¶1(dissenting).
¶2I respectfully dissent. In my view, with certain exceptions, a waiver of appellate rights following the perfection of an appeal from a judgment of conviction, review of the transcript and records by appellate counsel and the filing of an appellate brief is valid so long as procedural protections are in place to ensure that the waiver is knowing, intelligent, and voluntary. In this case, those procedural protections were absent. Consequently, I would affirm the determination that post-trial, post-sentence appeal rights may be waived, but I would remand the matter to the district court for a more comprehensive inquiry as to the validity of Spann’s waiver of those rights.
¶3In the context of plea bargaining, criminal defendants may waive fundamental constitutional rights, as long as they do so voluntarily and understandingly, with knowledge of the general nature and consequences of the waiver. See Adams v. United States, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (discussing waiver of right to jury trial); Johnson v. Zerbst, 304 U.S. 458, 464-67, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (discussing waiver of right to counsel). For four decades, plea bargaining has been the predominate method of obtaining criminal convictions in the United States. Corinna Barrett Lain, Accuracy Where it Matters: Brady v. Maryland in the Plea Bargaining Context, 80 Wash. U. L.Q. 1 (2001) (stating that the plea bargaining rate in criminal cases has been around 90% since the 1960s). While most rights may be waived, there are some rights that are not waivable. See, e.g., United States v. Mezzanatto, 513 U.S. 196, 204, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995) (suggesting that while most protections are presumptively waivable, there may be some, such as the right to conflict-free counsel, that cannot be waived); United States v. Rosa-Ortiz, 348 F.3d 33, 36 (1st Cir.2003) (holding that guilty plea could not serve as waiver of claim on appeal that defendant had been imprisoned for conduct that Congress did not proscribe in the crime charged).
¶4In that a defendant may waive constitutional rights as part of a plea agreement, it follows that a defendant may also waive statutory rights, including the right to appeal. Every circuit that has considered the issue has reached this conclusion. United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003) (“Given that the Supreme Court has allowed a defendant to waive constitutional rights, we would be hard-pressed to find a reason to prohibit a defendant from waiving a purely statutory right.”); United States v. Khattak, 273 F.3d 557, 559-63 (3d Cir.2001); United States v. Teeter, 257 F.3d 14, 21-27 (1st Cir.2001); United States v. Hernandez, 242 F.3d 110,113-14 (2d Cir.2001); United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001); United States v. Jemison, 237 F.3d 911, 916-18 (7th Cir.2001); United States v. Nguyen, 235 F.3d 1179, 1182-84 (9th Cir.2000); United States v. Brown, 232 F.3d 399, 402-06 (4th Cir.2000); United States v. Rubio, 231 F.3d 709, 711-12*496(10th Cir.2000); United States v. Howle, 166 F.3d 1166, 1168-69 (11th Cir.1999); United States v. Melancon, 972 F.2d 566, 567 (5th Cir.1992).
¶5Among the policy reasons in support of plea-agreement appeal waivers is the need for finality in the process:
The chief virtues of plea agreements are speed, economy, and finality. Waivers of appeal in plea agreements preserve the finality of judgments and sentences imposed pursuant to valid pleas of guilty. We also note that plea agreements are of value to the accused in order to gain concessions from the government.
¶6United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992) (internal citations omitted).
¶7The majority asserts that plea-agreement appeal waivers are fundamentally different from post-trial/post-sentence waivers, the latter implicating broader institutional concerns related to the integrity of the conviction. But the institutional concerns related to the integrity of a conviction obtained by plea agreement or by trial are equally important; and courts are required to conduct a Rule 15 inquiry to ensure that a plea is “accurate, voluntary, and intelligent (i.e., knowingly and understandingly made).” Perkins v. State, 559 N.W.2d 678, 688 (Minn.1997); see Minn.R.Crim. P. 15.01.
¶8I recognize that there is a trend in the circuits of instituting a greater level of scrutiny of plea-bargain appeal waivers. See, e.cj., Andis, 338 F.3d at 890-91 (excepting from appeal waivers claims of illegal sentences, breach of the plea agreement and ineffective assistance of counsel); Teeter, 257 F.3d at 25, nn. 9 & 10 (stating that appeal waivers would not preclude sentencing claims based on constitutionally impermissible factors or sentences in excess of the maximum penalty allowed by law); Brown, 232 F.3d at 405-06 (expressing concern about an inartfully drafted appeal waiver permitting appeals based on claims of ineffective assistance of counsel and prosecutorial misconduct but precluding appeals from a sentence in excess of the statutory maximum); United States v. Rosa, 123 F.3d 94, 101 (2d Cir.1997) (holding that appellate court oversight permits review of appeal waivers on a case-by-case basis).
¶9I also understand that commentators have expressed much concern over plea-bargain appeal waivers. See, e.g., ._, Plea Bargain Waivers Reconsidered: A Legal Pragmatist’s Guide to Loss, Abandonment and Alienation, 68 Fordham L.Rev.2011, 2085-95 (2000) (proposing a new approach for analyzing plea-bargain waivers and arguing for re-evaluation of appeal waivers); Joseph A. Colquitt, Ad Hoc Plea Bargaining, 75 Tul. L.Rev. 695, 749 (2001) (calling for the retention of a process for review of “inappropriate, unethical, or illegal plea bargains”); Robert K. Calhoun, Waiver of the Right to Appeal, 23 Hastings Const. L.Q. 127, 211-15 (1995) (exploring public policy issues and arguing that appeal waivers should either be disapproved or given very restricted scope).
¶10These concerns, however, have little application in a post-trial/post-sentence waiver of appellate rights following an appeal and submission of an appellate brief by legal counsel on a defendant’s behalf. When a bargain is made for a specific sentence within the presumptive range of a guidelines system, “the policies underlying the right to appeal have less force ….” Calhoun, supra 210. But those rights that go to the very center of the validity of the appeal waiver, including effective assistance of counsel and the requirement that the waiver be voluntary and intelligent, are unwaivable. Because of our holding in State v. Misquadace, 644 N.W.2d 65, 71-72*497(Minn.2002), a defendant should also not be able to waive claims of sentencing error. Additionally, I would except claims based on prosecutorial misconduct from any waiver.
¶11In the context of a post-trial/post-sentence waiver, the court should conduct an inquiry of the defendant, similar to Minn. R.Crim. P. 15.01, to ensure the validity of the waiver. See Butala v. State, 664 N.W.2d 333, 339 (Minn.2003). The inquiry for an appeal waiver agreement should involve similar questions and also include an explanation by the court as to the scope and requirements of the agreement. In that no similar inquiry was conducted in this case and Spann asserted ineffective assistance of counsel in connection with the appeal waiver, I would remand for a comprehensive inquiry by the district court.
¶12(dissenting).
¶13I agree with the conclusion of Justice Russell Anderson that, with certain exceptions, post-sentence appeal rights may be waived so long as procedural protections are in place to ensure that the waiver is knowing, intelligent and voluntary. I dissent separately because I would go further. I would conclude that adequate procedural protections were in place and that Spann’s postconviction petitions do not allege sufficient facts to justify an evidentia-ry hearing on his claim that his waiver was the product of ineffective assistance of counsel or that his consecutive sentence was not authorized by law. Accordingly, I would affirm the denial of Spann’s postcon-viction petition without a hearing.
¶141. The district court made a sufficient inquiry of Spann to ensure that his appeal waiver was knoiving, intelligent and voluntary.
¶15I agree that it is important for the district court to conduct an inquiry of the defendant, similar in intent to that required by Minn. R.Crim. P. 15.01, before accepting a post-trial, post-sentence appeal waiver. But that inquiry need not include all parts of rule 15.01 because the defendant has had the benefit of a full jury trial and a sentencing hearing and thus does not need to be advised of the rights he has already enjoyed at those stages of the proceeding. The defendant has heard all of the evidence, has had the opportunity to cross-examine witnesses and to testify, has heard the court’s instructions on the charge and the state’s burden of proof, and has received his sentence. Thus, the inquiry for a post-trial, post-sentence appeal waiver need not include these matters and can focus on a defendant’s right to appeal.
¶16Here, the record of the resentencing hearing shows the following: (1) Spann’s appeal brief had already been filed and thus he was fully aware of the precise issues he could raise on appeal. (2) Spann had been advised by his counsel’s letter of July 24, 2001, about the state’s proposal. On July 30, 2001, he signed a letter to his counsel indicating:
I have decided to accept the state’s offer. In exchange for being re-sentenced at two consecutive 86 months sentences totaling 172 months, I will dismiss my appeal and agree to not challenge these convictions in any other post-conviction relief proceedings.
¶17(3) Spann and his counsel then signed a stipulation to remand the case from the court of appeals to the district court. (4) Spann was present at the resentencing hearing where each of the above matters was described. (5) At the hearing, Spann, on the record, acknowledged that he had discussed the appeal issues and the possible outcome of the appeal with his counsel, stated his agreement to waive his rights to appeal, and, on further examination by the *498state, said that this is what he wanted to do. Spann does not claim that these procedural protections were insufficient to ensure that his waiver was knowing, intelligent and voluntary. In fact, Spann does not challenge the postconviction court’s finding that his waiver was knowing, intelligent and voluntary.
¶182. If the district court’s inquiry was in any respect deficient, Spann’s appropriate remedy was to identify that deficiency in his postconviction petition.
¶19I agree with Justice Russell Anderson that Spann’s appeal waiver did not waive his right to later challenge or seek to withdraw his waiver so long as he could show that his waiver was not knowingly, intelligently or voluntarily made. I also agree that Spann’s appeal waiver does not preclude his claim that his counsel was ineffective respecting the waiver, so long as he can show that his counsel was ineffective in a way that prevented the waiver from being knowing, intelligent and voluntary. Thus, even if we were to conclude that the procedure followed when Spann’s waiver was accepted was insufficient to ensure that his waiver was knowing, intelligent and voluntary, we need not set aside the waiver because Spann’s remedy is to seek to withdraw his plea in a postconviction proceeding. See, e.g., State v. Coe, 290 Minn. 537, 538, 188 N.W.2d 421, 422 (1971) (stating that if the defendant can provide proof of ineffective assistance of trial counsel, he could obtain relief from his plea in a postconviction proceeding).
¶20In this postconviction setting, Spann had the opportunity to challenge his appeal waiver by alleging facts showing that his waiver was the product of ineffective assistance of counsel or was otherwise not knowing, intelligent or voluntary. Under our postconviction law, Spann would be entitled to a hearing on that challenge only if he alleged sufficient facts which, if proven, would entitle him to relief. See, e.g., State v. Kelly, 535 N.W.2d 345, 347 (1995); Cable v. State, 169 N.W.2d 391, 394, 284 Minn. 89, 94 (1969). But Spann’s petitions contain only argumentative assertions without factual support. See, e.g., Hale v. State, 566 N.W.2d 923, 926 (1997).
¶21The pro se petition contains only conclu-sory statements without any factual support. As to the claim of ineffective assistance of counsel, Spann does not precisely state what actions of counsel he considers to be incompetent, nor provide the expert opinion of any attorney that his counsel’s conduct fell below the accepted standard. To obtain a postconviction hearing, Spann was required to “allege facts which would affirmatively prove that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Fratzke v. State, 450 N.W.2d 101, 102 (Minn.1990).
¶22In describing his ineffective assistance of counsel claim, Spann states:
The State and Counsel Misrepresented the facts to Petitioner about his Constitutional Right to seek any Relief from the Courts if relief is available to him in any way. To State on behalf of the Federal Court’s behalf, that Petitioner is waiving all Rights to Appeal the case in this Court, or in any Post Conviction or Federal Court Proceedings, should be deemed impermissible to the highest order.
¶23To the extent that Spann is suggesting that counsel advised him that the waiver would preclude direct appeal, that advice was, in my view, correct. To the extent that Spann is suggesting that counsel advised him that the waiver could also pre-*499elude postconviction review or federal ha-beas corpus, that advice may have been incorrect. But if, contrary to that advice, Spann retained the right to challenge his waiver in postconviction proceedings, Spann was not prejudiced by that advice. Advice by counsel that the consequences of a waiver would be worse than they actually are would not detract from a knowing, intelligent and voluntary waiver, but would actually reinforce it — a defendant who was willing to waive under the mistaken belief that the effect of the waiver was broader cannot legitimately complain if the true effect of the waiver is narrower.
¶24Because Spann had the right to present his claim of ineffective assistance of counsel in this postconviction petition, the procedural protections surrounding his waiver were fully in place. And because Spann’s postconviction petition fails to present sufficient evidence to support his claim of ineffective assistance of counsel, the district court did not err in denying his petition without a hearing.
¶253. Spann’s postconviction petition likewise fails to present a proper challenge to his consecutive sentence.
¶26I also agree with Justice Russell Anderson that an appeal waiver does not waive the right of a defendant to challenge an illegal sentence. Thus, Spann had the right in this postconviction petition to claim that his consecutive sentence was not authorized by law. But, Spann’s petition fails to make or support that claim.
¶27First, Spann did not challenge his consecutive sentence in the briefs filed on his direct appeal. The only sentencing issue raised in those briefs was a challenge to the upward departures. Those departures were eliminated when Spann was resen-teneed.
¶28Even if Spann’s failure to challenge his consecutive sentence on direct appeal did not preclude doing so by a postconviction petition, Spann’s petition fails because he did not bring it within 90 days of the sentence, as required by Minn. R.Crim. P. 28.05. The only exception to this 90-day requirement is to correct a sentence this is not authorized by law, in a proceeding pursuant to Minn. R.Crim. P. 27.03. But Spann does not claim that his consecutive sentence is not authorized by law. The Minnesota Sentencing Guidelines specifically make a consecutive sentence permissive under these circumstances. Minn. Sent. Guidelines II.F.
¶29Accordingly, I would conclude that Spann’s petition is insufficient to meet the threshold for an evidentiary hearing. I would affirm.