 

with first-degree criminal sexual conduct under Minn. Stat. § 609.342, subds. 1(a), 2 

(2014), Minn. Stat. § 609.109, subd. 7 (2002). In a separate delinquency petition, the 

State charged Coles with first-degree aggravated robbery under Minn. Stat. §§ 609.245, 

subd. 1, 609.11, 609.05 (2014), and two counts of simple robbery under Minn. Stat. 

§ 609.24 (2014) for another incident. The State filed motions seeking to certify Coles as 

an adult for prosecution.1

 

Assuming that Coles was certified as an adult, the presumptive sentence for the 

first-degree criminal sexual conduct charge was 144 months and the presumptive 

sentence for first-degree aggravated robbery was 48 months. Minn. Stat. § 609.342, 

subd. 2(b); Minn. Sent. Guidelines IV & n.2 (2003). Consecutive sentencing for these 

offenses would not have been considered a departure under the guidelines. Minn. Sent. 

Guidelines II.F. (2003). As a result, Coles could have received a presumptive, aggregate 

sentence of 192 months for the charges.

On August 28, 2003, Coles and the State reached a plea agreement. They agreed 

that Coles would plead guilty to an amended charge of second-degree criminal sexual 

conduct and to first-degree aggravated robbery in exchange for the State dismissing the 

first-degree criminal sexual conduct and simple robbery charges. In addition, the parties 

agreed that Coles would be placed on extended jurisdiction juvenile (EJJ) status, so he 

 1 Coles was subject to a presumption of certification for prosecution as an adult for 

the first-degree criminal sexual conduct and aggravated robbery charges. Minn. Stat. 

§ 260B.125, subd. 3 (2014).
4

could receive treatment, and that he would receive a stayed, 96-month aggregate 

sentence. This sentence was based on two 48-month, consecutive sentences. The

48-month sentence for second-degree criminal sexual conduct was an upward durational 

departure from the presumptive guidelines sentence of 21 months. Minn. Sent. 

Guidelines IV (2003). The imposition of consecutive sentences was also an upward 

departure. Id., II.F.

Coles pleaded guilty to second-degree criminal sexual conduct and first-degree 

aggravated robbery. The district court accepted his guilty plea, placed him on EJJ status,

and sentenced him according to the terms of the plea agreement. During the sentencing, 

the court stated that it based the upward durational departure on the agreement of the 

parties and the age difference between Coles and the victim, which the court said made 

the victim vulnerable.

The basis for the departure is one, this is a negotiation between the 

parties. . . . I would also find another part of this negotiation besides 

admission also had to do with the matter being handled as Extended 

Jurisdiction Juvenile rather than going forward as adult certification. Given 

the age of the child, of the victim in this matter, that I think [a] very strong 

argument can be made for the fact that the age difference given the child’s 

develop—stage of child development being what they are, that there was 

some level of vulnerability for the younger child to being taken advantage 

of by Mr. Coles and would justify the upward departure.

In a subsequent order, the court also noted that Coles “attempted to manipulate” the

younger child “by offering her cash not to tell anyone what she had seen.”

In 2005, the district court found that Coles violated the terms of his EJJ probation 

by failing to complete, and being discharged from, his juvenile sex offender program. 
5

Consequently, the district court revoked Coles’ EJJ status and executed his consecutive,

48-month sentences.2

In 2012, Coles filed a pro se petition for postconviction relief arguing that the 

court had impermissibly sentenced him. While represented by counsel, Coles later filed a 

supplemental petition labeled as a petition for postconviction relief, but requesting relief 

under Minn. R. Crim. P. 27.03, subd. 9. Coles argued that the district court relied on 

improper justifications to support a departure from the presumptive criminal sexual 

conduct sentence. The district court denied relief, concluding that Coles’ request was 

time-barred under the 2-year postconviction statute of limitations, Minn. Stat. § 590.01, 

subd. 4(a). The court determined that the petition for relief was a challenge to Coles’

plea agreement, not just his sentence. The court of appeals affirmed, holding that Coles 

could not use Rule 27.03 “to ignore the substance of his petition.” State v. Coles, 

No. A13-0789, 2013 WL 6570058, at *3 (Minn. App. Dec. 16, 2013). Because Coles’

challenge implicated his conviction, the court of appeals concluded that the district court 

properly construed his request as a time-barred petition for postconviction relief. Id. at 

*3-4. We granted Coles’ petition for review.

Coles argues that his sentence is “not authorized by law” and must be corrected

under Minn. R. Crim. P. 27.03, subd. 9. Coles contends that his sentence is illegal 

because the district court imposed an upward durational departure for his criminal sexual 

 2 Coles is now on supervised release. His sentence expiration date is December 8, 

2017. 
6

conduct sentence without citing any valid “substantial and compelling reasons for 

departure.” Coles asks our court to correct his sentence by reducing “his consecutive 

48-month sentence for criminal sexual conduct to a 21-month concurrent term.” The 

State contends that Coles’ request had to be filed under the postconviction statute and that 

the request is time-barred under that statute. The parties’ arguments present issues 

regarding the interpretation of a procedural rule and statute, questions subject to de novo

review. Christianson v. Henke, 831 N.W.2d 532, 535 (Minn. 2013); Johnson v. State, 

801 N.W.2d 173, 176 (Minn. 2011). 

I.

The parties disagree over whether Coles’ request for correction of his sentence 

was brought under the postconviction statute or under the rules of criminal procedure. 

Minnesota’s postconviction statute allows a person convicted of a crime to petition the 

court to correct a sentence when the sentence “violate[s] the person’s rights under the 

Constitution or laws of the United States or of the state.” Minn. Stat. § 590.01, subd. 1. 

The statute imposes a 2-year time limit on petitions for postconviction relief from “the 

entry of judgment of conviction or sentence if no direct appeal is filed.” Id.,

subd. 4(a)(1). Our rules of criminal procedure also give the court authority to correct a 

sentence in Rule 27.03. The rule provides that “[t]he court may at any time correct a 

sentence not authorized by law.” Minn. R. Crim. P. 27.03, subd. 9 (emphasis added).3

 

 3 Because Rule 27.03 does not provide a time limit for challenges to a sentence 

unauthorized by law, but Minn. Stat. § 590.01 does include such a limitation, an 

(Footnote continued on next page.)
7

Coles labeled his supplemental petition as a petition for postconviction relief. But 

he requested relief pursuant to Rule 27.03. We typically look to the pleadings and the 

relief sought in order to determine the nature of a claim. See Abraham v. Cnty. of 

Hennepin, 639 N.W.2d 342, 350 (Minn. 2002). But the pleadings in this case are not 

dispositive because Coles arguably invoked both the postconviction statute and our 

procedural rule. 

While Coles’ pleading could be read as invoking both the postconviction statute 

and Rule 27.03, the language of the statute and the rule, together with our precedent, 

confirm that Coles’ request falls under the postconviction statute. The language of Minn. 

Stat. § 590.01 is broad and plainly encompasses a motion seeking correction of a 

sentence. See Minn. Stat. § 590.01, subd. 1(1). Based on the statutory language, we have 

recognized that courts in some circumstances have the authority to treat a request to 

correct a sentence purportedly brought under Rule 27.03 as a petition for postconviction 

relief. See Bonga v. State, 765 N.W.2d 639, 642-43 (Minn. 2009). 

In contrast to the comprehensive language of section 590.01, the plain language of 

Rule 27.03 is limited to sentences, and the court’s authority under the rule is restricted to 

 

(Footnote continued from previous page.)

argument could be made that the rule and the statute conflict, thereby raising 

separation-of-powers concerns. Cf. State v. Losh, 721 N.W.2d 886, 890-92 (Minn. 2006). 

Coles, however, does not argue that applying the statute of limitations provided in Minn. 

Stat. § 590.01, subd. 4(a), to his motion to correct his sentence violates the 

separation-of-powers doctrine, and therefore, we will not address the possible conflict. See 

Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that an issue “not argued in 

the briefs” is waived). 
8

modifying a sentence. Minn. R. Crim. P. 27.03, subd. 9 (“The court may at any time 

correct a sentence not authorized by law.” (emphasis added)). We have interpreted Rule 

27.03 narrowly, consistent with its language. See State v. Schnagl, 859 N.W.2d 297, 298

(Minn. 2015) (holding that Rule 27.03 “is not the proper procedure to obtain judicial 

review of” an administrative decision “implementing the sentence imposed”). Our 

decision in Johnson v. State, 801 N.W.2d 173 (Minn. 2011), illustrates this point. 

In Johnson, the defendant filed a motion challenging the sentence the district court 

imposed as a result of the defendant’s guilty plea. Id. at 175. The defendant also 

challenged the validity of his guilty plea. Id. Because the defendant’s challenge went 

beyond the sentence, we held that Rule 27.03 did not apply. See id. at 176. Instead, we 

held that the defendant had to seek relief under the postconviction statute. Id. We reach 

the same conclusion in this case.

The district court imposed the sentence at issue as part of the court’s acceptance of 

the parties’ negotiated plea agreement. See Minn. R. Crim. P. 15.04, subd. 3(1) (noting 

that “the trial court judge must reject or accept the plea of guilty on the terms of the plea 

agreement”). If, as Coles requests, his sentence is modified, “the terms of the plea 

agreement” the parties reached will, in effect, have been rejected. Id. In such a 

circumstance, our criminal rule requires that the defendant be given a chance to withdraw 

his plea of guilty. Id. (“If the court rejects the plea agreement, it must advise the parties 

in open court and then call upon the defendant to either affirm or withdraw the plea.”); 

State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (recognizing that if a court corrects a 
9

sentence that was part of a plea agreement, the defendant “must be allowed to withdraw 

from the plea agreement if he so chooses”). Accordingly, where the sentence at issue is 

imposed as part of a plea agreement, a motion to change that sentence impacts more than 

simply the sentence, and Rule 27.03 does not apply.

But, Coles argues, he is challenging only his sentence, not his plea agreement or 

conviction, and therefore, he has brought a proper Rule 27.03 motion. We have 

recognized, however, that a challenge to a sentence imposed as part of a plea agreement 

involves more than simply the sentence. See State v. Lewis, 656 N.W.2d 535, 539 (Minn. 

2003). In some plea agreements, the conviction component and the sentence component 

are “interrelated.” Id. For example, the parties may have agreed that the defendant 

would be convicted of a reduced criminal charge but only if the defendant received a 

sentence longer than the presumptive sentence for the reduced charge. Id. at 536. 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. See id. at 539.

Faced with such a situation, we held in Lewis that “where the district court finds 

no compelling or substantial circumstances supporting an upward departure in the 

sentence that was agreed upon in a plea agreement, it may consider motions to vacate the 

conviction and the plea agreement.” Id. The basis for the challenge to the sentence in 

Lewis was the same as Coles’ challenge to his sentence. Id. at 537. Moreover, just like 

the defendant in Lewis ̧ Coles received the benefit of a reduced criminal sexual conduct 
10

charge in exchange for agreeing to an upward durational departure on his sentence for 

that reduced charge. See id. at 536. Under Lewis, if the district court reduced Coles’

sentence due to improper departure justifications, which is the relief Coles seeks, the 

court would be “free to consider the effect that changes in the sentence have on the entire 

plea agreement.”4 Id. at 539.

Based on our precedent, it is clear that Coles’ request involves more than simply 

the sentence the district court imposed; it involves the plea agreement itself.5

 The State 

and Coles recognized at the plea hearing that Coles’ sentence and conviction were part of 

a negotiated package in which both Coles and the State received a significant benefit.6

 

 4 In State v. Maurstad, we ordered the district court to correct a sentence agreed 

upon in a plea agreement, relying, in part, on Rule 27.03. 733 N.W.2d 141, 147 (Minn. 

2007) (holding that a “sentence based on an incorrect criminal history score is an illegal 

sentence” and is correctable at any time under Rule 27.03). The plea agreement in 

Maurstad, however, stated that the defendant would “be sentenced according to the 

Minnesota sentencing guidelines.” Id. at 143. Unlike Coles’ requested relief, adjusting 

Maurstad’s sentence to the correct sentence under the guidelines did not deprive either 

side of the benefit of the bargain reached in the plea agreement. See id. The same is not 

true here. If the district court reduced Coles’ criminal sexual conduct sentence, the State 

would no longer get the benefit of a longer sentence for agreeing to a reduced criminal 

sexual conduct charge. 

5 Justice Page’s dissent argues that “had Coles been convicted after trial and given 

an illegal sentence, his sentence would be correctable under Rule 27.03 at any time 

without regard to his conviction.” In that case, however, the conviction and sentence 

would not be interrelated in the way they are in Coles’ case. See Lewis, 656 N.W.2d at 

539. 

6 Justice Page argues that the State will retain “the vast majority of the sentencerelated benefits it received” from the plea agreement even if Coles’ sentence is corrected. 

This argument hinges on the fact that Coles already served his prison sentence. As a 

result, the dissent claims that even if Coles’ sentence were shortened, the State would not 

(Footnote continued on next page.)
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Coles’ lawyer noted that Coles agreed to a longer sentence for second-degree criminal 

sexual conduct because it was “part of the negotiation to go from first degree” criminal 

sexual conduct to second-degree criminal sexual conduct and that it was “a substantial 

benefit to go from crim sex one to crim sex two.” The prosecutor highlighted the 

importance of the sentence length and that the agreed-to 96-month sentence was 

“significantly less” than the sentence for the dismissed charge because “crim sex one 

would be 144 [months] on its own.” Although Justice Page is correct that “there are any 

number of reasons why the State enters into plea agreements,” the parties made it clear 

that in this particular plea agreement, the sentence with an upward departure was a 

crucial reason. 

Because Coles’ challenge to his sentence implicates more than simply his 

sentence, we conclude that it is properly viewed as a petition for postconviction relief 

under Minn. Stat. § 590.01, not as a motion to correct a sentence under Rule 27.03.7

 

 

(Footnote continued from previous page.)

lose the benefit of the sentence agreed to in the plea agreement. This analysis, however, 

ignores that its legal conclusion—that an offender who pleads guilty to a reduced charge 

in exchange for agreeing to an upward departure on his or her sentence may challenge 

that upward departure in a Rule 27.03 motion—would apply to an offender who still had 

years to go on his or her sentence. Moreover, even though Coles fully served his prison 

sentence, he is currently on supervised release. While on supervised release, he is in the 

legal custody of the commissioner of corrections and is “subject to re-incarceration for 

breach of a condition of release.” See State v. Schwartz, 628 N.W.2d 134, 139 (Minn. 

2001). If the district court reduced Coles’ sentence, the State would lose the benefit of 

almost 3 years of his supervised release term.

7 The State offers an alternative argument for why Rule 27.03 does not apply, 

arguing that the scope of the rule is narrow and allows challenges only to sentences that 

(Footnote continued on next page.)
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II.

Coles filed his pleading seeking relief on May 12, 2012, more than 2 years after 

his conviction was final. Having decided that Coles’ request must be construed as a 

petition for postconviction relief, we hold that Coles’ request is time-barred by Minn. 

Stat. § 590.01, subd. 4(a).8

 

Affirmed.

 

(Footnote continued from previous page.)

are contrary to the statutory maximum provided in the criminal statute. Given our 

conclusion that Rule 27.03 does not apply to Coles’ request, it is not necessary for us to 

reach this alternative argument. 

8 Justice Page argues that under our holding “there is in effect no remedy for the 

imposition of an illegal sentence.” If Coles’ sentence were, in fact, illegal, a point we do 

not decide today, the postconviction statute provides a remedy. Instead of waiting nearly 

9 years to bring his postconviction petition, Coles could have brought a timely 

postconviction petition challenging his sentence within 2 years of his conviction. See 

Minn. Stat. § 590.01, subd. 4(a). Moreover, the time-bar in the postconviction statute has 

several exceptions that may allow a court to hear a challenge to a sentence that implicates 

a plea agreement and conviction in an appropriate case. See Minn. Stat. §590.01, 

subd. 4(b). Coles does not contend that he has satisfied any of these exceptions. In 

addition, Minn. Stat. § 590.01 is the exclusive remedy for challenging the validity of a 

conviction “unless it is inadequate or ineffective.” Minn. Stat. § 590.01, subd. 2 (2014). 

Coles, however, does not argue that that the postconviction statute would not be adequate 

or effective and as such we do not address this provision. See Johnson, 801 N.W.2d at 

176 (stating that because the defendant had not argued that a petition for postconviction 

relief would be inadequate or ineffective, his exclusive remedy was a petition for 

postconviction relief, not a Rule 27.03 motion). 
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D I S S E N T

PAGE, Justice (dissenting).

“Curiouser and curiouser!” Lewis Carroll, Alice’s Adventures in Wonderland 

(1865), reprinted in The Annotated Alice 35 (Martin Gardner ed., Bramhall House 1960). 

The result reached by the court and the reasoning behind that result are flawed in a way 

that brings to mind Alice’s exclamation. The court holds that Coles’ motion to correct 

his sentence “is properly viewed as a petition for postconviction relief under Minn. Stat. 

§ 590.01, not as a motion to correct a sentence under Rule 27.03.” This holding rests on 

the court’s unsupported conclusion that the “challenge to his sentence implicates”1 his 

conviction. Even though it is clear from Coles’ motion that he is not challenging his 

conviction, the court arrives at its conclusion by ignoring the fact that a mere change in 

Coles’ sentence does not of necessity require the sentencing court to take any action with 

respect to Coles’ conviction. With apologies to Alice, “Oh dear, what nonsense [the 

court is] talking!” Carroll, supra at 36.

Minnesota Rule of Criminal Procedure 27.03, subdivision 9, provides that a “court 

may at any time correct a sentence not authorized by law” (emphasis added), provided 

that the court “does not increase the period of confinement.” Under the plain language of 

Rule 27.03, a defendant may not challenge his conviction, and Coles has not sought to do 

so in this case. Johnson v. State, 801 N.W.2d 173, 176 (Minn. 2011). While it is true 

 1 Implicate means “[t]o be involved or affected.” Black’s Law Dictionary 770 (8th 

ed. 2004).
D-2

that if Coles’ sentence is corrected the State may choose to seek withdrawal from the plea 

agreement, the State’s act of seeking to withdraw, if taken, does not flow either directly 

or necessarily from the correction of Coles’ sentence. Indeed, the correction of Coles’ 

sentence by itself will not alter his conviction. If his sentence is corrected, Coles would 

still stand convicted of second-degree criminal sexual conduct and first-degree 

aggravated robbery. It is only an independent act by the State seeking withdrawal from 

the plea agreement that could possibly implicate Coles’ conviction. In this case, whether 

the State would seek to withdraw from the plea agreement is purely speculative. 

Interestingly, even if the State were to move to withdraw from the plea agreement, which 

at this point it has not, Coles’ conviction would not be affected unless and until the 

district court, in exercising its discretion, granted the State such relief. See State v. Lewis,

656 N.W.2d 535, 539 (Minn. 2003) (“[W]here the district court finds no compelling or 

substantial circumstances supporting an upward departure in the sentence that was agreed 

upon in a plea agreement, it may consider motions to vacate the conviction and the plea 

agreement.” (emphasis added)); see also id. (“We agree . . . that the district court should 

be free to consider the effect that changes in the sentence have on the entire plea 

agreement.” (emphasis added)).

While the court relies on Johnson, 801 N.W.2d 173, this is a very different case 

from Johnson. In Johnson, we held that the defendant’s Rule 27.03 motion should have 

been brought as a petition for postconviction relief under Minn. Stat. § 590.01 (2014), 

because the motion challenged his conviction. 801 N.W.2d at 176. Unlike here, the 
D-3

defendant in Johnson not only sought a corrected sentence, but also directly challenged 

the validity of his guilty plea, and thus his conviction. Id. at 175. Because the district 

court granted the defendant’s request for a corrected sentence, the only issues on appeal 

in Johnson related to Johnson’s challenge to his conviction. Id. As noted earlier, here 

Coles only seeks correction of his sentence and no issues related to his conviction are 

properly before us. On that basis, I conclude that Coles’ motion does not implicate his 

conviction and was properly brought under Rule 27.03.

The court’s reasoning to the contrary rests on two faulty assumptions. First, the 

court assumes that in every case the State will necessarily lose the benefits of its 

bargained-for plea agreement if a defendant is permitted to bring a motion to correct his 

or her sentence under Rule 27.03, and second, that even if the State loses some of the 

benefits of its bargain it will, in every case, reflexively seek to withdraw from the plea 

agreement. In this case, the court asserts that “the parties made it clear that in this 

particular plea agreement, the sentence with an upward departure was a crucial term.” 

The court also asserts that the State “would lose the benefit of almost 3 years of his 

[conditional] release term” if Coles’ sentence was corrected. While the court’s assertions 

may be accurate, the facts of this case should not dictate the outcome of all cases.

In analyzing the facts of this case, the court ignores three crucial points.2

 First, 

because Coles’ sentence is not authorized by law, the State, on the record before us, was 

 2 While I go into the facts of this case to demonstrate that the court’s statements are 

unsupported, by no means do I suggest that these facts change the plain meaning of 

(Footnote continued on next page.)
D-4

not entitled when it entered into the plea agreement, and is not entitled now, to the benefit 

of the upward sentencing departure. A sentence that is unauthorized by law is an illegal 

sentence. Therefore, it is difficult to understand how the State could actually “lose” a 

benefit if Coles’ sentence is corrected to comply with the requirements of the sentencing

guidelines. It is also worth noting that, if Coles’ sentence is unauthorized by law, the 

State would not “lose” anything here that would not be lost as a result of a timely petition 

for postconviction relief under Minn. Stat. § 590.01, subd. 1. If Coles’ sentence had been 

corrected pursuant to a timely postconviction petition, the State would have received 

much less benefit from its bargain than it actually has received given that Coles has 

served all of the prison time required by the plea agreement and a significant portion of 

the supervised and conditional release periods. Even if his sentence is corrected, Coles’ 

time served cannot be reduced.

Second, given the facts of this case, the court ignores the substantial benefits that 

the State has already received from this illegal sentence, which will not be lost to the 

State if Coles’ sentence is corrected. Regardless of whether Coles’ sentence is corrected, 

the State will retain the vast majority of the sentence-related benefits it received from the 

plea agreement. In addition to the prison sentence, supervised release, and conditional 

release time already served, the State has benefited from not having to prove Coles’ guilt 

beyond a reasonable doubt and not having to face an uncertain outcome at trial. 

 

(Footnote continued from previous page.)

Minn. R. Crim. P. 27.03, subd. 9—that an illegal sentence may be corrected “at any 

time.”
D-5

Additionally, correction of Coles’ sentence will not change Coles’ criminal history score 

going forward or the fact that Coles has a felony conviction.3

Finally, the court ignores the fact that there is no guarantee that the State will in 

fact lose any sentence-related benefit if Coles’ illegal sentence is allowed to be corrected 

under Rule 27.03. A corrected sentence will not always mean a reduced sentence. For 

example, on remand, in the context of Coles’ plea agreement, there is nothing to preclude 

the district court from allowing the State to make the case that there are other substantial 

and compelling circumstances justifying an upward departure. If the State successfully 

made that case, Coles’ sentence would not need to be reduced.

It is true that the State might seek to have Coles’ conviction vacated for the 

reasons articulated by the court if Coles’ sentence was in fact reduced. But it is also true 

that there are any number of reasons why the State enters into plea agreements and why 

the State, in this case and in general, might rationally choose not to seek to vacate a plea 

agreement even if the defendant’s sentence is reduced. The court, however, creates a rule 

that presumes that in every case involving a plea bargain the State will seek to and be 

entitled to withdraw from the plea agreement. That blanket rule disregards the various 

considerations that the State would take into account in deciding whether to seek 

withdrawal. We should not be making decisions based on speculation as to how the

 3 Nor would a determination that Coles’ sentence was illegal entitle him to 

compensation from the State. See Minn. Stat. § 611.362, subd. 1 (2014) (explaining that 

a person must receive “an order under section 590.11 determining that the person is 

entitled to compensation based on exoneration” (emphasis added)).
D-6

parties may proceed on remand or how the district court will rule. Because the State’s 

decision to withdraw from a plea agreement is in fact an independent act that does not 

flow either directly or necessarily from permitting a defendant to challenge his or her 

illegal sentence under Rule 27.03,4 it is improper for our court to decide in advance in all 

cases for all time that every challenge to an illegal sentence affects the underlying 

conviction.

Because an unlawful sentence may, under Rule 27.03, be corrected at any time, 

Coles’ motion to correct his sentence is not time barred. The only question remaining is 

whether Coles is entitled to have his sentence corrected because it is illegal. The answer 

to that question is yes.

The sentence ranges set forth in the Minnesota Sentencing Guidelines “are 

presumed to be appropriate” and a departure from the presumptive sentence must be 

supported by “substantial and compelling circumstances.” Minn. Sent. Guidelines II.D 

(2003). As a general rule, the maximum upward durational departure that can be justified 

by aggravating circumstances is double the presumptive sentence. State v. Evans, 

311 N.W.2d 481, 483 (Minn. 1981). Only in the “extremely rare” cases that present 

“severe aggravating circumstances” may the sentencing court impose a greater-than-

 4 I acknowledge that the State may have difficulty in reconvicting a defendant if the 

defendant’s sentence is corrected many years later under Rule 27.03 and the State would 

otherwise desire to withdraw from the plea agreement. The answer is not, however, to 

ignore the text of the rule, which permits courts to correct an illegal sentence “at any 

time,” Minn. R. Crim. P. 27.03, subd. 9, but instead to formally change the rule.
D-7

double upward departure from the presumptive sentence. State v. Spain, 590 N.W.2d 85, 

89 (Minn. 1999); State v. Mortland, 399 N.W.2d 92, 94 & n.1 (Minn. 1987).

In this case, Coles’ sentence of commitment to the Commissioner of Corrections 

for 48 months for second-degree criminal sexual conduct, Minn. Stat. § 609.343, 

subd. 1(a) (2014), is a greater-than-double upward durational departure from the 

presumptive stayed sentence of 21 months. The record clearly indicates that the reasons 

relied upon by the district court to justify this departure—namely, the agreement between 

the parties and the age difference between Coles and the victim—are improper. See State 

v. Misquadace, 644 N.W.2d 65, 72 (Minn. 2002) (holding that a district court may not 

rely on the plea agreement alone as a basis for an upward departure); State v. Peterson, 

329 N.W.2d 58, 60 (Minn. 1983) (concluding that facts “considered by the legislature in 

determining the severity of the offense” are improper grounds for departure); see also 

Minn. Stat. § 609.343, subd. 1(a) (specifying that a person is guilty of criminal sexual 

conduct in the second degree if “the complainant is under 13 years of age and the actor is 

more than 36 months older than the complainant”). The State contends that other 

information in the record supports the upward departure, specifically the fact that the 

9-year-old witnessed the criminal sexual conduct and Coles attempted to bribe her to 

remain quiet. Although the commission of an offense in the presence of a child can 

provide a valid basis for an upward departure, State v. Profit, 323 N.W.2d 34, 36 (Minn. 

1982), the district court made no finding that the presence of the 9-year-old witness in 

this case made Coles’ conduct sufficiently more severe than the typical second-degree 
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criminal sexual conduct case to justify a greater-than-double durational departure. Such a 

finding is more appropriately made by the district court than our court. Therefore, I 

would remand to the district court for resentencing.

Because Coles’ sentence is a durational departure that is based on improper 

reasons, it is a sentence unauthorized by law that must be corrected under Minn. R. Crim. 

P. 27.03, subd. 9. Cf. State v. Maurstad, 733 N.W.2d 141, 147 (Minn. 2007) (holding 

that a sentence based on an incorrect criminal history score is an illegal sentence that is 

correctable “at any time” under Minn. R. Crim. P. 27.03, subd. 9); Misquadace, 

644 N.W.2d at 72 (holding that “all departures from the Minnesota Sentencing 

Guidelines must be supported by substantial and compelling circumstances”). Under the 

court’s decision, however, for the first time in our court’s history, we hold that there is in 

effect no remedy for the imposition of an illegal sentence. This result cannot stand. It 

contradicts our authority to correct an illegal sentence “at any time” under Rule 27.03, 

subdivision 9, runs counter to the Legislature’s “stated public policy of achieving

uniformity in sentencing” by way of the sentencing guidelines, Maurstad, 733 N.W.2d at 

146, and is inconsistent with our obligation to do justice.

Further, this result does little to discourage the State, which has the power to 

structure a plea agreement how it wishes, from bargaining for plea agreements that 

impose sentences not authorized by law.5

 Interestingly, had Coles been convicted after 

 5 It should also be noted that the sentencing court has some culpability here in that it 

accepted Coles’ plea and imposed the agreed-upon sentence, which as imposed was 

(Footnote continued on next page.)
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trial and given an illegal sentence, his sentence would be correctable under Rule 27.03 at 

any time without regard to his conviction. But, under today’s ruling, because Coles 

entered into a plea agreement, the same illegal sentence cannot be challenged under 

Rule 27.03 and cannot and will not be corrected. Such a result, and the reasoning behind 

that result, is not supported by logic, the text of the rule, our precedent, or, as noted 

above, our obligation to do justice.

For these reasons, I respectfully dissent.

 

(Footnote continued from previous page.)

clearly unauthorized by law. There needs to be incentive for not only the State but also 

trial courts to take care that sentences unauthorized by law are not imposed on defendants 

who enter into plea agreements. That the defendant agrees to and benefits from such a 

sentence is of no moment.
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D I S S E N T

STRAS, Justice (dissenting).

Because the parties do not present a separation-of-powers question and the plain 

language of Minn. R. Crim. P. 27.03, subd. 9, fully resolves the legal issue in this case, I 

respectfully dissent.