Opinion
A22-1498
04-18-2023
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 Cochran, Presiding Judge; Worke, Judge; and Smith, Tracy M., Judge.
ORDER OPINION
Renee L. Worke, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In December 2012, a jury found appellant Andrew Wayne Clarke guilty of one count of second-degree sale of a controlled substance and one count of third-degree possession of a controlled substance. Following a Blakely trial, a jury made findings sufficient to designate Clarke a career offender under Minn. Stat. § 609.1095, subd. 4 (2012). Specifically, the jury found that: (1) Clarke had five or more prior felony convictions; (2) the present offenses were felonies; and (3) the present offenses were committed as part of a pattern of Clarke's criminal conduct.
2. At sentencing, respondent State of Minnesota requested an upward durational departure of 258 months based on the jury's career-offender findings. The district court granted the departure and imposed a 258-month sentence for the second- degree sale conviction. Clarke appealed, arguing among other things that "the district court abused its discretion by sentencing him based on facts not found by the jury and by failing to sufficiently explain the reasons for the departure." State v. Clarke, No. A13-0801, 2014 WL 1875779, at *3 (Minn.App. May 12, 2014), rev. denied (Minn. Aug. 5, 2014) (Clarke I). This court rejected the argument and affirmed, stating that the district court's "basis for" the departure "was . . . the jury's findings under the career-offender statute." Id., at *4.
3. In 2018, Clarke moved to correct his sentence under Minn. R. Crim. P. 27.03. The district court denied relief. Clarke appealed and this court affirmed. Clarke v. State, No. A19-0053, 2019 WL 3887389, at *2 (Minn.App. Aug. 19, 2019) (Clarke II).
4. In 2020, Clarke again moved to correct his sentence, arguing that the district court imposed the departure based on its own findings that Clarke was "a career drug dealer" and "a risk to public safety" rather than the jury's career-offender findings. The district court denied relief, and Clarke appealed. This court affirmed, stating that regardless of whether Clarke brought his claim under rule 27 or in a postconviction petition, the claim had already been decided and was "barred by law of the case." Clarke v. State, No. A21-0853, 2022 WL 1074096, at *3 (Minn.App. Mar. 30, 2022) (order op.) (Clarke III). This court also stated that if it considered Clarke's motion to be a postconviction petition, his claim would be barred under State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). Id.
5. In September 2022, Clarke moved the district court to correct his sentence a fourth time. The district court denied the motion.
6. In October 2022, Clarke moved to correct his sentence for a fifth time. The district court denied the motion and Clarke filed this appeal.
7. We review a denial of a motion to correct a sentence under rule 27 for an abuse of discretion. Townsend v. State, 834 N.W.2d 736, 738 (Minn. 2013). We also review a denial of postconviction relief for an abuse of discretion. Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017).
8. Clarke argues that "[t]he district court used reasons for the departure that w[ere] not found by the jury." But Clarke made the same argument in previous appeals, which this court rejected on the merits in Clarke I. Therefore, as we stated in Clarke III, Clarke's rule 27 argument is barred by the law of the case, and if we considered his motion to be a postconviction petition, Clarke's argument is barred by Knaffla. See State v. Lynch, 749 N.W.2d 318, 321 (Minn. 2008) (holding claim barred by law of the case and Knaffla because this court had already "considered, addressed, and made a holding" regarding claim on direct appeal). The district court did not abuse its discretion by denying Clarke relief.
IT IS HEREBY ORDERED:
1. The district court's order 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.