This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-1504

Delenor Kelley, Jr., petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed February 25, 1997

Affirmed

Klaphake, Judge

Hennepin County District Court

File No. 92-0166

Hubert Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Michael Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Delenor Kelley, Jr., P. O. Box 55, Stillwater, MN 55082 (Appellant Pro Se)

Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

This appeal is from an order denying appellant Delenor Kelley's petition for postconviction relief. Because we conclude that Kelley's sentence was not barred by double jeopardy and did not reflect prosecutorial vindictiveness, we affirm.

D E C I S I O N

Kelley was convicted in 1992 of first- and third-degree criminal sexual conduct, but the supreme court reversed the first-degree conviction because the trial court had communicated with the jury without notifying counsel. State v. Kelley, 517 N.W.2d 905 (Minn. 1994). The court specified that Kelley was seeking a new trial only on the first-degree charge and that the verdict on the third-degree charge, which had been reached before the improper communication, was not at issue. Id. at 908 n.3. On remand, the state chose not to retry Kelley on the first-degree charge, and he was sentenced on the third-degree conviction. On direct appeal of that sentence, Kelley challenged both the court's statutory authority to sentence him after reversal of the first-degree conviction and the length of the sentence imposed.[1] This court affirmed the sentence. State v. Kelley, No. C4-94-2411 (Minn. App. July 18, 1995), review denied (Minn. Sept. 28, 1995).

Kelley argues that reversal of his first-degree criminal sexual conduct conviction bars sentencing on the third-degree conviction. A defendant who wins a reversal of his conviction on appeal may be retried for the same offense without violating the prohibition against double jeopardy. See Green v. United States, 355 U.S. 184, 189, 78 S. Ct. 221, 224 (1957). Because Kelley could have been retried and resentenced for the greater offense of first-degree criminal sexual conduct, he certainly can be resentenced on the lesser third-degree conviction, for which sentence had not been imposed. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984) (if adjudicated conviction later vacated for reasons not relevant to remaining unadjudicated convictions, remaining unadjudicated conviction can then be formally adjudicated and sentence imposed).

Kelley argues that his attorney on remand was ineffective for failing to argue that double jeopardy barred sentencing on the third-degree conviction. But Kelley's attorney challenged the sentence as barred by Minn. Stat. § 609.04, which provides a defendant with protections similar to, but broader than, those provided by constitutional double jeopardy. See State v. Jackson, 363 N.W. 2d 758, 760 (Minn. 1985). Kelley's attorney raised the best argument available to him and was not ineffective.

Kelley argues that his sentence reflects prosecutorial vindictiveness. See Alabama v. Smith, 490 U.S. 794, 799, 109 S. Ct. 2201, 2204-05 (1989) (defendant may be given more severe sentence following successful appeal unless proof exists of actual vindictiveness on part of sentencing authority). Kelley did not receive a more severe sentence following his successful appeal; he only received a greater degree of departure. On direct appeal, this court rejected Kelley's claim that his 136-month sentence denied him the benefit of his appeal, in which he obtained reversal of a conviction for which he had received a 146-month sentence. The record establishes that the sentence was properly supported by aggravating factors cited by the trial court; nothing suggests that it was the result of vindictiveness.

Finally, Kelley argues that on remand the trial court should have recused itself. But he merely cites the court's adverse rulings to support his claim of prejudice. Adverse rulings in themselves are insufficient to show prejudice. See, e.g., State v. Kramer, 441 N.W.2d 502, 505 (Minn. App. 1989), review denied (Minn. Aug. 9, 1989).

Affirmed.

[ ]1The state argues that Kelley's claims on this postconviction appeal are barred because they were raised in his direct appeal or known at the time of that appeal. See State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Although Kelley's postconviction claims are similar to those raised in the direct appeal, the postconviction court reached the merits of his petition and we choose to do the same.