This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-99-1400

State of Minnesota,
Respondent,

vs.

Mark Norman Lidke,
Appellant.

Filed January 11, 2000
Affirmed as Modified in Part, Reversed in Part, and Remanded
Davies, Judge

Dakota County District Court
File No. K599226

 

Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103-2106; and

James C. Backstrom, Dakota County Attorney, Mary J. Theisen, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033; and

Thomas J. Harbinson, Scott County Attorney, Jennifer K. Tichey, Assistant County Attorney, Scott County Government Center, 200 Fourth Ave. W., Shakopee, MN 55379 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N

DAVIES, Judge

Appellant Mark Norman Lidke was sentenced for theft applying the "career-offender statute." He challenges his sentence on the ground that he does not have the five "prior felony convictions" required by that statute. We agree, reverse, and remand for resentencing.

Appellant was also sentenced to a consecutive, 15-month term when probation on a prior conviction was revoked. Appellant challenges making the sentence consecutive, an upward departure, because the trial court made no findings supporting departure. We agree and modify to a concurrent sentence.

FACTS

Appellant has a lengthy felony record for property crimes, including three 1993 convictions (receiving stolen property), one 1995 conviction (receiving stolen property), one 1996 conviction (theft), and one 1998 conviction (theft by check).

On March 15, 1999, appellant pleaded guilty to two additional felony offenses: theft by fraud and theft by false representation. At the sentencing hearing, the district court found that appellant was a "career offender" under Minn. Stat.  609.1095, subd. 4, and imposed concurrent sentences of 76.5 months for theft by fraud and 34.5 months for theft by false representation. These sentences represent a 50% upward departure from the presumptive sentences (51 months and 23 months, respectively).

At the time of sentencing, appellant was on probation for two 1993 convictions. The district court discharged appellant from probation on one of those convictions and revoked probation and sentenced him to a 15-month sentence on the other. This sentence was to run consecutive to the theft sentences. The district court gave no explanation for making this sentence consecutive and did not file a departure report. The state concedes that the consecutive sentence departs from the guidelines.

D E C I S I O N

I. Career-Offender Statute

Minn. Stat.  609.1095, subd. 4 (the "career-offender statute"), permits the sentencing court to depart from the presumptive guidelines sentence

if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.

(Emphasis added.) Subdivision 1 of this section provides the following definition:

As used in this section * * * .

"Prior conviction" means a conviction that occurred before the offender committed the next felony resulting in a conviction and before the offense for which the offender is being sentenced under this section.

Minn. Stat.  609.1095, subd. 1 (1998) (emphasis added). Appellant argues that this definition of "prior conviction" should logically be applied to the term "prior felony conviction," the term used in subdivision 4. If it is so applied, five sequential felony offenses and convictions are required (i.e., offense/conviction, offense/conviction, offense/conviction, etc.). And if so applied, appellant has only four prior felony convictions because, although he committed three felony offenses in 1992, he was not convicted on any of them until 1993.

Whether the statutory definition of "prior conviction" also applies to the term "prior felony conviction" involves statutory interpretation. Statutory interpretation seeks to ascertain and effectuate the intention of the legislature. Minn. Stat. 645.16 (1998). Interpretation of a statute is subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996).

We agree with appellant and hold that the "prior conviction" definition should, logically, also be applied to the phrase "prior felony conviction."

Even if the definition were not so applied, appellant prevails under the rule that an ambiguity in a criminal statute should be resolved in favor of leniency to the defendant. Minnesota follows that rule. State v. Collins, 580 N.W.2d 36, 41 (Minn. App. 1998), review denied (Minn. July 16, 1998). If the "prior felony conviction" phrase is viewed as undefined, it is ambiguous; and applying the rule of lenity, we resolve the ambiguity in favor of the defendant. Because appellant did not have five sequential sets of felony-offense-and-resulting-conviction, the upward departure under the career-offender statute was improperly imposed.

The state claims that this produces an absurd result because, in some cases, a prior felony conviction will not count under the career-offender statute simply because the conviction was delayed as a result of trial scheduling. But this court has already considered and rejected that argument in the context of the sentence-enhancement statute for repeat sex offenders. In State v. Spears, 560 N.W.2d 723, 728 (Minn. App. 1997), review denied (Minn. May 28, 1997), this court noted that the reason for requiring sequential sets is to allow multiple "post-conviction opportunities for reform." Id.

In its brief, the state requests a remand for resentencing if the upward departure under the career-offender statute is reversed. At sentencing, the state had urged an upward departure on the alternative ground that appellant is a "major economic offender." When the sentencing court gives a reason for a departure, but the reason given is improper, remand is appropriate to provide the district court an opportunity to depart on a proper ground. See State v. Chaklos, 528 N.W.2d 225, 228-29 n.2 (Minn. 1995) (if departure reasons are stated at sentencing, but are improper, appellate court will either remand for resentencing or examine record to determine if sufficient evidence supports departure on other grounds); State v. Coe, 411 N.W.2d 180, 182 (Minn. 1987) (remanding for resentencing when there may be alternative basis for sentence).

We therefore remand.

II. Consecutive Sentence After Probation Revocation

Appellant also challenges the consecutive, 15-month sentence imposed after he violated probation. The state concedes that the consecutive nature of the sentence represents a departure. The trial court must make findings to support a departure at the time of sentencing.[1]

In the absence of any findings, the departure cannot stand and we cannot remand for resentencing. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) ("If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed."); see also State v. Thieman, 439 N.W.2d 1, 7 (Minn. 1989) (no reasons for departure stated at time of sentencing, so no subsequent departure allowed). We therefore modify the 15-month sentence from consecutive to concurrent.

Affirmed as modified in part, reversed in part, and remanded.

[1] See Minn. Stat. 244.10, subd. 2 (1998) ("the district court shall make written findings of fact as to the reasons for departure from the sentencing guidelines in each case"); Minn. R. Crim. P. 27.03, subd. 4(c) (when departing from sentencing guidelines in felony cases, "the court shall state, on the record, findings of fact as to the reasons for departure"); Minn. Sent. Guidelines II.F (in absence of presumptive or permissive situation, use of consecutive sentences constitutes departure from guidelines and requires written reasons).