IN COURT OF APPEALS
State of Minnesota,
Steven Leo Rannow,
Reversed and remanded
McLeod County District Court
File No. K7-04-787
John M. Stuart, State Public Defender, Sean M. McGuire, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael K. Junge, McLeod County Attorney, Amy E. Olson, Assistant County Attorney, 830 East Eleventh Street, Suite 112, Glencoe, MN 55336 (for respondent)
Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and
Multiple current felony convictions for crimes against persons may be sentenced consecutively to each other, without constituting a departure from the Minnesota Sentencing Guidelines, only when the presumptive disposition is commitment to the Commissioner of Corrections.
Appellant challenges the consecutive sentences imposed on five convictions of violation of a restraining order, arguing that the district court improperly departed from the sentencing guidelines without stating a reason for the departure. Appellant also argues that imposition of consecutive sentencing without a jury determination of the existence of aggravating factors violated the Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We reverse the sentence and remand for imposition of the presumptive guidelines sentence.
After making repeated telephone calls to a former co-worker at her place of employment, appellant Steven Rannow was charged with ten counts of felony violation of a restraining order, Minn. Stat. § 609.748, subd. 6(d)(1) (2002), and one count of engaging in a pattern of harassment, Minn. Stat. § 609.749, subd. 5(a) (2002). Rannow subsequently entered an Alford plea to five of the ten counts of violation of a restraining order. In exchange for Rannow’s guilty plea, the state agreed to dismiss the remaining charges. The parties also agreed on an aggregate sentence of imprisonment of 60 months and five days.
the sentencing hearing, the district court honored the terms of the plea
agreement and imposed an aggregate sentence of imprisonment of 60 months and
five days. In doing so, the district
court imposed an executed sentence of one year and one day on the first count
of violation of a restraining order, rather than the guidelines sentence of 15
I. Did the district court abuse its discretion in imposing consecutive sentences?
II. Does appellant’s sentence violate the Sixth Amendment right to a jury trial under Blakely v. Washington?
argues that the district court abused its discretion by imposing consecutive
sentences on each of his five convictions of violation of a restraining
order. We will not reverse a district court’s decision to
impose consecutive sentences absent a clear abuse of discretion. Neal v. State, 658 N.W.2d 536, 548 (
a defendant is convicted of multiple current offenses, it is presumed that sentences
for these offenses will be served concurrently.
State v. Crocker, 409 N.W.2d 840, 845 (
Although the sentencing guidelines do not define what constitutes a “crime against a person,” caselaw makes clear that such a determination depends on the nature of the underlying conduct rather than the nomenclature used to classify the crime. See State v. Myers, 627 N.W.2d 58, 62-63 (Minn. 2001)(holding that consecutive sentence for obstructing legal process is crime against person if underlying conduct in committing crime posed special danger to human life); State v. Notch, 446 N.W.2d 383, 385 (Minn. 1989) (holding that burglary may qualify as offense against person if “as committed” it is in fact a crime against a person).
Rannow pleaded guilty to five felony violations of a restraining order for repeatedly calling a former co-worker. Rannow’s harassment of this individual extended over 15 years, but the five current felony convictions were based on conduct that occurred during a 20-day period in 2004. Rannow’s conduct posed a threat to another person, and, therefore, each restraining-order violation constitutes a crime against a person.
concluded that Rannow was convicted of multiple current felonies committed against
a person, consecutive sentencing is permissive under the sentencing guidelines
if the presumptive disposition for the offenses is commitment to the commissioner
the presumptive disposition for only the fourth and fifth counts is commitment
to the commissioner of corrections, consecutive sentencing for all five
offenses is not permissive under the sentencing guidelines. Accordingly, the greatest aggregate sentence
duration that the district court could impose without departing from the sentencing
guidelines is 36 months and one day—24 months on count four to run concurrently
with the sentences on counts one through three and consecutively with one year
and one day on count five. See
The state argues that, because the sentence imposed was consistent with the plea agreement, the consecutive sentencing did not constitute an upward departure from the sentencing guidelines. Permissive consecutive sentencing, however, is available only under the limited circumstances listed in Minn. Sent. Guidelines II.F. The state’s argument fails to consider the plain language of the sentencing guidelines, which states: “The use of consecutive sentences in any other case constitutes a departure from the guidelines[.]” Thus, the imposition of consecutive sentences for reasons other than those set forth in Minn. Sent. Guidelines II.F. constitutes a departure from the sentencing guidelines and requires the existence of substantial and compelling reasons identified on the record by the district court, notwithstanding the parties’ plea agreement for consecutive sentencing. See State v. Misquadace, 644 N.W.2d 65, 71 (2002) (holding that “negotiated plea agreements that include a sentencing departure are justified under the guidelines in cases where substantial and compelling circumstances exist[,]” but a “plea agreement standing alone . . . does not create such circumstances in its own right”); see also Minn. Stat. § 244.09, subd. 5(2) (2004) (rejecting view that sentencing guidelines standards are a “right” that can be waived). The state’s contention that Rannow waived application of the sentencing guidelines by entering into a plea agreement as to his sentence is without merit.
concluded that the district court departed from the sentencing guidelines, we
next consider whether the district court erred in doing so. Substantial and compelling circumstances must
exist to justify a departure from the sentencing guidelines. Rairdon v. State, 557 N.W.2d 318, 326
The district court did not provide orally or in writing any reason for the sentencing departure. Rather, the district court sentenced Rannow in accordance with the terms of the plea agreement, stating:
Then, as and for sentence, the Court is sentencing Mr. Rannow on all five counts and I understand that constitutes a departure on Count 1, but on Count 1 the Court is sentencing Mr. Rannow to one year and one day in prison. He’s to be committed to the Department of Corrections. That commitment will take place today. On Counts 2, 3, 4 and 5 the Court is imposing sentences of one year and one day on each count; all four counts, 2, 3, 4, and 5, to run consecutive to the sentence imposed on Count 1. So the total prison sentence is five years and five days.
plea agreement cannot in itself form the basis for a sentencing departure. Misquadace,
644 N.W.2d at 72;
turn now to the proper remedy for the district court’s failure to state any reasons
for the sentencing departure. In Geller, the Minnesota Supreme Court held
that “absent a statement of the reasons for the sentencing departure placed on
the record at the time of sentencing, no departure will be allowed.” 665 N.W.2d at 517. Geller makes
clear that a remand to the district court for another opportunity to state the
reasons for departure is not the proper remedy.
note, however, that Misquadace and
its progeny provide an alternative remedy for a departure based solely on the
terms of the plea agreement, namely a remand to the district court for a
determination of whether proper departure factors are present. 644 N.W.2d at 72. In State
v. Lewis, decided one year after Misquadace,the Minnesota Supreme Court stated that,
in addition to considering departure factors on remand, the district court also
may consider the effect that changes in the sentence have on the entire plea
agreement. 656 N.W.2d 535, 539 (
note that, because the district court departed from the sentencing guidelines in
accordance with a plea agreement, the facts here are more analogous to Misquadace and Lewis than to Geller. Nevertheless, Geller’s mandate is clear: “[A]bsent a statement of the reasons for
the sentencing departure placed on the record at the time of sentencing, no
departure will be allowed.” 665 N.W.2d
at 517. Given the breadth of this most recent
holding, we follow the rule announced in Geller
and remand for imposition of a sentence that does not constitute a departure
from the sentencing guidelines. On
remand, the greatest sentence duration that the district court can impose is an
aggregate sentence of 36 months and one day, which reflects presumptive
concurrent sentences on the first three counts of conviction and permissive
consecutive sentences on the last two counts of conviction.
also argues that the district court’s imposition of consecutive sentences violated
the Sixth Amendment right to have a jury determine the facts supporting the
enhancement of his sentence under Blakely
v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Blakely’s
application to consecutive sentencing raises a constitutional issue, which
we review de novo. State v. Senske, 692 N.W.2d 743, 746-49 (
In Blakely, the United States Supreme Court refined the rule announced
in Apprendi v.
Rannow argues that the district court’s imposition of nonpermissive consecutive sentences—sentences that constitute an upward departure from the guidelines—violates the Sixth Amendment right to have a jury determine the facts supporting an enhancement of his sentence. Minnesota caselaw has not addressed whether Blakely applies to consecutive sentences that are departures from the sentencing guidelines. But because we are remanding to the district court for imposition of a guidelines sentence, which precludes a departure from the sentencing guidelines, we need not address this issue.
consecutive sentences may be imposed on the last two counts of violation of a
restraining order, however, we briefly address Blakely’s applicability to permissive consecutive sentences. We recently held that the rule announced in Blakely does not apply to permissiveconsecutive sentences imposed for
separate crimes. Senske, 692 N.W.2d at 749.
The Senske court reasoned that
the holdings of Blakely and Apprendi are limited to the enhancement
of a sentence for a single crime and do not extend to consecutive sentencing,
which determines the relationship between two or more sentences separately
imposed for different offenses. 692
N.W.2d at 747-48; see also O’Meara v.
State, 679 N.W.2d 334, 341 (
Based on our recent decision in Senske, we conclude that the district court may impose permissive consecutive sentences on the last two counts of violation of a restraining order without violating the Sixth Amendment right articulated in Blakely.
The district court departed from the sentencing guidelines when it imposed consecutive sentences. Because the district court did not state a reason for the sentencing departure, we reverse the sentence and remand for imposition of the presumptive guidelines sentence.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 With an Alford plea,
a defendant maintains his or her innocence while conceding that there is a
substantial likelihood that the evidence would support a conviction by a jury
of the crime charged. State v. Goulette, 258 N.W.2d 758, 760 (
 Consecutive sentencing is permissive under these circumstances even when the offenses involve a single victim. Minn. Sent. Guidelines cmt. II.F.04.
 At the time of his first offense, Rannow had a criminal-history score of one. Rannow’s criminal-history score increased by one point for each subsequent felony offense, causing the presumptive sentence duration to increase accordingly. Minn. Sent. Guidelines V.II.B.1.; State v. Gould, 562 N.W.2d 518, 519-20 (Minn. 1997).