This opinion will be unpublished and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
State of Minnesota,
Thomas Martin O’Hara, III,
Filed July 11, 2000
Affirmed; motion granted
Polk County District Court
File No. KX-98-1198
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Wayne H. Swanson, Polk County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for respondent)
Thomas M. O’Hara, Prairie Correctional Facility, #5290, BC-11, 445 South Munsterman, P.O. Box 500, Appleton, MN 56208 (pro se appellant)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s sentencing order of consecutive terms of 58 and 86 months—a durational departure from the presumptive concurrent sentence under the sentencing guidelines. Appellant also challenges the order in which the district court sentenced the crimes. We affirm.
Appellant Thomas O’Hara, along with several others, was charged with seven drug-related offenses. He pleaded guilty to counts III and V. Count III, a first-degree offense, focused on cocaine found on August 20, 1998. Count V, a second-degree offense, originally covered transactions occurring in mid-August 1998, but was amended to include all August offenses (with the exception of the offense making up count III) in order to encompass sales occurring on August 26, 1998 and August 31, 1998.
The plea negotiations contemplated that O’Hara would receive a guideline sentence on count V with a sentence reduction so that he would be immediately eligible for the Challenge Incarceration Program. The sentence on count III would be stayed, with O’Hara being placed on supervised probation for up to 30 years. This offer was conditioned on O’Hara providing “complete and truthful information” at the trials of his co-defendants. If he violated any laws, used drugs, failed to appear for sentencing, or did not provide complete and truthful testimony, the prosecutor retained the right to revoke the offer, seek convictions on all seven charges in the complaint, proceed with an open plea and request a double durational departure or any sentence up to the 30-year statutory maximum at the time of sentencing, and seek execution of any sentences. The prosecutor agreed that O’Hara could be released pending his sentencing hearing which was scheduled for December 21, 1998.
Several weeks after the guilty plea, but before sentencing, O’Hara disappeared and a warrant was issued for his arrest. In August 1999, O’Hara appeared on the warrant. The district court determined that O’Hara had nullified the original agreement by failing to contact probation to complete a pre-sentence investigation report (PSI). The district court then sentenced O’Hara to consecutive terms of 58 months for count V and 86 months for count III. This constituted an upward departure from the presumptive concurrent executed sentence of 58 months and 122 months respectively. In so doing, the district court did not adopt the PSI recommendation that the first degree count III crime be sentenced first, and instead sentenced count V first. This appeal followed.
D E C I S I O N
A sentencing court’s decision to depart from the presumptive guidelines sentence is reviewed for an abuse of discretion. State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999). A sentencing court has no discretion to depart upward from the sentencing guidelines unless aggravating circumstances are present. Id. However, when substantial and compelling factors are present, the sentencing court has broad authority to depart. State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996). Substantial and compelling reasons are those that make the defendant’s conduct more serious than that typical of other cases involving the same crime. Spain, 590 N.W.2d at 88-89.
If reasons for departure are stated on the record, this court examines the record to determine if the reasons given justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). If the given reasons justify the departure, an appellate court will not modify the departure unless it has a strong feeling that the sentence is not proportionate to the offense. State v. Anderson, 356 N.W.2d 453, 454 (Minn. App. 1984). A defendant bears the burden of establishing that the record does not support the sentencing court’s decision to depart. State v. Elkins, 346 N.W.2d 116, 117 (Minn. 1984).
The sentencing court stated that its reasons for departure were those set forth by the state. The state first argued that a departure was justified because the offense involved three or more persons who all participated in the crime. The state also argued that O’Hara left the state, failed to testify against some of his co-conspirators, reduced his credibility for testifying against the others by committing other offenses in the interim, failed to complete his PSI, and missed his sentencing hearing. In doing so, he failed to comply with the original cooperation agreement.
O’Hara alleges that the “three participants” factor is not a valid reason for departure because the participation of three people is, in fact, an element of the offense. Additionally, O’Hara contends that this factor was not intended to support upward departures in sentencing for non-person offenses.
It is true that an element of the offense of which a defendant has been convicted cannot also be used as a basis for an upward departure. State v. Hines, 343 N.W.2d 869, 873 (Minn. App. 1984). O’Hara argues that because he was charged as an aider and abettor under Minn. Stat. § 609.05 his offense by definition involves three or more people, including the buyer. But the three-participant factor is not an element of this offense. In a drug sale, the drug buyer is not an accomplice of a person charged with distributing drugs because
where the acts of several participants * * * constitute separate and distinct crimes, the participants guilty of one crime are not accomplices of those who are guilty of a separate and distinct crime.
State v. Swyningan, 304 Minn. 552, 555, 229 N.W.2d 29, 32 (1975). O’Hara’s culpability arises from his role as courier between the seller and the buyer. If the buyer is not an accomplice, only two parties (O’Hara and the principal) are needed for culpability under § 609.05. The fact that more people may have been involved is irrelevant if their participation was not an element of the charged offense.
O’Hara also argues that, regardless of the propriety of the application of the “three participants” aggravating factor for accomplice drug sale crimes, it is improper for this factor to be applied to first-degree (wholesaler) drug offenses because wholesalers are necessarily involved in drug sales with three or more participants. The rule already cited in Swyningan belies O’Hara’s assumption that wholesalers necessarily participate with two other active participants. Each drug sale in which a wholesaler participates is a separate and discrete transaction requiring only one active participant. “Wholesaler” status arises from the quantity of drugs sold, State v. Soto, 562 N.W.2d 299, 303-04 & n.7 (Minn. 1997), and not the number of participants in each crime.
O’Hara also challenges the departure on the basis that the “three participants factor was not intended to aggravate sentences for non-person offenses. In support of this argument, O’Hara cites the Sentencing Guidelines Commission’s (commission’s) discussion of the factor and how it should be distinguished from the statute prohibiting crimes committed for the benefit of a gang. But while the commission’s executive director proposed language limiting the “three participants” factor to offenses against the person, the commission declined to adopt it. The fact that the commission considered and declined to enact the amendment is clear evidence that it was not the commission’s intent to limit this factor as defendant suggests. Cf. State v. Roloff, 562 N.W.2d 29, 32 (Minn. App. 1997) (holding that changes to the guidelines are policy decisions and are appropriately addressed by the commission).
O’Hara also challenges the district court’s decision to sentence him on count V before count III claiming that events forming the basis of count III occurred before those for count V. “When multiple current offenses are sentenced on the same day before the same judge, sentencing shall occur in the order in which the offenses occurred.” Minn. Sent. Guidelines Cmt, II.B.101.
O’Hara’s charge under count III referred to activities on August 20, 1998. Count V was amended at the guilty plea hearing from occurring “mid-August 1998” to “August 1998” so that activities forming the basis for counts VI and VII (occurring August 26, 1998 and August 31, 1998 respectively) could be incorporated into the amended count V. If these dates were the only bases for the count V charge, O’Hara would be correct in arguing that the charges were sentenced incorrectly. However, the amended count V covered all activities throughout the month of August 1998 with the exception of the August 20, 1998 incident. Although the specific dates of these activities are not clear, and were not stated in the plea hearing, there were several allegations in the complaint that supported a finding that some of the incidents forming the basis for count V occurred before August 20, 1998. See Murphy, 545 N.W.2d at 918 (suggesting that a district court might use the complaint to form the factual basis for a proper amount of restitution). Among these allegations in the complaint was a statement by a confidential informant that O’Hara had been selling approximately one-half ounce of cocaine each day since June of 1998. At his plea hearing, O’Hara admitted that he had read the complaint. When a defendant pleads guilty, he is effectively making a judicial admission to the allegations in the compliant. State v. Trott, 338 N.W.2d 248, 252 (Minn. 1983). Accordingly, the district court had an appropriate factual basis for concluding that the acts constituting count V occurred, in part, before the acts constituting count III.
Respondent state asks this court to strike portions of O’Hara’s pro-se supplemental brief, referring to his whereabouts on the original sentencing date. Although the record references the fact that he was confined in Montana on other charges, much of the portions sought to be excluded is, in fact, beyond the record. See Minn. R. Crim. P. 28.02, subd. 8 (limiting the record on appeal to “papers filed in the trial court, the offered exhibits, and the transcripts of the proceedings”). Accordingly, we grant the state’s motion.
 If count III was sentenced before count V, the presumptive sentence under the guidelines would be concurrent sentences of 98 months and 78 months respectively.