Opinion
A21-0853
03-30-2022
Andrew Wayne Clarke, petitioner, Appellant, v. State of Minnesota, Respondent.
St. Louis County District Court File No. 69DU-CR-12-3177
Considered and decided by Connolly, Presiding Judge; Reilly, Judge; and Smith, Tracy M., Judge.
ORDER OPINION
DENISE REILLY JUDGE.
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Andrew Wayne Clarke was arrested in 2012 for two outstanding warrants. The police found baggies of heroin on his person. Respondent State of Minnesota charged Clarke with one count of second-degree sale of a controlled substance and one count of second-degree possession of a controlled substance. The state later amended its charges to one count of second-degree sale and one count of third-degree possession.
2. The district court conducted a bifurcated jury trial in December 2012. The jury found Clarke guilty on both counts. Next, the jury considered evidence during the sentencing phase of the trial. Daniel Bartlett of Arrowhead Regional Corrections, Clarke's probation officer for about two months, testified about Clarke's criminal history.
3. Mr. Bartlett testified about Clarke's thirteen prior felony convictions: (I)passing counterfeit currency; (2) aggravated forgery; (3) burglary; (4) second-degree burglary; (5) offering a forged check; (6) first-degree possession of crack cocaine; (7) fifth-degree possession of a controlled substance; (8) fourth-degree assault on a corrections employee; (9) fifth-degree possession of a controlled substance; (10) felony identity theft; (11) fifth-degree possession of a controlled substance; (12) felony theft; and (13) felony theft.
4. The district court directed the jury to answer questions on a special-verdict form: (1) "Does Mr. Clarke have five or more prior felony convictions, not including the present offense?"; (2) "Is the present offense a felony?"; and (3) "Were the present offenses committed as part of a pattern of criminal conduct?" The district court instructed the jury that "'a pattern of criminal conduct' refers to acts related to one another through a common scheme or plan or shared criminal purpose. The pattern may be shown by proof of criminal conduct similar, but not identical in motive, purpose, results, participants, victims, or other shared characteristics." The district court informed jurors that the state must prove a pattern of criminal conduct beyond a reasonable doubt. The jury answered yes to all three questions, finding that Clarke was a career offender.
5. In February 2013, the district court held a sentencing hearing. The presumptive sentence for Clarke's second-degree-controlled-substance conviction was 108 months with a range between 92 months and 129 months. The state argued that the district court should sentence Clarke to 258 months, an upward departure based on the jury's finding that Clarke was a career offender. Clarke requested a sentence within the presumptive range. The district court sentenced Clarke to 258 months in prison, double the top of the presumptive sentencing range of 129 months, for the second-degree-controlled-substance conviction. In explaining its decision, the district court stated: "It seems to me, that what's fair here would be a double upward departure . . . . In part, that's based on if our guidelines say that a person in normal circumstances would get 129 months, doubling that for someone who is going to make a career out of it, out of dealing drugs . . . ."
6. In 2014, Clarke appealed his conviction to this court, arguing that: (1) sufficient evidence did not support a pattern of criminal conduct; (2) the district court "fail[ed] to sufficiently explain the reasons for the departure"; and (3) the prosecution improperly argued that the current convictions were motivated by Clarke's drug habit. State v. Clarke, No. A13-0801, 2014 WL 1875779, at *1, *3 (Minn.App. May 12, 2014), rev. denied (Minn. Aug. 5, 2014) (Clarke I). This court affirmed Clarke's convictions, determining that the evidence was sufficient to support the jury's finding of a pattern of criminal conduct and the district court did not abuse its discretion in sentencing Clarke. Id. at *2-4.
7. In October 2018, Clarke filed a motion with the district court asking it to correct his sentence pursuant to Minnesota Rule of Criminal Procedure 27.03, subdivision 9. The district court dismissed Clarke's motion because Clarke had raised the same issues in his direct appeal. The district court also analyzed Clarke's motion as a petition for postconviction relief under Minnesota Statutes section 590.01 (2018) and found that it was Knaffla-barred and untimely. Clarke appealed and this court affirmed the district court's decision. Clarke v. State, No. A19-0053, 2019 WL 3887389, at *2 (Minn.App. Aug. 19, 2019) (Clarke II).
8. In November 2020, Clarke filed another motion to correct his sentence. The district court found that whether Clarke should be sentenced as a career offender had been decided in the 2014 and 2019 decisions and denied the motion. Clarke again appeals the denial of his motion for a correction of sentence.
9. This time, Clarke argues that the district court erred in denying his motion for a correction of sentence under Minnesota Rule of Criminal Procedure 27.03 because Clarke unlawfully received an upward departure based on the district court judge's determination that Clarke was a "career drug dealer" and not the jury finding that Clarke was a "career offender." The district court found that the issue had been decided because Clarke's argument is the same as it was in his direct appeal from his sentence in 2014: Clarke does not believe he should be sentenced as a career offender.
10. We agree with the district court. In Clarke's direct appeal from his sentence in 2013-2014, Clarke argued that the district court abused its discretion by sentencing him on facts not found by the jury and by failing to sufficiently explain the reasons for the departure. Clarke I, 2014 WL 1875779, at *3. This court determined that "the district court properly sentenced Clarke within its broad discretion" and that the jury's findings under the career-offender statute supported the upward departure. Id. at *3-4. In his second appeal in 2018-2019, Clarke brought his motion for a corrected sentence as a rule 27 motion. Clarke II, 2019 WL 3887389, at *1. The district court treated his motion as a postconviction petition under Minn. Stat. § 590.01 and this court affirmed, determining that because Clarke was challenging the jury's findings, the district court did not err in treating the motion as a petition for postconviction relief. Id. at *2. Further, this court determined that, even if Clarke's challenge to his sentence "was properly raised as a rule 27 motion, he does not prevail" because he meets the requisite number of felony convictions to support a career offender finding. Id. at *2 n.1.
11. Clarke's arguments in this third appeal are the same as his arguments in his prior two appeals that he was not properly sentenced. Whether the petition is brought under rule 27 or Minn. Stat. § 590.01 is immaterial. The claims, because they have already been decided, are barred by law of the case. State v. Lynch, 749 N.W.2d 318, 321 (Minn. 2008) (concluding claim barred by the law of the case and Knaffla because the court had already "considered, addressed, and made a holding" regarding the claim in the direct appeal). The district court judge's statement that Clarke has made a career out of dealing drugs was already determined by this court to be a non-reversible error. Clarke I, 2014 WL 1875779, at *4. Because this issue was expressly considered on direct appeal, it is procedurally barred from reconsideration if considered a postconviction petition. State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). If found to be a rule 27 motion, this court has already determined that he meets the requisite number of felonies to qualify for an upward departure because the jury found that he is a career offender. Clarke II, 2019 WL 3887389, at *2 n.1.
12. In sum, the issue raised by Clarke in this appeal has already been decided. Thus, the district court did not err in denying Clarke's motion for a correction or reduction of his sentence.
IT IS HEREBY ORDERED:
1. The district court's judgment is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.