This opinion will be unpublished and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

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. 27-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 Swanson, 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. 
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U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

In 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 departure was the parties’ agreement. We affirm.

FACTS

A grand jury indicted appellant Terelle Eugene Shaw on one count of first-degree 

premeditated murder and one count of second-degree intentional murder. In exchange 

for the state’s dismissal 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 sentenced 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 according to the guidelines and that he received ineffective assistance 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. The 
3

district court characterized appellant’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 Orozco 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 district 

court.

Appellant insists that his request for relief must be addressed pursuant to rule 

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

The 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 plea of guilty, 

negotiated upward departures could be validly imposed 

pursuant to a plea agreement. State v. Givens, 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 

memorandum 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 for an upward departure. 

[Misquadace, 644 N.W.2d at 71-72.] However, the Court’s 

ruling does not apply retro-actively. Hutchinson v. State, 679 

N.W.2d 160, 164 (Minn. 2004) (Misquadace is not 

retroactive). Therefore, Givens was controlling law at the 

time of appellant’s sentencing and the departure is 

appropriate 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 party does so by 

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, this 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 to retain the benefit of a 

reduced charge and avoid the burden of the agreed-upon sentence.” Orozco, 841 N.W.2d 

at 633. At present, Orozco controls the resolution of whether the district court properly 

construed appellant’s motion as a petition for postconviction 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 of 
5

appeals” and must apply precedent to factually similar 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 Orozco 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 twoyear 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, conclude that, although 

Amundson’s motion was brought under circumstances 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 the finality of a conviction.

Orozco, 841 N.W.2d at 636-37. Under Orozco, 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 is 
6

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 motion, 

therefore, is time-barred.

Appellant’s motion 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). 

Appellant 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 the supreme court, and because 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 sentencing 

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 plea
7

agreement, standing alone, is not a sufficient basis to support a sentencing departure. 

Misquadace, 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 relief 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, 487-88 (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, the general rule under 

Teague is that new rules do not apply 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. (quotation and citations omitted). 
8

Appellant argues that the watershed exception applies to this case. The watershed 

exception is limited “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 of 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 the conviction was based on a confession 

extorted from the 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 appellant’s motion 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.