This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Randall Spears,


Filed May 18, 1999

Reversed and remanded

Amundson, Judge

Scott County District Court

No. 95-10941

Mike Hatch, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Thomas J. Harbinson, Scott County Attorney, Ronald B. Hocevar, Criminal Division Head, Michael J. Groh, Assistant Scott County Attorney, 200 West Fourth Street, Shakopee, MN 55379 (for respondent)

John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.



Defendant challenges his sentence on remand, arguing that he cannot receive a more severe punishment on resentencing than he did in the initial sentence. We reverse.


Appellant Randall Spears was charged with six counts of first-degree criminal sexual conduct and two counts of kidnapping. He was found guilty on all charges by a jury and was sentenced to six concurrent life sentences, one each for the six criminal sexual conduct charges. The district court did not sentence Spears on the two kidnapping charges.

On appeal, Spears challenged his convictions and sentencing. We affirmed his prior convictions, but reversed the sentence, concluding that the district court erred in imposing multiple sentences for a single behavioral incident and for misconstruing Minn. Stat. § 609.346 (1996) to mandate a life sentence. We remanded for re-sentencing.

At the resentencing hearing, the court heard testimony regarding the risk factors that elevate the likelihood of re-offense and found that Spears's past behavior indicates a pattern of sexual assaults under Minn. Stat. § 609.1352, subd. 1(3) (1996). Additionally, the district court sentenced on the kidnapping charge at the resentencing hearing, which was not sentenced on in the initial sentencing hearing. It also found that severe aggravating circumstances justified an upward departure from the presumptive term of imprisonment of 30 to 40 years. The district court imposed a 40-year sentence for Count I, first degree criminal sexual conduct under Minn. Stat. § 609.108, subd. 2 (1998). The court also imposed a 40-year sentence for Count VII, kidnapping under Minn. Stat. § 09.25, subd. 2(2) (1998). The district court then ordered both 40-year sentences to be served consecutively. This appeal followed from the district court's second sentencing.


It is within the district court's discretion to upwardly departure from sentencing guidelines if "substantial and compelling" aggravating circumstances are present. State v. Davis, 540 N.W.2d 88, 91 (Minn. App. 1995), review denied (Minn. Jan. 31, 1996). If substantial and compelling circumstances are present, then the decision to depart from sentencing guidelines rests within the district court's discretion and will not be reversed absent a clear abuse of that discretion. Id. Spears contends that he is being impermissibly punished for exercising his right to appeal because he received a more severe punishment at the resentencing hearing than he received at the original sentencing hearing. He argues that the district court erred by both ordering a longer sentence and by impermissibly departing upward from the sentencing guidelines.

Spears argues that State v. Holmes, 281 Minn. 294, 161 N.W.2d 650 (1968), expressly prohibits a more severe sentence after an appeal. Whether Spears received a more severe sentence is arguable because his first sentence was six concurrent life sentences, and his second is two consecutive 40-year sentences. It is difficult to compare these two sentences to determine which is longer. Spears asserts, however, that the earliest he can be released is 53-1/3 years, or 640 months, and that had he been sentenced for six concurrent life sentences, he would have been eligible for release in 30 years.

The Supreme Court has held that the imposition of a more onerous sentence on retrial gives rise to a presumption of vindictiveness on the part of the district court, thereby violating the defendant's rights under the Due Process Clause of the Fourteenth Amendment. State v. Carver, 390 N.W.2d 431, 434 (Minn. App. 1986) (discussing North Carolina v. Pearce, 395 U.S. 711, 713-14, 89 S. Ct. 2072, 2074-75). While this is a close case because of the difficulty in comparing the sentences, the district court improperly expanded Spears's sentence at resentencing. Spears could be in jail 23 years longer on the resentence than he may have been under the first sentence.

Additionally, on rehearing, the district court sentenced Spears on the kidnapping charge, which was not sentenced on in the original sentencing hearing. We recognize that it is permissible to sentence on a count that was not sentenced on at the initial sentencing hearing. See State v. Coe, 411 N.W.2d 180 (Minn. 1987) (holding that a remand was appropriate to give the district court an opportunity to sentence on a burglary with assault claim that it did not sentence on initially).

Coe is distinguishable, however, because instead of reducing the sentence, Coe should have been remanded to give the district court an opportunity to depart from the presumptive sentence for one of the defendant's other offenses. In the instant case, the kidnapping count can be sentenced together with the criminal sexual conduct count. Therefore, the resentencing court had the opportunity to expand the sentence. Following a successful appeal, the consecutive 40-year sentences are an impermissible expansion of the original sentence because of the additional 23 years that Spears could be imprisoned.

We reverse and remand for sentencing in accord with this opinion.

Reversed and remanded.