Vernell Lamont Flowers, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0424

Vernell Lamont Flowers, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 22, 2021
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CR-18-15406

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Fr eeman, Hennepin County Attorney, Jacqueline Bailey, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Florey, Presiding Judge; Connolly, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
On appeal from the postconviction court’s denial of his petition for postconviction
relief, appellant Vernell Lamont Flowers argues that the postconviction court erred by
determining that (1) it lacked authority to review administrative decisions implementing a
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sentencing order and (2) ap pellant’s pattern-of-stalking conviction arose out of the same
set of circumstances as the dismissed charge of first -degree criminal sexual conduct,
requiring appellant to register as a predatory offender. We affirm.
FACTS
Appellant has a history of domestic violence against A.H., his former girlfriend and
mother to his two children. In June 2018, respondent State of Minnesota charged appellant
with eight felony counts, the relevant counts being count 1: First Degree Criminal Sexual
Conduct under Minn. Stat. § 609.342, subd. 1(e)(ii) (2018), and count 5: Pattern of Stalking
Conduct under Minn. Stat. § 609.749, subd. 5(a) (2018).
Count 1 alleged that on April 27, 2018, appellant injured A.H. using force or
coercion to sexually penetrate her . Criminal sexual conduct in the first degree is an
enumerated offense under Minn. Stat. § 243.166, subd. 1b(a)(1)(iii) (2018), requiring any
person convicted of the offense, or of another offense aris ing out of the same set of
circumstances, to register as a predatory offender. Count 5 alleged that between March 25,
2018, and April 27, 2018, appellan t engaged in a pattern of stalking conduct with A.H.,
and she felt terrorized or feared bodily harm.
On February 19, 2019, appellant pleaded guilty to count 5 and fifth-degree assault.
Shortly thereafter, the district court sentenced appellant to 51 months in prison on the
pattern-of-stalking conviction and a concurrent 24 months on the assault conviction. The
district court did not tell appellant that he must register as a predatory offender.
Registration was never discussed.
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Sometime after sentenc ing, while in custody of the Commissioner of Corrections
(the commissioner), the Bureau of Criminal Apprehension (BCA) and the Department of
Corrections (DOC) notified appellant that he had to register as a predatory offender due to
his criminal -sexual-conduct charge . Appellant then filed a petition for postconviction
relief on the grounds that he was not required to register because the criminal -sexual-
conduct charge did not arise out of the same set of circumstances as the stalking or assault
convictions. In addition, appellant argued that probable cause did not support the criminal-
sexual-conduct charge.
The postconviction court denied appellan t’s petition, finding sua sponte that (1) it
lacked authority to review the BCA’s and DOC’s administrative decisions on a motion to
correct a sentence; (2) appellant failed to establish a factual basis warranting postconviction
relief under Minn esota Statutes Chapter 590 and Minnesota Rule of Criminal Procedure
27.03; and (3) appellant is not ent itled to postconviction relief on the merits. This appeal
follows.
DECISION
Appellant argues that, under Minn. R. Crim. P. 27.03 subd. 9 , the postconviction
court had authority to review the BCA’s and DOC’s administrative decisions requiring him
to register as a predatory offender. We disagree.
We review a postconviction court’s denial of a postconviction petition for an abuse
of discretion. See Pearson v. State , 891 N.W.2d 590, 596 (Minn. 2017) . The
postconviction court abuses its discretion when it “exercise[s] its discretion in an arbitrary
or capricious manner, base[s] its ruling on an erroneous view of the law, or [makes] clearly
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erroneous factual findings.” Id. (quotation omitted). We review the postconviction court’s
factual findings for clear error and its legal conclusions de novo. See Swaney v. State, 882
N.W.2d 207, 214 (Minn. 2016).
Appellant argues that two Minnesota Supreme Court decisions , State v. Berry , 959
N.W.2d 184, 191 (Minn. 2021) (remanding to district court to vacate court -imposed
registration requirement) and State v. Lopez, 778 N.W.2d 700, 707 (Minn. 2010) (holding
district court erred by finding defendants were subject to predatory -offender registration)
demonstrate that imposing registration requirements is necessarily a judicial function .
Appellant conflates a district court’s authority under Minn. Stat. § 243.166, subd. 1b(a)(1),
for sentencing purposes and a postconviction court’s scope of authority under a Minn. R.
Crim. P. 27.03, subd. 9, motion to correct a sentence.
Implicit in cases like Berry and Lopez is the judiciary’s authority to review
registration requirements. However, that authority is not at issue here. Rather, the question
here is whether the postconviction court has authority, under rule 27.03, to review the
BCA’s and DOC’s administrative decision.
Rule 27.03, subd. 9, grants postconviction courts authority to correct a sentence. State
v. Schnagl, 859 N.W.2d 297, 301 (Minn. 2015). However, rule 27.03, subd. 9 , is only
properly invoked when the original sentence is being challenged. Id.; State v. Coles, 862
N.W.2d 477, 780 (Minn. 2015) (stating that “the plain language of Rule 27.03 is limited to
sentences, and the court’s authority under the rule is restricted to modifying a sentence”) ;
Reynolds v. State, 888 N.W.2d 125, 132-33 (Minn. 2016) (noting “Rule 27.03, subdivision
9, does not create a new cause of action or deny a defendant a defense on the merits,” the
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rule is merely procedural and is meant to “facilitate[] the performance of a judicial function:
sentencing”). A postconviction court’s authority under rule 27.03 is “separate and distinct”
from judicial authority to review separate administrative decisions . Schnagl, 859 N.W.2d
at 302. A motion under rule 27.03 is therefore “not the proper procedure to obtain judicial
review of the Commissioner’s administrative decision implementing the sentence imposed
by the district court.” Id. at 303.
In addition, appellant challenges the BCA’s and DOC’s administrative decision to
require him to register as a predatory offender but failed to name the commissioner as a
party. Under rule 27.03 subd. 9, the commissioner cannot intervene as a party.1 Id. at 302.
The commissioner cannot offer evidence or testimony in an evidentiary hearing , limiting
the record. Id. at 303. In short, a rule 27.03 motion is not the proper procedure because it
does not address the interests of both parties. Id. Following Schnagl, we agree with the
district court’s determination that it did not have the authority to review appellant’s motion
for postconviction relief. Id. Because we conclude that the postconviction court lacked
authority under rule 27.03 to revi ew the BCA ’s and DOC ’s administrative decisions
requiring him to register as a predatory offender, we do not consider appellant’s substantive
registration arguments.
Affirmed.

1 A decision on the merits without the commissioner as a party may be a non -binding
advisory opinion. Schnagl, 859 N.W.2d at 303 ( stating “a district court’s order directing
the Commissioner to correct the expiration date of a conditional -release term could very
well be a non-binding advisory opinion”).