This opinion will be unpublished and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

A15-0349

Marcus Allen Brown, petitioner, 

Appellant, 

vs. 

State of Minnesota, 

Respondent.

Filed January 4, 2016

Affirmed

Peterson, Judge

Hennepin County District Court

File No. 27-CR-05-009930

Marcus A. Brown, Bayport, Minnesota (pro se appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Reyes, 

Judge. 

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In his third postconviction petition, appellant seeks relief under Minn. R. Crim. P. 

27.03, subd. 9, arguing that his 2005 sentence for second-degree murder must be corrected 
2

because it was unauthorized. Because appellant’s motion is a postconviction petition and 

it is time-barred under Minn. Stat. § 590.01, subd. 4 (2014), we affirm.

FACTS

Appellant Marcus Allen Brown was indicted for one count of first-degree murder 

and two counts of attempted first-degree murder arising out of an incident that occurred on 

August 19, 2004. On September 12, 2005, the scheduled trial date, Brown pleaded guilty 

to an amended charge of second-degree intentional murder. At the same time, Brown 

waived his right to a jury trial on sentencing factors and stipulated that aggravating 

circumstances existed that supported an upward departure to 432 months from the 

presumptive sentence of 306 months. See Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 

2531 (2004). In the stipulation, Brown agreed that there were three aggravating factors: 

(1) the offense involved multiple victims; (2) the offense was committed under 

circumstances of greater-than-normal danger because many people were in the area; and 

(3) the offense was committed with particular cruelty, because the victim was shot while 

incapacitated in the presence of his father and Brown failed to seek medical treatment. The 

state agreed not to proceed on another potential murder charge from 2000, unless new 

evidence of that crime was discovered. 

In October 2005, Brown appeared for sentencing but asked to withdraw his guilty 

plea. The district court continued the sentencing hearing to December 12, 2005, when 

Brown indicated that he wanted to proceed with sentencing. The district court sentenced 

Brown to 432 months, based on the stipulated aggravating factors. 
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Brown filed a direct appeal from his judgment of conviction, but voluntarily 

dismissed the appeal in June 2006. In October 2007, Brown filed a motion to correct his 

sentence with the district court, alleging Blakely violations and challenging the aggravating 

factors. The district court treated the motion as a postconviction petition and denied relief, 

concluding that Brown had waived his right to a Blakely hearing. Brown appealed to this 

court, which affirmed the district court. Brown v. State, No. A08-0709, 2009 WL 818424 

(Minn. App. Mar. 31, 2009), review denied (Minn. June 16, 2009) (Brown I). The supreme 

court denied further review.

In September 2010, Brown filed a second postconviction petition, asking to 

withdraw his plea based on (1) multiple Brady violations; (2) suggestive photo 

identification procedures; and (3) the state’s failure to disclose that a key witness could not 

identify Brown as the assailant. After an evidentiary hearing, the district court denied 

Brown’s second postconviction petition, concluding that his newly discovered evidence 

was unreliable and he had failed to sustain his burden of proof. Brown appealed the district 

court’s decision to this court, which affirmed the district court’s denial of postconviction 

relief. Brown v. State, No. A11-1503 (Minn. App. Apr. 16, 2012), review denied (Minn. 

June 27, 2012) (Brown II). The supreme court denied further review. 

In September 2014, Brown filed a motion to correct his sentence, alleging Blakely

violations and arguing that an upward departure cannot be based solely on a plea 

agreement. The district court denied Brown’s motion, concluding that the motion was a 

postconviction petition because he sought to withdraw his plea, and that it was time-barred 
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under Minn. Stat. § 590.01 (2014). The district court also concluded that his claims were 

without merit. This appeal followed.

D E C I S I O N

A person convicted of a crime may challenge his conviction or sentence by 

postconviction petition under Minn. Stat. § 590.01, subd. 1, or his sentence by motion to 

correct a sentence not authorized by law under Minn. R. Crim. P. 27.03, subd. 9. These 

two remedies coexist but are subject to different conditions. Vazquez v. State, 822 N.W.2d 

313, 317 (Minn. App. 2012). 

A postconviction petition must be filed within two years after the later of the entry 

of judgment of conviction or sentence if there is no direct appeal, or disposition of a 

petitioner’s direct appeal, subject to certain exceptions. Minn. Stat. § 590.01, subd. 4. In 

addition, claims that were raised or could have been raised in a prior postconviction petition 

will not be considered in a subsequent petition for postconviction relief. Lussier v. State, 

853 N.W.2d 149, 152 (Minn. 2014); see Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003) 

(extending rule of State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) to 

subsequent postconviction petitions).

A motion to correct an unauthorized sentence under Minn. R. Crim. P. 27.03, subd. 

9, is not subject to the same time bar or a limitation against filing a second or subsequent 

motion, and may be raised at any time. Washington v. State, 845 N.W.2d 205, 211 (Minn. 

App. 2014). But rule 27.03, 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 
5

other applicable law.” Id. at 213 (quotation omitted). “[A]n offender may not avoid the 

requirements of the postconviction act by simply labeling a challenge as a motion to correct 

a sentence under rule 27.03, subdivision 9.” Id. at 212. A petition or motion that asserts a 

challenge to the conviction, seeks to withdraw a guilty plea because the facts at sentencing 

were inaccurate, or is based on the district court’s selection of one of two or more 

authorized sentences, may not be made in a rule 27.03 motion. Id. at 213. 

The Minnesota Supreme Court recently stated that when a defendant challenges a 

sentence that was imposed as part of a plea agreement, a motion for relief under rule 27.03, 

subdivision 9, “impacts more than simply the sentence.” State v. Coles, 862 N.W.2d 477, 

481 (Minn. 2015). In this situation, a defendant who succeeds in reducing a sentence may 

retain the benefits, while escaping the consequences, of a plea negotiation. Id. Thus, the 

supreme court held, a challenge to a sentence negotiated as part of a plea agreement should 

be treated as a petition for postconviction relief under section 590.01, not as a motion to 

correct a sentence under rule 27.03. Id. at 482. 

Brown’s sentence was negotiated as part of a plea agreement. He pleaded guilty to 

an amended charge of second-degree intentional murder, a reduction from first-degree 

murder; the state agreed to forego charges on a second matter, unless new evidence was 

discovered; he waived his right to a Blakely hearing on sentencing and stipulated to three 

aggravating factors; and the parties agreed to an upward departure from the presumptive 

sentence. Brown’s challenge impacts more than his sentence; the plea negotiation resulted 

in real benefits to him. The district court did not err by characterizing Brown’s current 
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petition as a postconviction petition under section 590.01, rather than a challenge to an 

unauthorized sentence under rule 27.03.

Because Brown’s conviction became final in 2006 when he voluntarily dismissed 

his direct appeal, his postconviction petition is time-barred under Minn. Stat. § 590.01, 

subd. 4. Also, although Brown now argues that the aggravating factors are insufficient 

under the sentencing guidelines to support an upward durational departure, this issue was 

known at the time of sentencing, could have been raised in his prior postconviction 

petitions, and is now barred. See Lussier, 853 N.W.2d at 152.

We need not address the merits of Brown’s postconviction petition because the 

petition is time-barred, but we note that Brown waived his right to a Blakely hearing 

following the procedures set forth in Minn. R. Crim. P. 26.01, subd. 1(2). See State v. 

Thompson, 720 N.W.2d 820, 827 (Minn. 2006) (holding that defendant may waive his right 

to a sentencing hearing). This court previously reviewed Brown’s Blakely waiver and 

concluded that it was valid. Brown I, 2009 WL 818424, at *4. And at least one of the three 

aggravating factors to which Brown stipulated is a permissible basis for an upward 

departure from the sentencing guidelines. The Minnesota Supreme Court has “repeatedly 

held that the risk to bystanders is an appropriate factor for courts to consider when 

determining the seriousness of a crime.” State v. Edwards, 774 N.W.2d 596, 607 (Minn. 

2009) (affirming upward departure when the assault “generated significant risk of bodily 

harm to a large number of people”). Brown’s challenge to his sentence is without merit.

Affirmed.