This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). STATE OF MINNESOTA IN COURT OF APPEALS A14
- 0745 Terelle Eugene Shaw, petitioner,

Appellant,

vs. State of Minnesota, Respondent. Filed December 29 , 2014 Affirmed Huspeni , Judge * Hennepin County District Court File No. 2 7

- CR

- 98

- 126941 Cathryn Middlebrook, Chief Appellate Public Defender, Stephanie A. Karri, Assistant Public Defender, St. Paul, Minnesota; and Bradford W. Colbert, St. Paul, Minnesota (for appellant) Lori Sw anson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Lee W. Barry III , Assistant County Attorney, Minneapolis, Minnesota (for respondent) Considered and decided by Rodenberg , Presiding Judge; Kirk , Judge; and Huspeni , Judge

.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.2 U N P U B L I S H E D O P I N I O N HUSPENI , Judge
I n this appeal challenging a sentencing departure imposed under a plea agreement, appellant argues that the departure is unlawful because the only reason the district court gave for the depa rture was the parties’ agreement . We affirm. FACT S A grand jury indicted appellant Terelle Eugene Shaw on one count of first

- degree premeditated murder and one count of second

- degree intentional murder. I n exchange for the state’s dismi ssal of the first

- degree charge and agreement that appellant’s brother and mother, who had been charged as accomplices, would receive probation, appellant pleaded guilty to second

- degree intentional murder

. In June 1999 , as provided in the plea agreement, appellant was sent enced to 396 months in prison, an upward durational departure from the presumptive sentence.
In April 2002, the district court summarily denied appellant’s motion for postconviction relief in which he argued that he did not validly waive his right to be sentenced acc ording to the guidelines and that he received ineffective a ssistance of counsel. This court dismissed appellant’s appeal from that denial as untimely and denied his motion to reinstate it. In 2013, appellant filed a motion to correct his sentence under Minn. R. Crim. P. 27.03, subd. 9. In a supplemental memorandum, he argued that his sentence was illegal under State v. Misquadace , 644 N.W.2d 65 (Minn. 2002), which held that a plea agreement alone is not a sufficient basis to support an upward durational departure. The3

district court characterized ap pellant’s motion as a postconvction petition and summarily denied relief. This appeal followed. D E C I S I O N
I. We note initially the impact in this appeal of Minn. R. Crim. P. 27.03, subd. 9 , Minn. Stat. § 590.01 (2012) , and O rozco v. State , 841 N.W. 2d 632 (Minn. App. 2014 ) , review granted and stayed (Minn. Mar. 18, 2014) (pending disposition in State v. Coles , No. Al3

- 0789). We include all three in our analysis and affirm the decision of the distr ict
court. Appellant insists that his request for relief must be addresse d pursuant to r ule 27.03, and that respondent raised no objection to that reliance and should not be permitted to now address the issue under Minn. Stat. § 590.01. We disagree. 1
T he district court in the order now being appealed addressed the rule, the statute, and Orozco in dismissing appellant’s “motion for post

- conviction relief.” The court recognized that under Orozco , a rule 27.03 motion is properly treated as a postconviction petition when the relief requested affects the finality of a conviction. The court then stated in part: At the time [appellant] entered his p lea of guilty,

negotiated upward departures could be validly imposed pursuant t o a plea agreement

. State v. Give ns , 544 N.W.2d

1 See Carlton v. State , 816 N.W.2d 590, 601 (Minn. 2012) (concluding that time limit in Minn. Stat. § 590.01, subd. 4, is not jurisdictional and can be waived by state). Although the state did not address the two

- year time limit in responding to appellant’s supplemental memorandum, the state preserved the issue by raising it in its initial memoran dum opposing appellant’s motion in the district court.4 774, 777 (Minn. 1996). The Minnesota Supreme Court overruled Givens in 2002, holding that plea agreements may no longer serve as the basis f or an upward departure

. [ Misquadace , 644 N.W.2d at 71

- 72.] However, the Court’s ruling does not apply retro

- a ctively

. Hutchinson v. State , 679 N.W.2d 160, 164 (Minn. 2004 ) ( Misquadace is not retroactive). Therefore, Givens w as controlling law at the time of appellant’s sentencing and the departure i s appropria te based upon the plea agreement alone. Minn. R. Crim P. 27.03, subd. 9, permits a court to “at any time correct a sentence not authorized by law.” The procedural rules and limitations of the postconviction act do not apply to a challenge properly brought under this rule

. Washington v. State , 845 N.W.2d 205, 212 (Minn. App. 2014). “[R]ule 27 , subdivision 9, authorizes relief only if a party challenges a sentence, as opposed to a conviction, and only if a p arty does so b y asserting that a sentence is ‘unauthorized by law’ in the sense that the sentence is contrary to an applicable statute or other applicable law. ” Id. at 213. As recognized by the district court, t his court has held that “[a] motion to correct a sentence under Minn. R. Crim. P. 27.03, subd. 9, is properly construed as a petition for postconviction relief when the sentence was imposed pursuant to a plea agreement and granting the requested correction would allow the defendant t o retain the benefit of a reduced charge and avoid the burden of the agreed

- upon sentence. ” O rozco , 841 N.W.2d
at 633. At present , O rozco controls the resolution of whether the district court properly
construed appellant’s motion as a petition for postco nviction relief. See State v. M.L.A. , 785 N.W.2d 763, 767 (Minn. App. 2010) (stating that court of appeals and district court are “bound by supreme court precedent and the published opinions of the court of5

appeals” and must apply precedent to factually s imilar cases) , review denied (Minn. Sept. 21, 2010)

. Appellant relies on State v. Amundson , 828 N.W.2d 747, 751 (Minn. App. 2013), to argue that his challenge to his sentence is properly asserted under Minn. R. Crim. P. 27.03, subd. 9. This court in Oroz co distinguished Amundson as follows , however :

[T] his court did not consider whether the fact that Amundson’ s sentence was agreed to in a plea agreement affected the applicability of Vazquez [, which held that two

year time limit does not apply to motions under rule 27.03, subdivision 9,] because the state had waived its right to claim that the motion was time

- barred by conceding that Vazquez applied and that the motion was properly filed under rule 27.03 , subdivision 9. We, therefore, c onclude that, altho ugh Amundson’ s motion was brought under cir cumstances similar to appellant’ s motion, Amundson did not determine that the two

- year limitations period for postconviction petitions does not apply to a rule 27.03 motion that, like appellant’ s motion, affects t he finality of a conviction. Orozco , 841 N.W.2d at 636

- 37

. Under O rozco , the district court properly construed appellant’s motion as a petition for postconviction relief. Subject to exceptions not applicable to this case, Minn . Stat. § 590.01, subd. 4 , requires that a petition for postconviction relief must be filed no later than two years after the disposition of a direct appeal or the date when the conviction becomes final if no appeal is filed. This two

- year time limit became effective August 1, 2005 , and allowed defendants whose convictions became final before that date until July 31, 2007, to seek postconviction relief. 2005 Minn. Laws ch. 136, art. 14, §§ 12

- 13 , at 1097

- 98

. Appellant’s conviction became final in 1999. See State v. Hughes , 758 N .W.2d 577, 580 (Minn. 2008) (stating that, “if a defendant does not file a direct appeal, his conviction is6

final for retroactivity purposes when the time to file a direct appeal has expired.”). Appellant did not file the motion currently on appeal until 2013. Appellant’s moti on, therefore, is time

- barred

. Appellant’s mo tion is also procedurally barred. A postconviction petition is procedurally barred, following direct appeal, for any claim “known but not raised,” unless the claim should be heard in the interests of justice or because a novel legal issue is presented. State v. Knaffla , 309 Minn. 246, 252

– 53, 243 N.W.2d 737, 741 (1976)

. The Knaffla rule applies to claims that were raised or could have been raised in a previous postconviction proceeding. Wayne v. State , 601 N.W.2d 440, 441 (Minn. 1999).
A ppellant does not assert that either Knaffla exception applies, and, although Misquadace was not decided until after the district court denied appellant’ s 2002 petition, Misquadace was pending before the supreme court when appellant filed the 2002 petition, so appellant could have raised the issue at that time

. II.
Because Orozco is pending before t he supreme court, and b ecause the procedural rules and time limitations of the postconviction act do not apply to a challenge properly brought under Minn. R. Crim. P. 27.03, subd. 9, we consider the merits of appellant’s
claim. Under the law in effect when appellant was sentenced, an upward sentenc ing departure could be based solely on a plea agreement. Givens , 544 N.W.2d at 777 (holding that a defendant may waive the right to be sentenced under the guidelines). After appellant was sentenced, the supreme court overruled Givens and held that a plea7

agreement, standing alone, is not a sufficient basis to support a sentencing departure.
M isquadace , 644 N.W.2d at 71

- 72. In Hutchinson , the supreme court held that Misquadace did not apply to a conviction that had become final before Misquadace was decided. 679 N.W.2d at 164. Although appellant’s conviction became final in 1999 and Misquadace was not decided until 2002, appellant argues that it can be applied to his sentence because the time to appeal the 2002 order denying postconviction reli ef had not expired when Misquadace was decided. Citing Campos v. State , appellant argues that new rules can apply retroactively in collateral proceedings. 816 N.W.2d 480, 48 7

- 88 (Minn. 2012). Campos applied the Teague analysis to determine whether a new federal rule of criminal procedure applied retroactively. Id. at 488 (citing Teague v. Lane , 489 U.S. 288, 109 S. Ct. 1060 (1989)). Even if the Teague analysis applies to a change in state law , t he general rule under Teague is that new rules do not appl y to convictions that have become final

. Sawyer v. Smith, 497 U.S. 227, 241

- 42, 110 S. Ct. 2822, 2831 (1990)

. The two exceptions are (1) new rules that “place an entire category of primary conduct beyond the reach of the criminal law, ” or “ new rules that prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense”; and (2) “new watershed rules of
criminal procedure that are necessary to the fundamental fairness of the criminal proceeding.” Id. ( quotatio n and citations omitted).8

Appellant argues that the watershed exception applies to this case. The watershed exception is limit ed “to those new procedures without which the likelihood of an accurate conviction is seriously diminished. ” Teague , 489 U.S. at 313, 109 S. Ct. at 1077.

Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge. We are also o f the view that such rules are best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus

— that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that th e conviction was based on a confession extorted from t he defendant by brutal methods. Id. (quotation omitted). The change in law prohibiting a sentencing departure to be based solely on a plea agreement is not such a procedure. Regardless of whether app ellant’s mo tion is properly construed as a postconviction petition or a motion to correct a sentence under Minn. R. Crim. P. 27.03, subd. 9, the district court properly denied relief. Affirmed.