                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2016).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-0836

                                    State of Minnesota,
                                       Respondent,

                                             vs.

                                  Randy Joseph Fellman,
                                       Appellant.

                                  Filed January 3, 2017
                                        Affirmed
                                       Ross, Judge

                              Goodhue County District Court
                               File No. 25-KX-02-001364

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

Stephen N. Betcher, Goodhue County Attorney, Erin L. Kuester, Assistant County
Attorney, Red Wing, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard A. Schmitz, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Jesson,

Judge.

                         UNPUBLISHED OPINION

ROSS, Judge

         The state filed criminal charges against Randy Fellman for sexually abusing

multiple boys orally and giving children drugs, after which he pleaded guilty to first-degree
criminal sexual conduct, two counts of second-degree criminal sexual conduct, and

contributing to the delinquency of a minor. Consistent with the plea agreement, the district

court sentenced Fellman to 216 months in prison and imposed two consecutive periods of

conditional release. Fellman moved to correct his sentence, arguing that consecutive

conditional-release terms are unauthorized by law. The district court construed the motion

as a postconviction petition and denied it as Knaffla-barred. We affirm because Fellman’s

challenge is a postconviction petition subject to Knaffla.

                                          FACTS

       The state charged Randy Fellman by amended complaint with fifteen criminal

counts for sexually assaulting multiple boys and providing marijuana to children between

1992 and 2002. He reached a plea agreement with the state in December 2002 and signed

a plea petition acknowledging that he understood the agreement and that he was waiving

his trial rights. His attorney and the prosecutor examined him, covering the charges, the

rights he was waiving, the sentencing implications, and the factual basis for his plea. The

prosecutor established Fellman’s understanding of his sentence this way:

              Q: And you understand the terms of the plea agreement, is that
              true?
              A: Yes I do.

              Q: Do you understand that you will be receiving a sentence of
              216 months, commitment to the Commissioner of Prisons if the
              Judge accepts the terms of the plea agreement?
              A: Yes.

              Q: Do you understand that you would be serving a minimum
              of 144 months in prison, do you understand that?
              A: Yes.



                                             2
              [Questions concerning supervised release.]

              Q: Do you also understand that under the terms of the plea
              agreement, you will be subject to something called condition
              [sic] release?
              A: Yes.

              Q: Do you understand that the conditional release period is
              separate from the supervised release period of time?
              A: Yes.

              Q: Do you understand that that’s a specific term for registered
              sex offenders[?] By entering your guilty plea, if the Judge
              accepts that, you will be a sex offender under the law, do you
              understand that?
              A: Yes.

              Q: Do you understand that the terms of your conditional release
              period, pursuant to the plea agreement, would be 10 years have
              [sic] conditional release?
              A: Yes.

       Fellman pleaded guilty to one count of first-degree criminal sexual conduct, two

counts of second-degree criminal sexual conduct, and one count of contributing to the

delinquency of a minor. The district court accepted the plea. It sentenced Fellman in

February 2003, establishing, among other things, that the sentence included “ten years of

conditional release.”

       Fellman moved in February 2004 to modify his conditional-release term, arguing

that he committed some of his offenses before the conditional-release statute became

effective and that consecutive conditional-release terms are not permitted. But Fellman

withdrew the motion “after discovering that the [department of corrections] did not

aggregate the purported five-year consecutive conditional release terms when it

implemented Fellman’s sentences.” Fellman petitioned for postconviction relief in


                                            3
February 2005, challenging the sentencing departures in light of the then-new sentencing-

jury requirement for aggravated sentences as announced in Blakely v. Washington, 542

U.S. 296, 124 S. Ct. 2531 (2004). The district court denied Fellman’s postconviction

petition and we affirmed in an order opinion. Fellman v. State, No. A05-0961 (Minn. App.

Mar. 2, 2006) (order op.), review denied (Minn. May 16, 2006).

       Fellman moved to correct his sentence in February 2016, arguing that the district

court must reduce the conditional-release term from ten years to five years. The district

court denied his motion, treating it as a Knaffla-barred postconviction petition. Fellman

appeals.

                                       DECISION

       Fellman challenges the district court’s denial of his motion by contesting how the

district court characterized it. The district court characterized the motion, which Fellman

filed under Minnesota Rule of Criminal Procedure 27.03, as a statutory petition for

postconviction relief. Then it denied the motion as barred under the Knaffla rule that

prohibits challenges that were (or could have been) raised before. We generally review a

district court’s denial of a postconviction petition for an abuse of discretion. Riley v. State,

819 N.W.2d 162, 167 (Minn. 2012). But whether the district court properly characterized

the motion as a petition for postconviction relief under Minnesota Statutes section 590.01

(2014) is a threshold issue that requires us to interpret the rule and the statute. We interpret

procedural rules and statutes de novo. State v. Coles, 862 N.W.2d 477, 479 (Minn. 2015).

       A person convicted of a crime may challenge his sentence in two ways. He may file

a petition for postconviction relief under Minnesota Statutes section 590.01, subdivision 1,


                                               4
or he may file a motion to correct his sentence under Minnesota Rule of Criminal Procedure

27.03, subdivision 9. Washington v. State, 845 N.W.2d 205, 210 (Minn. App. 2014). The

two remedies face different conditions. Vazquez v. State, 822 N.W.2d 313, 317–18 (Minn.

App. 2012). A petition for postconviction relief has a temporal condition: it must generally

be filed within two years after the entry of judgment of the petitioner’s conviction or

sentence, or an appellate court’s disposition of the petitioner’s direct appeal. Minn. Stat.

§ 590.01, subd. 4(a). It also has a substantive condition in that, after a direct appeal, “all

matters raised therein, and all claims known but not raised, will not be considered upon a

subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243

N.W.2d 737, 741 (1976); see also Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003)

(extending the Knaffla restriction to also bar claims that were known or raised in a previous

postconviction petition). The restriction has been extended further to bar claims that should

have been known at the time of the previous petition. See Brown v. State, 746 N.W.2d 640,

642 (Minn. 2008). By contrast, a motion to correct an unauthorized sentence under rule

27.03, subdivision 9, is not subject to these conditions. Washington, 845 N.W.2d at 211.

Fellman therefore seeks to have his filing treated as a sentence-correction motion, not as a

postconviction petition.

       The supreme court has instructed the district court when to categorize a

postconviction filing as a sentence-correction motion under the rules or as a postconviction

petition under the statute. It explained that, when a defendant challenges a sentence

imposed as part of a plea agreement, the district court properly treats his purported rule

27.03 motion as a statutory petition for postconviction relief. Coles, 862 N.W.2d at 481–


                                              5
82. The district court here followed Coles, reasoning that Fellman’s challenge implicates

the plea agreement and is therefore a section 590.01 postconviction petition rather than a

rule 27 motion.

      Fellman argues unconvincingly that Coles does not apply. He attempts to draw a

distinction between a challenge to the legality of a sentence on improper-departure

grounds, see Coles, 862 N.W.2d at 479, and a challenge like his, which maintains that the

sentence itself is unauthorized. Fellman cites Reynolds v. State, 874 N.W.2d 257 (Minn.

App. 2016), aff’d, ___ N.W.2d ___, 2016 WL 7118915 (Minn. Dec. 7, 2016), and State v.

Garcia, 582 N.W.2d 879 (Minn. 1998), as support. Neither Reynolds nor Garcia supports

Fellman’s position.

      In Reynolds, the appellant challenged a sua sponte sentence amendment that

imposed a conditional-release term. 874 N.W.2d at 259. We noted, “Even if [Reynolds]

prevails, his plea and conviction are unaffected. Under this assessment, it appears that

Reynolds properly brought his challenge under the rule.” Id. at 261. While Fellman’s case

was pending before us, the Minnesota Supreme Court affirmed our decision. Reynolds v.

State, ___ N.W.2d ___, ___, 2016 WL 7118915, at *6 (Minn. Dec. 7, 2016). The supreme

court agreed with us that the district court lacked the authority to impose a ten-year

conditional-release term because the basis for that imposition was a fact not found by a

jury or admitted to by Reynolds. Id. at ___, 2016 WL 7118915, at *3. The district court’s

conditional-release term therefore rendered the sentence not authorized by law and subject

to challenge under rule 27. Id. This differs from the situation in Coles; the Coles court

described Coles’s contested sentence as “part of a negotiated package” that implicated the


                                            6
terms of the plea agreement. Coles, 862 N.W.2d at 481. It is true that Reynolds addresses

an unauthorized 10-year conditional-release term, similar to the now-contested part of

Fellman’s sentence. But this similarity is not material. Coles is instead materially similar

to this case because the sentence here, like the sentence in Coles, was imposed as part of a

plea bargain, which is in turn integral to the conviction. So unlike the situation in Reynolds,

where “the plea and conviction are unaffected” by the postconviction challenge, Fellman’s

plea and conviction would necessarily be affected by his postconviction challenge.

       And in Garcia, which long predated Coles, the defendant challenged the post-

sentencing addition of a conditional-release term to his plea-bargained sentence and sought

specific performance of the plea agreement. 582 N.W.2d at 880. Because the sentence

without the conditional-release period was unauthorized, the district court could amend the

sentence under rule 27.03, subdivision 9. Id. at 881. But the Garcia court also held that

Garcia was not entitled to specific performance, and it allowed him either to withdraw from

the plea agreement or continue under the amended sentence. Id. at 882. Fellman wants his

conditional-release term reduced but objects to withdrawing from his plea. As the Coles

court reasoned in rejecting this approach, “[i]f the defendant succeeds in reducing his or

her sentence, he or she retains the benefit of the reduced criminal charge but the State no

longer receives the benefit of the longer sentence.” 862 N.W.2d at 481.

       Fellman also argues on principle that construing his claim as a postconviction

petition (and holding him to the Knaffla restrictions), rather than as a motion to correct his

sentence, would undermine his right to challenge a sentence that is not authorized by law.




                                              7
See Minn. Stat. § 609.095(a) (2014). His argument echoes Justice Page’s dissent in Coles,

which expressed similar concerns:

              Under the court’s decision, however, for the first time in our
              court’s history, we hold that there is in effect no remedy for the
              imposition of an illegal sentence. This result cannot stand. It
              contradicts our authority to correct an illegal sentence “at any
              time” under Rule 27.03, subdivision 9, runs counter to the
              Legislature’s “stated public policy of achieving uniformity in
              sentencing” by way of the sentencing guidelines, . . . and is
              inconsistent with our obligation to do justice.

Coles, 862 N.W.2d at 486 (Page, J., dissenting) (citation omitted). We are bound by the

majority’s reasoning in Coles, not by the dissent. Fellman fails to distinguish this case from

Coles, which we will follow regardless of its potentially harsh consequences. Applying

Coles, we ask whether Fellman’s challenge to the consecutive terms of conditional release

is, in essence, a challenge to the underlying plea agreement. The record informs us that the

answer is yes. Fellman signed a plea petition and was examined sufficiently to assure both

his understanding and the voluntary nature of his agreement. The parties had negotiated

the plea agreement. Fellman received its benefits, including its sentencing terms and the

state’s dismissing of several counts. The state was relieved of its trial burdens. Each party

benefited from the resulting certainty in the outcome. That Fellman would face conditional

release for ten years by operation of two consecutive five-year periods was a term in the

negotiated agreement. Fellman’s challenge to that term of his sentence therefore implicates

the plea agreement and the conviction, and the district court properly characterized his

motion to correct his sentence as a petition for postconviction relief under section 590.01.




                                              8
       The remaining question is less complicated, which is whether the district court

abused its discretion when it denied Fellman’s petition as Knaffla-barred. “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.” Riley, 819 N.W.2d at 167

(quotation omitted).

       Fellman seems correct in doubting the legality of consecutive terms of conditional

release. Fellman cites Miller v. State (for the first time on appeal), where we held that

consecutive conditional-release terms were unauthorized as a matter of law. 714 N.W.2d

745, 748 (Minn. App. 2006). But the district court’s apparently erroneous conclusion of

law on this point does not prevent the effect of Coles and the consequent Knaffla bar.

       In concluding that Fellman’s claim was Knaffla-barred, the district court considered

Fellman’s 2005 postconviction petition and observed that “[t]here is no argument that the

consecutive periods of conditional release were unknown to [Fellman] upon the filing of

the first petition for post-conviction relief.” The district court did not address Fellman’s

2004 motion to correct his sentence, but that motion also implies that Fellman knew about

the claim at the time of his 2005 petition. The district court’s conclusion was inescapable:

Fellman knew or should have known of his potential claim when he previously petitioned

for postconviction relief. The district court did not abuse its discretion by applying the

Knaffla bar to Fellman’s conditional-release-term challenge.

       Fellman argues alternatively that, even if Coles applies and the postconviction

statute is the appropriate avenue for his challenge, his challenge cannot be barred because

the department of corrections changed its implementation of the sentence after the original


                                             9
sentencing date. The argument has at least four flaws. First, Fellman raises it for the first

time on appeal, so the district court had no opportunity to consider whether an exception

to the Knaffla bar applies. See Schleicher v. State, 718 N.W.2d 440, 445 (Minn. 2006)

(holding that parties may not raise issues for the first time on appeal from the denial of a

postconviction petition); Washington, 845 N.W.2d at 216 (holding that a defendant may

not assert an exception to the Knaffla bar for the first time on appeal). Second, the argument

discusses the statutory, two-year time bar, which the district court did not apply to

Fellman’s petition. Third, the argument relies on documents in his appellate addendum that

are nowhere in the record. We do not consider these documents on appeal. See Minn. R.

Crim. P. 28.02, subd. 8. And fourth, even if we were to consider Fellman’s argument

concerning the department of correction’s implementation of the sentence, the district

court’s sentencing summary mandated “10 years of conditional release” and could have

been contested regardless of the department’s implementation process.

       Affirmed.




                                             10
