                         This opinion will be unpublished and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
                                     A16-0006

                                   State of Minnesota,
                                      Respondent,

                                            vs.

                                  Theodore Pierre Jerry,
                                       Appellant.

                                 Filed August 29, 2016
                                       Affirmed
                                Smith, Tracy M., Judge

                             Hennepin County District Court
                                File No. 27-CR-13-3541

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

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

Cathryn Middlebrook, Chief Appellate Public Defender, Erik Irving Withall, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

       Considered and decided by Smith, Tracy M., Presiding Judge; Worke, Judge; and

Reilly, Judge.

                        UNPUBLISHED OPINION

SMITH, TRACY M., Judge

       Appellant Theodore Pierre Jerry appeals the district court’s imposition of an upward

durational departure on his conviction of third-degree criminal sexual conduct to be served
consecutively to his sentence for first-degree burglary. Jerry contends that (1) the zone-of-

privacy aggravating factor was a legally impermissible basis for the upward durational

departure, (2) the district court could not impose an upward durational departure and

consecutive sentence without finding two or more aggravating factors, (3) the district court

was prohibited from imposing an upward durational departure on remand because of the

law-of-the-case doctrine, and (4) the upward durational departure violates the prohibition

against harsher sentences on remand. We affirm.

                                          FACTS

       Following an incident on January 1, 2013, respondent State of Minnesota charged

Jerry with first-degree burglary-assault and third-degree criminal sexual conduct

committed with force or coercion. Jerry waived his right to a jury trial, and a bench trial

was held on both charges. After the trial, the district court found that on the early morning

of January 1, 2013, Jerry entered S.E.’s home without permission and that S.E. awoke at

approximately 5:00 a.m. “to a man standing over her in her bedroom.” The district court

further found that Jerry “grabbed S.E. by her forearms and used force to push her up against

the bedroom wall” before eventually forcing S.E. “back onto her bed” and inserting his

tongue and penis into S.E.’s vagina without her consent. Consequently, the district court

found Jerry guilty of first-degree burglary and third-degree criminal sexual conduct

committed with force or violence.

       Before trial, the state gave notice of its intent to seek an upward durational departure

based on the offenses having been “committed in a location in which the victim had an

expectation of privacy.” Jerry waived his right to have a jury determine the existence of


                                              2
aggravating factors in a Blakely trial. At the hearing on the aggravating-factor issue, the

state argued that Jerry violated “the victim’s zone of privacy” because he committed the

crimes in S.E.’s home and bedroom. Jerry argued that the zone-of-privacy aggravating

factor could not be considered because it was “within the element of the conviction for the

burglary.” The district court found that Jerry violated S.E.’s zone of privacy when he

sexually assaulted her in her bedroom.

       A presentence investigation was completed, and the report recommended that Jerry

be sentenced to the “maximum [sentence] allowed by the [s]entencing [g]uidelines.” The

report recommended sentencing Jerry first to a 129-month sentence for the first-degree

burglary and second to a 57-month consecutive sentence for the third-degree criminal

sexual conduct, resulting in a total sentence of 186 months.

       At the sentencing hearing, the state argued that the burglary “was predicated on the

criminal sexual conduct charge” and that the district court therefore should sentence the

third-degree criminal-sexual-conduct conviction first and the first-degree burglary

conviction second. The state requested that Jerry receive a 180-month sentence for

criminal sexual conduct and a 57-month consecutive sentence for first-degree burglary, a

total of 237 months. The state also discussed the alternatives it had presented in its

sentencing memorandum, including the possibility that the district court impose an upward

durational departure on the criminal-sexual-conduct conviction based on the zone-of-

privacy aggravating factor. Before announcing Jerry’s sentence, the district court heard

S.E.’s victim impact statement in which she stated that her “home, which should have been




                                            3
my haven, no longer feels safe. When I go to bed at night, I suffer panic attacks and wake

often during the night because I feel like I have someone standing over me.”

       The district court agreed with the state that the third-degree criminal sexual conduct

“was completed before and as a necessary part” of the first-degree burglary conviction.

The district court therefore sentenced Jerry first to 180 months for third-degree criminal

sexual conduct and second to a 57-month consecutive sentence for first-degree burglary.

The district court stated that it was not making an upward durational departure from the

sentencing guidelines and was not considering the zone-of-privacy aggravating factor. But

the district court observed that Jerry’s conduct was “absolutely outrageous in this case.”

       Jerry appealed, arguing that the district court erred because it sentenced him in the

wrong order. State v. Jerry, 864 N.W.2d 365, 368 (Minn. App. 2015), review denied

(Minn. Sept. 15, 2015). We reversed and remanded, holding that Jerry “should have been

sentenced for first-degree burglary first and third-degree criminal sexual conduct second.”

Id. at 369-70. We reasoned that the burglary was complete upon entry into S.E.’s home,

and, even if the burglary was not complete until an assault occurred, Jerry committed

another assault before he committed criminal sexual assault, thus completing the burglary.

Id. at 368-69.

       On remand, Jerry contended that the district court could not impose an upward

durational departure because it did not depart when it first sentenced him. Jerry also

contended that the district court could not base an upward durational departure on the zone-

of-privacy aggravating factor because it was an element of his burglary conviction. The

state contended that the district court did not foreclose an upward durational departure at


                                             4
the first sentencing and that the district court could depart upward based on the previously

found zone-of-privacy aggravating factor and was limited only by the aggregate 237-month

term to which Jerry was initially sentenced.

       The district court imposed a 129-month sentence for first-degree burglary (the top

of the presumptive guidelines range) and a 96-month consecutive sentence for third-degree

criminal sexual conduct (an upward durational departure), resulting in a total sentence of

225 months. The district court based the upward durational departure on the zone-of-

privacy aggravating factor because the criminal sexual conduct occurred in S.E.’s

bedroom.

       Jerry appeals.

                                     DECISION

       “We review a district court’s decision to depart from the presumptive guidelines

sentence for an abuse of discretion.” State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015).

We review de novo the legal question of whether a particular reason for an upward

departure is permissible. State v. Grampre, 766 N.W.2d 347, 350 (Minn. App. 2009),

review denied (Minn. Aug. 26, 2009). Interpreting the sentencing guidelines also presents

an issue of law subject to de novo review. State v. Williams, 771 N.W.2d 514, 520 (Minn.

2009). “If the reasons given for an upward departure are legally permissible and factually

supported in the record, the departure will be affirmed. But if the district court’s reasons

for departure are improper or inadequate, the departure will be reversed.” State v. Edwards,

774 N.W.2d 596, 601 (Minn. 2009) (quotation omitted).




                                               5
A.    Basis for Departure

      Jerry contends that the district court impermissibly based the upward durational

departure on the zone-of-privacy aggravating factor.

      A district court is obligated to impose a sentence provided in the sentencing

guidelines unless there are “identifiable, substantial, and compelling circumstances” to

justify an upward departure from the guidelines. Minn. Sent. Guidelines 2.D.1 (2012).

Such circumstances show “that the defendant’s conduct was significantly more . . . serious

than that typically involved in the commission of the offense in question.” Edwards, 774

N.W.2d at 601. Commission of an offense “in a location in which the victim had an

expectation of privacy” is included in the sentencing guidelines’ nonexclusive list of

aggravating factors that may support an upward durational departure.         Minn. Sent.

Guidelines 2.D.3.b(14) (2012).

      Jerry contends that the zone-of-privacy aggravating factor was an impermissible

basis for departure because it was an element of an uncharged offense—first-degree

burglary committed in an occupied dwelling under Minn. Stat. § 609.582, subd. 1(a)

(2012)—and relies primarily on State v. Jackson, 749 N.W.2d 353 (Minn. 2008). In

Jackson, the supreme court reversed an upward durational departure because the departure

was based on uncharged criminal conduct, leading to the concern that prosecuting

authorities could manipulate the sentencing guidelines by bringing lesser charges than

permitted by the operative facts in order to use those facts as aggravating factors at

sentencing. See 749 N.W.2d at 357-58; see also Hicks, 864 N.W.2d at 161-62 (confirming

that a concern in Jackson was “the possibility that the sentencing guidelines could be


                                            6
manipulated by bringing lesser charges than the facts permitted in order to obtain a longer

sentence by withholding some facts related to greater charges to use as an aggravating

factor at sentencing”); Edwards, 774 N.W.2d at 606 (stating that the concern in Jackson

was that the prosecution was “manipulating” the sentencing guidelines).

       Jerry’s reliance on Jackson is misplaced. Minnesota Statutes section 244.10,

subdivision 5a(b) (2012), enacted after Jackson, provides that “[n]otwithstanding section

609.04 or 609.035, or other law to the contrary, when a court sentences an offender for a

felony conviction, the court may order an aggravated sentence beyond the range specified

in the sentencing guidelines grid based on any aggravating factor arising from the same

course of conduct.” (Emphasis added.) The statute applies to crimes committed on or after

August 1, 2009. 2009 Minn. Laws ch. 59, art. 5, § 8, at 367. Following the unambiguous

statutory language, the supreme court recently held that section 244.10, subdivision 5a(b),

“allows the district court to impose a sentence beyond the presumptive range based on any

aggravating factor, even if the aggravating factor is part of the same course of conduct as

another offense.” State v. Fleming, ___ N.W.2d ___, ___, No. A14-2187, slip op. at 1

(Minn. Aug. 17, 2016).1 Given the language of section 244.10, subdivision 5a(b), and the



1
  The supreme court previously recognized section 244.10, subdivision 5a(b)’s, impact on
Jackson. See Hicks, 864 N.W.2d at 162 n.7 (noting that the “[l]egislature has apparently
limited the impact of Jackson”); Tucker v. State, 799 N.W.2d 583, 593 n.1 (Minn. 2011)
(Anderson, J., concurring) (noting that the legislature “statutorily overruled the restriction
adopted in Jackson” when it promulgated section 244.10, subdivision 5a(b)). In Fleming,
however, the supreme court declined to address the statute’s legislative history and its
effect on sentencing caselaw because the statute’s plain language resolved the issue before
the court. See Fleming, slip op. at 10 n.6. As in Fleming, the statute’s plain language
controls here. See id.

                                              7
supreme court’s holding in Fleming, we conclude that the district court permissibly based

the upward departure for criminal sexual conduct on Jerry’s invasion of S.E.’s zone of

privacy. See id.

       We agree with the district court’s determinations that “[c]riminal sexual conduct

offenses do not always occur in the victim’s bedroom,” that Jerry’s conduct was

“egregious,” and that the zone-of-privacy aggravating factor provided a sufficient basis for

departure. See State v. Kindem, 338 N.W.2d 9, 17-18 (Minn. 1983) (stating that a

permissible basis for departure is when the criminal, “in committing a crime such as rape

or robbery, invades the zone of privacy that surrounds the victim’s home”); State v.

Titworth, 381 N.W.2d 510, 512 (Minn. App. 1986) (“Invasion of the victim’s zone of

privacy justifies a departure because it puts the victim in constant fear for her safety

whenever she is at home or in the surrounding area.”), review denied (Minn. Apr. 18, 1986).

In addition, although Jerry does not explicitly raise the issue, we conclude that the district

court’s finding of violation of the victim’s zone of privacy was factually supported by the

record. See Edwards, 774 N.W.2d at 601. Jerry broke into S.E.’s home in the early

morning hours, woke S.E. in her bedroom, and sexually assaulted her there.

       Because the district court permissibly considered the zone-of-privacy aggravating

factor and the record supports the imposition of an upward departure, we discern no abuse

of discretion. See id.




                                              8
B.    Number of Aggravating Factors Required to Impose an Upward Durational
      Departure and a Consecutive Sentence

      Jerry further contends that, even if the district court could consider the zone-of-

privacy aggravating factor, more than one aggravating factor is required to impose an

upward durational departure and a consecutive sentence. Jerry’s argument relies on a

comment to the sentencing guidelines:

                    Consecutive sentences are permissive for multiple
             current felony convictions even when the offenses involve one
             victim and a single course of conduct, but only when the
             presumptive disposition is commitment.              However,
             consecutive sentencing is not permissive for multiple current
             felony convictions involving one victim and a single course of
             conduct if the court is giving an upward durational departure
             on any of the current conviction offenses. The Commission
             believes that to give both an upward durational departure and
             a consecutive sentence when the circumstances involve one
             victim and a single course of conduct can result in
             disproportional sentencing unless additional aggravating
             factors exist to justify the consecutive sentence.

Minn. Sent. Guidelines cmt. 2.F.204 (2012).

      The advisory comment is not binding authority. Asfaha v. State, 665 N.W.2d 523,

526 (Minn. 2003). Furthermore, Jerry’s argument fails under existing caselaw and the text

of the sentencing guidelines. In State v. Daniels, we rejected an appellant’s reliance on

comment 2.F.204 (then listed as comment II.F.204) and caselaw to support the proposition

that the district court could not impose an upward departure and a consecutive sentence

without finding “severe aggravating circumstances.” 765 N.W.2d 645, 651-52 (Minn.

App. 2009), review denied (Minn. Aug. 11, 2009). We recognized that comment 2.F.204

and other caselaw cited by the appellant supported his argument but stated that “they do



                                              9
not represent the law under which [the] consecutive sentences were imposed.” Id. at 651.

We determined that because the imposition of consecutive sentences for kidnapping and

robbery convictions occurring in the same course of conduct as a conviction of criminal

sexual conduct committed with force or violence was not a departure under the sentencing

guidelines and Minn. Stat. § 609.035, subd. 6 (2006), the district court was not required to

find “severe aggravating circumstances” to impose both consecutive sentences and an

upward durational departure. Id. at 651-52; see also State v. Castillo-Alvarez, 820 N.W.2d

601, 624 (Minn. App. 2012) (stating that severe aggravating factors were not required to

impose an upward durational departure and consecutive sentence because imposing a

consecutive sentence “was not a departure under the guidelines”), aff’d, 836 N.W.2d 527

(Minn. 2013).

       The reasoning from Daniels applies here.               The sentencing guidelines

unambiguously provide that “[c]onsecutive sentences are permissive (may be given

without departure)” in certain situations. Minn. Sent. Guidelines 2.F.2.a (2012). One of

those situations is the imposition of consecutive sentences for first through fourth degree

criminal sexual conduct committed with force or violence and another crime committed in

the same course of conduct. Minn. Sent. Guidelines 2.F.2.a(2)(iii) (2012); see also Minn.

Stat. § 609.035, subd. 6 (2012) (providing that consecutive sentences “are not a departure”

when sentencing for criminal sexual conduct committed with force or violence and “any

other crime committed by the defendant as part of the same conduct”). The guidelines also

provide for permissive consecutive sentences for certain enumerated felonies, including

third-degree criminal sexual conduct and first-degree burglary. See Minn. Sent. Guidelines


                                            10
2.F.2.a(1)(ii), 6.A (2012). Because Jerry was convicted of third-degree criminal sexual

conduct committed with force or violence and first-degree burglary arising out of the same

course of conduct, the consecutive sentence was not a departure and the district court was

not required to cite more than one aggravating factor to impose an upward durational

departure and consecutive sentence. See Daniels, 765 N.W.2d at 651-52.

C.     Law of the Case

       Jerry also contends that the law-of-the-case doctrine prohibited the district court

from imposing an upward durational departure on remand because the district court

“overruled its prior legal conclusion that [Jerry’s] conduct was not significantly more

serious than the conduct typically involved in the crimes.”

       The law-of-the-case doctrine “applies to issues decided in earlier stages of the same

case.” State v. Miller, 849 N.W.2d 94, 98 (Minn. App. 2014) (quotation omitted). The

doctrine is a discretionary doctrine followed by appellate courts to promote finality of

appellate decisions, and the doctrine generally applies where an appellate court has decided

a legal issue and remanded; a district court does not generally apply the law-of-the-case

doctrine to its own prior decisions. Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994);

see also Kornberg v. Kornberg, 542 N.W.2d 379, 386 n.2 (Minn. 1996) (noting that the

law-of-the-case doctrine “is not normally applied by a district court to its own decisions”

(citing Loo, 520 N.W.2d at 744 n.1)). “The 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.” Miller, 849 N.W.2d at 98 (quotations omitted).




                                            11
       The law-of-the-case doctrine did not bar the district court from imposing an upward

durational departure on remand. In Jerry’s first appeal, we held that the district court erred

in the order of sentencing and remanded for “proceedings not inconsistent with this

opinion,” but we did not rule that the district court was prohibited from imposing an upward

durational departure on remand. Jerry, 864 N.W.2d at 369. Additionally, as the supreme

court has observed, the law-of-the-case doctrine is typically inapplicable to a district

court’s own decisions. See Loo, 520 N.W.2d at 744 n.1. And, even if it were applicable

here, our review of the record has not revealed an unequivocal ruling by the district court

that Jerry’s criminal conduct was no more serious than that involved in the typical

commission of third-degree criminal sexual conduct. Therefore, the law-of-the-case

doctrine did not preclude the district court from imposing an upward durational departure

on the third-degree criminal-sexual-conduct conviction. See Miller, 849 N.W.2d at 98.

D.     More Severe Sentence on Remand

       Jerry also contends that the upward durational departure violates the rule against

more severe sanctions following remand.

       In State v. Prudhomme, the supreme court held that a district court is prohibited

from exceeding the length of the original sentence for a particular crime when resentencing

on remand. 303 Minn. 376, 380, 228 N.W.2d 243, 246 (1975); accord State v. Delk, 781

N.W.2d 426, 429 (Minn. App. 2010), review denied (July 20, 2010). The rule is not based

on constitutional grounds but on “procedural fairness and principles of public policy.”

Prudhomme, 303 Minn. at 380, 228 N.W.2d at 246.




                                             12
       The district court originally imposed a 180-month sentence for criminal sexual

conduct. On remand, the district court imposed an upward durational departure, but the

total sentence for criminal sexual conduct was 96 months—84 months shorter than the

original sentence. The district court did not violate the rule articulated in Prudhomme. See

id.

       Affirmed.




                                            13
