Abdirisak Dahir Jama v. State of Minnesota

Minnesota Court of Appeals November 3, 2014

Opinion

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0476

Abdirisak Dahir Jama, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 3, 2014
Affirmed
Peterson, Judge

Hennepin County District Court
File No. 27-CR-07-128396

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota; and

I. Chris Ritts, Dunlap & Ritts, PA, Minneapolis, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Judge.

UNPUBLISHED OPINION

PETERSON, Judge

In this appeal from a postconviction court’s determination that appellant’s request

to modify his 2008 sentence is barred, appellant argues that modification is in the
interests of justice because his 219-month prison sentence is excessive and unfairly

exaggerates the criminality of his conduct. We affirm.

FACTS

In December 2007, appellant Abdirisak Dahir Jama and four others barged into

A.A.’s apartment while A.A. was present with four friends. Appellant held the five

victims at gunpoint, hit one of the victims on the head with the gun, threatened to kill

them, and demanded their money and cell phones. The intruders took the victims’

wallets, money, and cell phones.

Appellant was charged with five counts of first-degree aggravated robbery and one

count of possession of a firearm by a prohibited person, and a jury found him guilty of all

charges. In May 2008, appellant was sentenced to 105 months for one count of

aggravated robbery, 57 months for each of the remaining four counts of aggravated

robbery, and 60 months for unlawful firearm possession. The district court ordered three

of the sentences for aggravated robbery to run consecutively and ordered the remaining

sentences to run concurrently, which resulted in a 219-month sentence. Appellant filed a

direct appeal in which he raised discovery issues, challenged an evidentiary ruling, and

argued that his trial counsel was ineffective. See State v. Jama, No. A08-1337 (Minn.

App. Aug. 11, 2009), review denied (Minn. Oct. 20, 2009). This court affirmed the

convictions, and the supreme court denied further review.

In August 2013, appellant filed a petition for postconviction relief arguing that,

because his offenses were committed as part of a single behavioral incident, his

consecutive sentences were prohibited under

Minn. Stat. § 609.035

 (2012). He asserted


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that his 219-month sentence is disproportionate to the offenses committed and unfairly

exaggerates the criminality of his conduct, and he asked that the robbery sentences be

modified to run concurrently. The district court denied the request for postconviction

relief, holding that appellant’s challenge to his sentence is barred because it could have

been raised on direct appeal and because the postconviction petition was not filed within

two years of appellate disposition of appellant’s direct appeal.

                                         DECISION

       An appellate court reviews a summary denial of postconviction relief for an abuse

of discretion. Powers v. State,

695 N.W.2d 371, 374

 (Minn. 2005). “A postconviction

court abuses its discretion when its decision is based on an erroneous view of the law or

is against logic and the facts in the record.” State v. Nicks,

831 N.W.2d 493, 503

 (Minn.

2013) (quotation omitted).

       “No petition for postconviction relief may be filed more than two years after . . .

an appellate court’s disposition of petitioner’s direct appeal.”

Minn. Stat. § 590.01

, subd.

4(a) (2012). For the purpose of applying this two-year limit, a conviction becomes final

90 days after a decision by the Minnesota Supreme Court on a direct appeal if a petition

for certiorari is not filed with the United States Supreme Court. Berkovitz v. State,

826 N.W.2d 203, 207

 (Minn. 2013). Appellant did not challenge his sentence on direct

appeal. His postconviction petition was filed more than two years after the supreme court

denied review of his direct appeal and expiration of the time to file a petition for

certiorari. Appellant acknowledges these facts, but he argues that postconviction relief is

warranted in the interests of justice.


                                             3
       The two-year limit in section 590.01, subdivision 4(a), does not bar consideration

of a postconviction claim if “the petitioner establishes to the satisfaction of the court that

the petition is not frivolous and is in the interests of justice.”

Minn. Stat. § 590.01

, subd.

4(b)(5) (2012).      The interests-of-justice exception applies only in “exceptional

situations.” Gassler v. State,

787 N.W.2d 575, 586

 (Minn. 2010). The “interests of

justice” referred to in section 590.01, subdivision 4(b)(5), “relate to the reason the

[postconviction] petition was filed after the 2-year time limit in subdivision 4(a), not the

substantive claims in the petition.” Sanchez v. State,

816 N.W.2d 550, 557

 (Minn. 2012)

(emphasis in original).

              When the only injustice claimed is identical to the substance
              of the petition, and the substance of the petition is based on
              something that happened before or at the time a conviction
              became final, the injustice simply cannot have caused the
              petitioner to miss the 2-year time limit in subdivision 4(a),
              and therefore is not the type of injustice contemplated by the
              interests-of-justice exception in subdivision 4(b)(5).

Id.


       Appellant does not provide any excuse for failing to raise his challenge to his

sentence on direct appeal, nor does his challenge rely on any facts or law that would not

have been known at the time of the direct appeal.              He contends only that his

postconviction claim should be reviewed because it has merit.             Appellant has not

established that the interests of justice require review of his postconviction petition.

       Appellant also argues that his petition is not time barred because a court may

correct a sentence not authorized by law at any time. See Minn. R. Crim. P. 27.03, subd.

9. This court has stated that the two-year limit on postconviction relief does not apply to


                                              4
a motion to correct a sentence under rule 27.03, subdivision 9. See Washington v. State,

845 N.W.2d 205, 211

 (Minn. App. 2014). But rule 27.03, subdivision 9, may be used

only to assert that a sentence is “not authorized by law” in that “the sentence is contrary

to an applicable statute or other applicable law.”

Id. at 214

.

       Appellant’s postconviction argument is not that his sentence is contrary to an

applicable statute or law. Appellant concedes that, when crimes are committed as part of

a single behavioral incident, consecutive sentencing is permissible if the crimes affect

multiple victims. See State v. Edwards,

774 N.W.2d 596, 605

 (Minn. 2009) (stating that

“defendants may be sentenced separately for multiple convictions arising from the same

behavioral incident if those convictions relate to multiple victims”).         Appellant’s

postconviction argument is that the district court abused its discretion by imposing a

prison sentence that is excessive and unfairly exaggerates the criminality of his conduct.

Because appellant does not challenge the legality of his sentence and his postconviction

petition was filed more than two years after disposition of his direct appeal,

postconviction relief is barred. In light of this holding, we need not analyze whether

postconviction relief is also barred by the rule announced in State v. Knaffla,

309 Minn. 246

243 N.W.2d 737

Reference

Status: Unpublished