IN COURT OF APPEALS
Kevin Donald Turck
Filed March 20, 2007
Reversed and remanded
Dakota County District Court
File No. K6-06-0191
Lori Swanson, Attorney General, 1800
James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)
John M. Stuart, State Public Defender, Philip Marron,
Assistant Public Defender,
Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Ross, Judge.
The mandatory-minimum sentencing provision for a repeat offender who commits a third-degree controlled-substance crime under Minn. Stat. §§ 152.023, subd. 3(b) (2004), and .026 (Supp. 2005), prohibits a district court from staying execution of the sentence.
On appeal from the district court’s decision to stay execution of respondent’s sentence and place him on probation, appellant State of Minnesota argues that the district court erred by failing to impose the mandatory-minimum sentence required under Minn. Stat. § 152.023, subd. 3(b) (2004). Because we conclude that the district court erred, we reverse and remand for resentencing.
Respondent Kevin Donald Turck pleaded guilty to one count of third-degree controlled-substance crime in violation of Minn. Stat. § 152.023, subds. 2(1), 3(b) (2004), for possession of 4.58 grams of methamphetamine. The offense is a severity-level six offense, and respondent has seven criminal-history points. Appellant asked for the presumptive sentence. The district court sentenced respondent to the 71-month presumptive sentence but stayed execution for 30 years and placed respondent on probation with the conditions that respondent successfully complete the Teen Challenge 13-month chemical-dependency-treatment program, abstain from all illegal drugs, obtain a psychological evaluation, and submit a DNA sample. The district court based its downward departure on the interests of justice and respondent’s amenability to treatment. This appeal follows.
Must a person convicted under Minn. Stat. §§ 152.023, subd. 3(b) (2004), and .026 (Supp. 2005), who has a previous qualifying controlled-substance conviction, serve a mandatory-minimum sentence?
Minn. Stat. §§ 152.023, subd. 3(b) (2004), .026 (Supp. 2005), require a
mandatory-minimum term of incarceration is a question of statutory construction,
which we review de novo. State v.
Bluhm, 676 N.W.2d 649, 651 (
presume that crimes do not have minimum sentences absent certainty that the
legislature intended to authorize a minimum sentence. State v. Ronquist, 600 N.W.2d 444, 446
offenses are one exception to the legislature’s avoidance of mandatory-minimum
conviction of a third-degree controlled-substance crime has a maximum sentence
of 20 years. Minn. Stat. § 152.023,
subd. 3(a) (2004) (stating that, “[a] person convicted under subdivision 1 or 2
may be sentenced to imprisonment of not more than 20 years” (emphasis
added)). But “[i]f the conviction is a subsequent
controlled-substance conviction, a person convicted under subdivision 1 or 2 shall
be committed to the commissioner of corrections for not less than two years
nor more than 30 years.”
If a person is convicted under section 152.021, 152.022, 152.023, or 152.0262, and the Sentencing Guidelines grid calls for a presumptive prison sentence for the offense, the court may stay imposition or execution of the sentence only as provided in this section. The sentence may be stayed based on amenability to probation only if the offender presents adequate evidence to the court that the offender has been accepted by, and can respond to, a treatment program that has been approved by the commissioner of human services. The court may impose a sentence that is a mitigated dispositional departure on any other ground only if the court includes as a condition of probation incarceration in a local jail or workhouse.
considering these statutes, we give effect to the legislature’s intent.
The legislature enacted section 152.152 to be the sole method of staying execution for controlled-substance crimes. But section 152.026 makes an exception for mandatory sentences that may not be reduced by probation. Similarly, conviction of a controlled-substance crime carries a permissive statutory penalty for first-time offenders but a mandatory-minimum sentence for repeat offenders. Minn. Stat. § 152.023, subds. 3(a), (b). In giving effect to conflicting statutes, “the special provision shall prevail and shall be construed as an exception to the general provision.” Minn. Stat. § 645.26, subd. 1 (2004). Therefore, the mandatory sentences for repeat controlled-substance offenders in sections 152.026 and 152.023, subdivision 3(b), must prevail over the provision for departures generally in section 152.152.
To ensure the effectiveness of all three statutory sections, we conclude that section 152.152 applies in two situations: first-time controlled-substance offenders and repeat offenders who have served their term of imprisonment. Sections 152.023 and 152.026 require repeat offenders to serve a minimum prison sentence. Because respondent’s sentence is for a subsequent controlled-substance offense, he must serve a term of imprisonment of not less than two years. We therefore remand for resentencing pursuant to these mandatory-minimum statutory provisions.
Reversed and remanded.
 Minn. Stat. § 152.025, subd. 3(b) (2002), states that “[i]f the conviction is a subsequent controlled substance conviction, a person convicted under subdivision 1 or 2 shall be committed to the commissioner of corrections or to a local correctional authority for not less than six months nor more than ten years.” (Emphasis added.)