                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A14-0310

                            Randall Mark Spears, petitioner,
                                     Appellant,

                                          vs.

                                  State of Minnesota,
                                      Respondent.

                                Filed August 25, 2014
                                      Affirmed
                                   Schellhas, Judge

                              Scott County District Court
                                 File No. 1995-10941

Randall Mark Spears, Moose Lake, Minnesota (pro se appellant)

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

Patrick J. Ciliberto, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

      Considered and decided by Connolly, Presiding Judge; Peterson, Judge; and

Schellhas, Judge.

                         UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant challenges his sentences for first-degree criminal sexual conduct and

kidnapping. We affirm.
                                        FACTS

      This appeal is the latest in a series of appeals by appellant Randall Spears

relating to his convictions of first-degree criminal sexual conduct under Minn. Stat.

§ 609.342, subd. 1(e)(i) (1994), and kidnapping under Minn. Stat. § 609.25 (1994). This

court previously summarized the facts related to the offense as follows:

                     Appellant Randall Spears met the victim, R.H., at a
             south Minneapolis bar in July 1995. R.H. and appellant
             drank, talked, and smoked a marijuana joint together. Later
             that evening, R.H. and appellant left the bar and went to a
             local fast food restaurant. After they ate, R.H. asked
             appellant to take her home. Appellant told R.H. that he
             wanted to show her a pretty spot where they could view the
             city. R.H. repeatedly asked to go home and said she did not
             want to see the city. After driving for approximately 20
             minutes, appellant pulled off the main road and leaned over
             to kiss R.H. R.H. pushed him away and grabbed for the
             door, but she was stopped from leaving when appellant
             punched her in the face twice, and told her that this was
             “going to happen no matter what.” Appellant choked R.H.
             while she was crying hysterically and forced her into the
             backseat. R.H. moved toward the sunroof, but appellant told
             her that she wouldn’t get very far and that he would kill her
             if she did not cooperate. Appellant demanded that R.H. take
             off her shorts and told her that she could take this the “easy
             way or the hard way.” Appellant then forced his penis into
             R.H.’s vagina while she screamed and cried. Even though
             R.H. was menstruating appellant made R.H. perform oral
             sex on him after he had vaginally penetrated her.

                    After appellant vaginally penetrated R.H. a second
             time, R.H. asked if she could go to the bathroom. R.H. was
             planning to escape, but appellant stood next to her while she
             squatted on the ground. The two went back into the car and
             appellant again told R.H. to get into the backseat. R.H. went
             into the backseat, took off her shorts, and started to cry.
             Appellant told R.H. “if you don’t quit crying I am going to
             f-ing kill you.” R.H. begged for her life as appellant
             vaginally penetrated her a third time.


                                           2
                    After the third incident, appellant began to drive
             back to Minneapolis. Appellant pulled off the freeway,
             stating that he needed to urinate. As the car pulled to a stop
             R.H. fought her way out of the car. R.H. ran to a nearby
             house and pounded on the door while screaming “help me,
             help me.” Appellant pulled away in his car. A resident
             called the police and allowed R.H. to enter the resident’s
             home. Another neighborhood resident also heard R.H.
             screaming, saw a car speeding away, and called 911.

State v. Spears, CX-99-2092, 2000 WL 558162, at *1 (Minn. App. May 9, 2000),

review denied (Minn. June 27, 2000) (Spears III).

      This court previously summarized the procedural history as follows.

                    In his first appeal, Spears claimed that the district
             court erred by sustaining the state’s Batson challenge,
             entering six convictions for three acts of criminal sexual
             conduct, and imposing multiple sentences, including a
             sentence of life imprisonment. State v. Spears, 560 N.W.2d
             723, 725 (Minn. App. 1997), review denied (Minn. May 28,
             1997) (Spears I). Spears further argued that the district court
             abused its discretion by admitting evidence of the victim’s
             out-of-court statements describing the attack to police and a
             private citizen. Id. We vacated three of Spears’s convictions
             as duplicative, reversed five of Spears’s criminal-sexual-
             conduct sentences, and remanded for resentencing. Id. at
             726–28. On remand, the district court sentenced Spears to
             40 years in prison on one count of criminal sexual conduct
             and an additional 40 years, to be served consecutively, on
             one count of kidnapping. State v. Spears, No. C8-98-2307,
             1999 WL 319022, at *1 (Minn. App. May 18, 1999), review
             denied (Minn. July 28, 1999) (Spears II).

                     Spears appealed, and we again remanded for
             resentencing, concluding that the consecutive 40-year
             sentences were an impermissible expansion of the original
             sentence. Id. at *2. Following the second remand, the
             district court sentenced Spears to 40 years in prison on the
             criminal-sexual-conduct conviction. Spears III, 2000 WL
             558162, at *2. The 40-year sentence was an enhancement of
             the statutory maximum 30-year sentence based on judicial


                                           3
fact-finding of aggravating factors under Minn. Stat.
§ 609.1352, the patterned-sex-offender statute. Spears v.
State, 725 N.W.2d 696, 698 (Minn. 2006) (Spears V); see
also Minn. Stat. § 609.342, subd. 2 (1994) (setting a 30-year
statutory maximum for conviction of first-degree criminal
sexual conduct); Minn. Stat. § 609.1352, subd. 1a
(lengthening the statutory maximum for individuals
sentenced under the patterned-sex-offender statute to 40
years). The district court also imposed a consecutive five-
year sentence on the kidnapping conviction, after finding
that there were severe aggravating factors. Spears III, 2000
WL 558162, at *2. This court affirmed the 540-month
sentence. Id. at *2–*4.

        After this court affirmed the sentence, Spears filed a
petition for postconviction relief, raising a claim under
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000). The district court denied the petition, and this court
affirmed, holding that Spears’s claim was barred under
State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741
(1976), because he did not challenge his sentence on Sixth
Amendment grounds in his direct appeal. Spears v. State,
C0-01-76 (Minn. App. Aug. 1, 2001), review granted and
stayed (Minn. Oct. 24, 2001), review denied (Minn. Jan. 29,
2002) (Spears IV). The Minnesota Supreme Court granted
review and stayed proceedings pending its decision in State
v. Grossman, 636 N.W.2d 545 (Minn. 2001) (holding that
enhancement of the statutory maximum 30-year sentence
for first-degree criminal sexual conduct based on judicial
findings under the patterned-sex-offender statute is
unconstitutional). See Spears V, 725 N.W.2d at 699. The
supreme court ultimately vacated the stay and denied
review. Id.

       Spears again petitioned for postconviction relief,
arguing that his 40-year sentence for criminal sexual
conduct was unauthorized by the statutes in effect at the
time of his offense; was unconstitutional under Apprendi, as
applied in Grossman; and was unconstitutional under
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004). Id. The district court denied the petition, and this
court affirmed. Id. Upon further review, the supreme court
held that Blakely does not apply to Spears’s collateral attack


                              4
              on his sentence because the sentence was final before
              Blakely was announced; but the court held that Spears is
              entitled to benefit from Apprendi. Id. at 699-700. The
              supreme court remanded to the district court for
              resentencing. Id. at 702.

                      On remand, the state demanded a sentencing trial
              under Minn. Stat. § 244.10 (2008) and requested sentencing
              under the patterned-sex-offender statute. See Minn. Stat.
              § 244.10, subd. 5(a) (“When the prosecutor provides
              reasonable notice under subdivision 4, the district court
              shall allow the state to prove beyond a reasonable doubt to a
              jury of 12 members the factors in support of the state’s
              request for an aggravated departure from the Sentencing
              Guidelines or the state’s request for an aggravated sentence
              under any sentencing enhancement statute or the state’s
              request for a mandatory minimum under section 609.11 as
              provided in paragraph (b) or (c).”). . . .

                     ....

                     The district court imposed a 360-month sentence on
              the criminal-sexual-conduct conviction and a consecutive
              five-year sentence on the kidnapping conviction.

State v. Spears, A10-264, 2011 WL 134935, at *2–*4 (Minn. App. Jan. 18, 2011)

(footnote omitted), review denied (Minn. Mar. 15, 2011) (Spears VI). Spears

“challenge[d] his executed prison sentence of 360 months for criminal sexual conduct

in the first degree, which is an aggravated departure from the presumptive guidelines

sentence of 122 months under Minn. Stat. § 609.1352 (1994 & Supp. 1995), the

patterned-sex-offender statute.” Id. at *1. This court affirmed, concluding that the

resulting error, if any, from Spears’s alleged evidentiary issues was harmless. Id. at *8.

       In October 2013, Spears moved for a “Correction or Reduction of Sentence,”

pursuant to Minn. R. Crim. P. 27.03, subd. 9, specifying that his motion was “not a



                                             5
post-conviction appeal.” Spears argued to the district court that it lacked authority to

impose (1) “any sentence other than a presumptive sentence of 122 months” for first-

degree criminal sexual conduct, (2) any sentence for kidnapping, or (3) a sentence

longer than the original sentence. The district court denied Spears any relief.

       This appeal follows.

                                    DECISION

       In denying Spears’s motion, the district court stated that “[t]he Court of Appeals

did not find it improper that the Court imposed a consecutive sentence for kidnapping,”

that “[Spears]’s new aggregated sentence does not exceed his original aggregate

sentence and is therefore, proper,” and that “[Spears]’s current sentence of 420 months

is shorter than his last sentence of 540 months and both are shorter than the original

sentence.” Spears argues that, due to actions on the part of the original sentencing court

in 1996, the district court lacked authority to sentence him to (1) 360 months instead of

122 months for criminal sexual conduct, (2) any sentence for kidnapping, and

(3) consecutive sentences. He raises his consecutive-sentences argument for the first

time on appeal. None of Spears’s arguments has merit.

       Appellate courts “review the district court’s denial of a motion to correct a

sentence for an abuse of discretion,” reviewing “legal conclusions de novo

and . . . factual findings under the clearly erroneous standard.” Townsend v. State, 834

N.W.2d 736, 738 (Minn. 2013). “The relevant procedures for review of a sentence are

provided by the Minnesota Rules of Criminal Procedure and Minnesota Statutes.” Id.




                                            6
              Rule 27.03, subdivision 9 states that the district court “may
              at any time correct a sentence not authorized by law.”
              Section 590.01 provides that “a person convicted of a crime,
              who claims . . . the sentence . . . made violated the person’s
              rights under the Constitution or laws of the United States or
              of [Minnesota]” may “commence a proceeding to secure
              relief by filing a petition [to] . . . correct the sentence.”
              Generally, the procedure for a motion filed under rule
              27.03, subdivision 9 is less formal than the procedure
              involving a postconviction petition brought under section
              590.01.

Id. at 738−39 (citations omitted). The supreme court has “not yet addressed whether

the statutory time bar under section 590.01, subdivision 4(a)(2), or the procedural bar

under Knaffla apply to a motion to correct a sentence under rule 27.03, subdivision 9.”

Id. at 739.

       Spears and respondent State of Minnesota disagree about the proper treatment of

Spears’s motion. Spears argues that his motion for a sentence correction under Minn. R.

Crim. P. 27.03, subd. 9, should be treated as such; the state argues that Spears’s motion

should be treated as a petition for postconviction relief.

                      The two alternative means of challenging a sentence
              are subject to different procedural requirements . . . First, the
              legislature has imposed strict time limits on postconviction
              petitions. As a general rule, “[n]o petition for postconviction
              relief may be filed more than two years after” a judgment of
              conviction becomes final. Second, both the supreme court and
              the legislature have imposed limitations on repetitive
              challenges to a conviction or a sentence under the
              postconviction act.

Washington v. State, 845 N.W.2d 205, 210 (Minn. App. 2014) (citations omitted). In

Washington, this court stated “that the two-year time limit in section 590.01,

subdivision 4(a) does not apply to motions properly filed under rule 27.03, subdivision


                                             7
9.” Id. at 211 (emphasis added) (quotation omitted). A motion is properly filed under

rule 27.03, subdivision 9, “only if the offender challenges the sentence on the ground

that it is ‘unauthorized by law’ in the sense that the sentence is contrary to an applicable

statute or other applicable law.” Id. at 214; see also State v. Borrego, 661 N.W.2d 663,

667 (Minn. App. 2003) (“An unauthorized sentence must be contrary to statutory

requirements.”).

       Spears argues that the district court’s 360-month sentence was unauthorized and

that the court only had authority to sentence him to the guidelines sentence of 122

months for criminal sexual conduct and 60 months for kidnapping, concurrently. Spears

cites State v. Geller, 665 N.W.2d 514, 514–15 (Minn. 2003), which provides that “[n]o

departure from the presumptive guidelines sentence is permitted absent a statement of

the reasons for a sentencing departure placed on the record by the court at the time of

sentencing.” But Spears’s reliance on Geller is misplaced because, at Spears’s original

sentencing, the district court explained that it was imposing a life sentence because of

its understanding that a life sentence was statutorily mandated. In resentencing Spears

on remand, the district court did not err by imposing an upward-departure sentence and

therefore Spears’s current sentence is not unauthorized by law and consequently cannot

be challenged under Minn. R. Crim. P. 27.03, subd. 9. See Washington, 845 N.W.2d at

214–15 (concluding that a claim is not within Minn. R. Crim. P. 27.03, subd. 9, when

the “claim asserts only a fact-based challenge to the record of the sentencing hearing

and, ultimately, to the district court’s findings of facts relevant to his sentence”).




                                              8
       Even if we deemed Spears’s challenge to fall within the scope of Minn. R. Crim.

P. 27.03, subd. 9, his challenge would be barred by the doctrine of law of the case

because Spears previously argued that a sentence greater than 122 months was (1) an

impermissible upward departure before this court, Spears VI, 2011 WL 134935, at *1,

and (2) unconstitutional under Blakely before the supreme court, Spears V, 725 N.W.2d

at 699. See Lynch v. State, 749 N.W.2d 318, 321 (Minn. 2008) (“This doctrine provides

that when a court decides upon a rule of law, that decision should continue to govern

the same issues in subsequent stages in the same case.”) (quotations omitted)); State v.

Bailey, 732 N.W.2d 612, 623 (Minn. 2007) (“Issues determined in a first appeal will not

be relitigated in the trial court nor re-examined in a second appeal.”).

       Spears also argues that the district court lacked authority to sentence him for

kidnapping because the original sentencing court did not sentence him for kidnapping.

Because this court addressed this argument in Spears II, 1999 WL 319022 at *2, by

citation to State v. Coe, 411 N.W.2d 180 (Minn. 1987), this argument also is barred by

the doctrine of law of the case. Similarly, Spears’s argument that the district court

lacked authority to impose consecutive sentences for first-degree criminal sexual

conduct and kidnapping is barred by the doctrine of law of the case because this court

already addressed the argument in Spears III, 2000 WL 558162, at *3.

       We conclude that Spears’s challenged sentences are not unauthorized under the

law. The district court therefore did not err by denying Spears’s request for relief.

       Affirmed.




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