This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







State of Minnesota,





Johnathon Craig McClellan,



Filed August 8, 2000


Willis, Judge


Ramsey County District Court

File No. K197674



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


Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN  55102 (for respondent)


John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


Johnathon Craig McClellan appeals from the district court’s imposition of sentence after McClellan admitted at three separate hearings that he had violated various conditions of his probation.  We affirm.


On November 6, 1997, McClellan pleaded guilty to felony aiding and abetting a drive-by shooting in violation of Minn. Stat. § 609.66, subd. 1e(a) (1996).  Under a plea bargain accepted by the district court, the court conditionally stayed imposition of sentence and placed McClellan on probation.

In a December 1998 probation-revocation hearing, McClellan admitted to the district court that he had violated the conditions of his probation.  In an April 1999 probation-revocation hearing, McClellan admitted that he had again violated his probation conditions.  Finally, after McClellan admitted a third violation of his probation at a revocation hearing on November 19, 1999, the district court vacated the stay of imposition and imposed a sentence of 72 months.  In January 2000, McClellan moved to reduce the sentence to 60 months, the statutory maximum sentence for his offense.  See Minn. Stat. § 609.66, subd. 1e(a).  The district court granted the motion, and McClellan now appeals from the imposition of the 60-month sentence. 



            The imposition of a sentence lies within the discretion of the district court and we will affirm the sentence absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).

            McClellan argues that the district court erred in imposing a sentence of 60 months because that duration exceeds the presumptive sentence established by the sentencing guidelines and the court identified no aggravating factors to justify the departure.  See generally Minn. Sent. Guidelines II.E (stating that presumptive sentence for felony conviction is duration established by guidelines or mandatory minimum established by statute, whichever is longer); id., IV (providing presumptive sentence of 12-23 months for violation of section 609.66, subd. 1e(a));  Minn. Stat. § 609.11, subd. 5(a) (1996) (establishing 36-month minimum sentence for violations of section 609.66, subdivision 1e (1996)); Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985) (holding that reasons for departure from sentencing guidelines must be stated on record).  But in Givens the supreme court held that if a defendant waives his right to be sentenced under the guidelines by agreeing to an upward durational departure from a presumptive sentence as part of a plea bargain, the departure needs no additional justification.  544 N.W.2d at 776-77. 

A defendant’s waiver of his right to be sentenced under the guidelines must be knowing, intelligent, and voluntary.  Id. at 777.  Thus, for a waiver to be binding, a defendant must have been advised of his right to be sentenced under the guidelines and have had the opportunity to consult with counsel.  Id.  And the waiver must be approved by the district court.  Id.

            Here, the district court held a hearing on November 6, 1997, regarding McClellan’s plea bargain.  During a recess in those proceedings, McClellan, with the assistance of counsel, filled out and signed a guilty-plea petition that states

I have been told by my attorney and understand * * * [that] defendant and state will agree to a durational departure to 72 months and a dispositional departure.  * * *  [The] court will stay imposition of sentence [and] defendant agrees to abide by all conditions of probation.


            When the hearing was resumed later that day, the court asked McClellan if he understood the plea agreement.  McClellan replied, “Yes.”  McClellan’s counsel asked him:

Do you understand that the agreement that has been reached in this matter is that * * * you and the state have agreed to a durational departure, which means that the amount of time that you would be serving, as the court indicated, if you [violate] probation is 72 months.  Do you understand that?


McClellan again answered, “Yes.”  The court then took the plea agreement under advisement. 

            The record shows that before the sentencing hearing, which was held on November 14, 1997, McClellan’s counsel notified the court that the statutory maximum sentence for the offense was 60 months, rather than the 72 months discussed on November 6.   See Minn. Stat. § 609.66, subd. 1e (a) (1996).  The record also shows that before the hearing, the court, the state, and McClellan’s counsel discussed the court’s concern that it would not be able to depart from the sentencing guidelines if McClellan violated the conditions of his probation.  In response to the court’s expression of concern, the state explained that, as part of the plea agreement, McClellan consented to allow the court to impose the statutory maximum if McClellan violated the conditions of his probation.  McClellan’s counsel characterized the agreement by stating that if McClellan violated the conditions of his probation

the court may impose any lawful sentence which the court could have imposed at this time.  My client is willing to stipulate that the court could both durationally and dispositionally depart * * * and is willing to accept the understanding of the court that should there be a violation of his probation, while the court is not imposing sentence, should the court have to impose sentence the court will likely impose the statutory maximum of five years. 


The court asked McClellan:

Do you understand if you come back on a violation you would be facing a statutory maximum here which would be 60 months?  Do you understand?


McClellan replied, “Yes.”  The court then accepted McClellan’s guilty plea.

            Here, as in Givens, the district court conditionally stayed imposition of an upward durational departure from the presumptive sentence under the guidelines.  See 544 N.W.2d at 775.  And the record shows that McClellan knowingly, understandingly, and voluntarily waived his right to be sentenced under the guidelines and agreed to the upward durational departure as a term of his plea bargain.  We therefore conclude that the district court did not abuse its discretion in imposing a 60-month sentence after McClellan admitted to the court that he had violated the conditions of his probation.