IN COURT OF APPEALS
State of Minnesota,
Filed May 10, 2007
Affirmed in part, reversed in part, and remanded
Dakota County District Court
File No. K2-04-3360
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, 1560 Highway 55, Hastings, MN 55033 (for respondent)
Lisa Lodin Peralta, Joseph S. Frieberg,
Chartered, Suite 320 Fifth Street Towers,
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Collins, Judge.
S Y L L A B U S
1. Under the Minnesota Sentencing Guidelines, the district court may impose more than one permissive consecutive sentence when a defendant’s multiple current offenses meet the criteria for permissive consecutive sentences and the defendant also has a qualifying unexpired prior felony sentence.
2. When a part of a sentence for multiple current convictions is reversed because the sentencing court did not relate reasons to one particular offense to justify an upward durational departure, the district court on remand, consistent with State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003), is limited to reasons stated on the record at the time of the original sentencing to justify any departure for that part of the sentence.
O P I N I O N
Appealing his sentence for multiple current convictions, Appellant Rashade Coleman argues that (1) the district court erred by imposing both a permissive consecutive sentence for his burglary conviction (consecutive to an unexpired prior felony sentence) and a permissive consecutive sentence for criminal sexual conduct (consecutive to the burglary); (2) the court erred by failing to disregard his criminal-history score before determining the duration of the burglary sentence imposed consecutive to his prior unexpired sentence or failing to state reasons specific to the burglary crime justifying a departure; and (3) he was impermissibly sentenced under Minn. Stat. § 609.108 (2002) because it unconstitutionally permitted a judicial finding that a defendant is a patterned sex offender.
Because Minn. Stat. § 609.108 (2002) is not facially unconstitutional, and because the district court did not err by imposing two permissive consecutive sentences, we affirm Coleman’s criminal-sexual-conduct sentence. But because Coleman’s sentence on the burglary conviction constitutes an upward durational departure for which the district court did not relate departure reasons particular to that offense, if indeed the court intended the departure, we reverse and remand for resentencing.
In October 2002, Coleman was
adjudicated delinquent in
A year later, while burglarizing college
dormatory rooms in
In June 2004, before being arrested
for the October 2003
Following adult certification in
On November 14, 2005, Coleman
received a 68-month sentence for the burglary conviction, to be served
consecutively to the
I. Did the district court abuse its discretion by imposing more than one permissive consecutive sentence?
II. Did the district court abuse its discretion by departing upwardly from the presumptive guidelines sentence for the burglary conviction without relating reasons in writing or on the record to this particular offense?
III. On resentencing for the burglary conviction, is the district court limited to imposing a sentence within the presumptive guidelines range?
IV. Was Coleman sentenced under an unconstitutional statute that permitted an upward durational departure based on a judge’s finding of enhancement factors?
Coleman argues that the district
court erred when it imposed more than one permissive consecutive sentence, contending
that the plain language of the guidelines only permits one. “Statutory construction and interpretation of
the sentencing guidelines are subject to de novo review by [the appellate]
court.” State v. Holmes, 719 N.W.2d 904, 907 (
the district court imposed two permissive consecutive sentences. The district court first ordered that
Coleman’s burglary conviction be sentenced consecutively to an unexpired prior
sentence, that is, the burglary and criminal-sexual-conduct sentences imposed in
Next, the district court imposed a
permissive consecutive sentence for Coleman’s criminal-sexual-conduct
conviction, justified by the fact that the sentence was for one of multiple current
qualifying convictions. The Minnesota
Sentencing Guidelines state that “[m]ultiple current felony convictions for
crimes on the list of offenses eligible for permissive consecutive sentences
found in Section VI may be sentenced consecutively to each other.”
The district court thus imposed two discrete
permissive consecutive sentences in sentencing for multiple current
convictions, when Coleman had a qualifying unexpired prior sentence. We are unwilling to rule that the court erred
in applying more than one of the instances in which the guidelines ordain consecutive
sentences as permissive.
When, as here, consecutive sentences are permissive under more than one of seven enumerated situations, id., we hold that the purpose of the sentencing guidelines is fulfilled if the offender is sentenced more severely because of having multiple current convictions as well as a prior unexpired felony sentence. Coleman’s assertion that the guidelines permit only one type of permissive consecutive sentence at one time is unpersuasive, and the district court did not abuse its discretion by sentencing Coleman consecutively for both the burglary and criminal sexual conduct convictions.
Coleman next argues that the
district court erred when it factored his criminal-history points in determining
the 68-month duration of the burglary sentence imposed consecutively to his unexpired
The court sentenced Coleman as follows:
the burglary in the first degree count I’m committing Mr. Coleman to the
Commissioner of Corrections to serve 68 months consecutive to his
The presumptive sentence for first-degree burglary
with assault, a severity-level VIII offense, with a criminal-history score of
zero is 48 months, the non-departure range being 41-57 months.
Coleman also alleges that the district court
erred in departing durationally on the kidnapping sentence by staying execution
of the presumptive 21-month sentence for 20 years. However, we find no error, because the maximum
penalty for kidnapping under Minn. Stat. § 609.25, subd. 2(1) (2004), is
imprisonment for not more than 20 years.
Under Minn. Stat. § 609.135, subd. 2 (2004), a stay of execution for an
offense may be for the maximum period for which the sentence of imprisonment
may be imposed, and there was no departure in staying execution of Coleman’s
sentence for 20 years. The guidelines provide
presumptive durations for prison terms. See
Coleman argues that
no sentence greater than the presumptive guidelines sentence may be imposed if
the sentence for his burglary conviction is reversed, because the district
court failed to give sufficient justification on the record at the time of
sentencing for the departure as required by the sentencing guidelines. The guidelines provide that when departing
from the presumptive sentence, a judge must provide written reasons or findings
on the record that specify the substantial and compelling nature of the
With regard to why I’m imposing these sentences, I believe that the victim was particularly vulnerable, and that she was assaulted in the bedroom of her own home, and that her young son was in bed with her. I believe that she was put in a position of being unable to fight for her own safety out of fear that her son would also be hurt.
I believe that the conduct was particularly cruel in that it occurred within the victim’s zone of privacy, her own home, her own bedroom, her own bed, and also that her little son was present and was clinging to her and crying while she was being assaulted.
. . . I believe that the crimes committed have caused psychological harm to this victim, and that harm will continue for the foreseeable future, and that she has experienced and is experiencing depression, sleeplessness, and is currently involved in rape survivors counseling. And I encourage her to continue to do that.
Multiple acts of penetration were committed by Mr. Coleman, both oral and vaginal. The defendant has admitted at a previous hearing that he knows he meets the criteria of a pattern sex offender. The defendant admitted at a prior hearing and again today that he needs sex offender treatment. The defendant has previously admitted that without sex offender treatment he’s at high risk to reoffend.
Dr. Marston’s evaluation, Dr. Reitman’s evaluation, and the presentence investigation all state that Mr. Coleman is at high risk to reoffend even if he successfully completes sex offender treatment. I believe that the criminal activity here was motivated by sexual impulses and were part of a pattern of predatory behavior with criminal sexual conduct as its goal.
These reasons focus
primarily on Coleman’s criminal sexual behavior, and while the sentencing court
may have intended to cross-apply some of the same reasons in support of
departure on the burglary sentence, the court did not expressly do so. Separate reasons for departure are required
for each offense on which a departure is imposed, and those reasons must relate
to the particular offense on which that departure is imposed. State
Concerned with the lack of compliance with the guidelines requirement that reasons for departure must be given on the record, in Williams v. State the supreme court provided rules for reviewing courts to follow when enforcing the requirement that sentencing courts state their reasons justifying a departure from the presumptive sentence:
1. If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.
3. If the reasons given justify the departure, the departure will be allowed.
4. If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.
5. If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.
361 N.W.2d 840, 844
As we have already observed, the
court’s narrative in support of the sentences in this case focuses on the
sexual-conduct crime and amply justifies the durational departure for that
conviction. Moreover, considering the
nature and extent of his acts, we cannot say that the aggregate duration of Coleman’s
sentence is necessarily unjust or unfairly exaggerates the criminality of his
Coleman also challenges the
constitutionality of his sentencing under Minn. Stat. § 609.108 (2002), governing
patterned and predatory sex offenders, contending that the statute is
unconstitutional under Blakely v.
Coleman pleaded guilty to third-degree criminal sexual conduct and waived his right to a jury trial on all issues, including whether he was a patterned sex offender, but now argues that he was sentenced under a facially unconstitutional statute. Coleman acknowledges that he waived his right to have a jury determine factors related to an increased sentence, but urges this court to find that section 609.108 is facially “unconstitutional because it permitted an upward durational departure based on a judge’s finding of enhancement factors.” We disagree.
State v. Boehl, 726 N.W.2d 831, 839-41
(Minn. App. 2007), we painstakingly discussed the application of the
legislative amendments to enhancement statutes, prior to their enactment date on
August 1, 2005, so that a district court may comply with the Sixth Amendment
right to a jury determination on aggravating factors, specifically the patterned-sex-offender
enhancement under Minn. Stat. § 609.1352, subd. 1 (1996) (subsequently codified
at Minn. Stat. §§ 609.108, subd. 1 (1998), .3455, subd. 3a (2006)). We did not find that this statute is facially
unconstitutional, but noted, consistent with the decisions in State v. Chauvin, 723 N.W.2d 20 (
the legislature has remained silent regarding how a district court may fulfill this statutory mandate in a constitutional manner because it has not provided guidance as to the proper sentencing procedure for patterned sex offenders who committed their offenses before August 1, 2005, but are sentenced after the Blakely decision. Absent such guidance, empaneling a resentencing jury to effectuate the legislature’s intent falls within the judiciary’s unique functions while safeguarding [the appellant’s] Sixth Amendment rights.
Boehl, 726 N.W.2d at 839.
Since the enhancement statute is not
facially unconstitutional, and Coleman had the opportunity to empanel a sentencing
jury, Coleman’s Sixth Amendment rights were safeguarded, and the district court
proceeded correctly by imposing an enhanced sentence based only on aggravating
factors that Coleman admitted. See United States v. Booker, 543
Here, the court used a number of aggravating factors that Coleman conceded were true to justify an upward departure; only one of which is his admission to being a patterned sex-offender. Coleman admitted that his actions were “motivated by sexual impulses and were part of a pattern of predatory behavior with criminal sexual conduct as its goal.” He also conceded that he committed the crime with particular cruelty because it was within the victim’s zone of privacy and her child was present, and that the victim was particularly vulnerable for similar reasons. There was no issue of whether these findings should have been made by a sentencing jury, as Coleman specifically waived a jury during his guilty plea, and the court did not rely on any information outside of Coleman’s prior convictions, the information provided in his plea, and his admissions during the plea hearing to justify the departure. Though we reverse and remand for resentencing on the burglary conviction, we hold the district court did not err by sentencing Coleman as a patterned sex offender, when he waived his right to a sentencing jury and admitted the requisite aggravating factors.
D E C I S I O N
Under the Minnesota Sentencing Guidelines, the district court may impose more than one permissive consecutive sentence when a defendant’s multiple current offenses meet the criteria for permissive consecutive sentences, and, therefore, the district court did not err by imposing two separate permissive consecutive sentences. However, because we cannot conclusively determine whether the sentencing court intended to impose an upward durational departure for Coleman’s burglary conviction, or merely erred in not disregarding his criminal-history score, we reverse and remand that part of the sentence. Upon resentencing, the district court may either express the duration of the burglary sentence within the non-departure range of 41-57 months, or up to 68 months supported by departure reasons stated on the record at the time of Coleman’s original sentencing and applicable to the burglary.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.