This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). 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

. U N P U B L I S H E D O P I N I O N SCHELLHAS , Judge Appellant challenges his sentences for first

- degree criminal sexual conduct and kidnapping

. We affirm.2 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. an d 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 tha t 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 thoug h 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 stoo d 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.3 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 p ulled 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 s entence 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 stat ements 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 co urt 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 b ased on judicial4 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 consecu tive 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 fil ed 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 (Min n. 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 cri minal 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 attack5 on his sentence because the sentence was f inal 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 prov ided in paragraph (b) or (c).”).

. . .

. . . . The district court imposed a 360

- month sentence on the criminal

- sexual

- conduct conviction a nd 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 s entence 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 , sp ecifying that his motion was “not a6

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 sentenc e for kidnapping, or (3) a sentence longer than the original sentence. T he district court denied Spears any relief. This appeal follows. D E C I S I O N In denying Spears’s motion, t he district court stated that “[t]he Court of Appeals
did not find it improper that the Court imposed a consecutive s entence 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 lack ed 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. H e 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 P rocedure and Minnesota Statutes. ” Id

.7 Rule 27.03, subdivision 9 states that the district court “m ay at any time correct a sentence not authorized by law.” S ection 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 c ourt 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.
S pears and respondent State of M innesota disagree about the proper treatment of Spears’s motion

. Spears argues that his mo tion 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 petitio n 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 fo r 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 postconvict ion act. Washington v. State , 845 N.W.2d 205, 21 0 (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, subdivision8

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 t he 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 distric t court’s 360

- month s entence 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 cit es State v. Geller , 665 N.W.2d 51 4, 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 relian ce 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”).9

Even if we deeme d Spears’s c hallenge 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 dep arture 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 decide s 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 lack ed 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) , t his argument also is barred by the doctrine of law of the case

. Similarly, Spears’s argument that the district court lack ed authority to impose con secutive sentences for first

- degree criminal sexual conduct and kidnapping i s barred by the doctrine of law of the case bec a u s e 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.