This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Jose Antonio Maldonado,




Filed September 26, 2000

Affirmed as modified

Anderson, Judge


St. Louis County District Court

File No. K299600024



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


Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue W., Suite 501, Duluth, MN  55802 (for respondent)


John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant State Public Defender, 2829 University Avenue SE, 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 Jose Antonio Maldonado argues that his sentence, an upward durational departure from the presumptive guidelines term, was not supported by substantial and compelling aggravating factors.  We agree and modify the sentencing order insofar as it durationally departs from the presumptive sentence.


             An informant conducting controlled buys and outfitted with a recording device purchased 1/10 gram of crack cocaine from appellant on two separate occasions.            After the state charged appellant with two counts of third-degree controlled substance crime in violation of Minn. Stat. § 152.023, subd. 1 (1998), he negotiated a guilty plea.  The plea agreement provided, in relevant part:

Defendant to plead guilty to one count of sale of crack cocaine in the third degree which will be merged from the original two counts.  Parties agree that court will depart from the mandatory minimum and will stay execution for 1 year at NERC [Northeast Regional Correction Center] which Defendant will begin to serve after Christmas 1999.


            Additionally, appellant’s attorney explained to the court:

[T]he parties agree that the Prosecution may argue for up to a double durational departure from the presumptive guideline sentence which will be stayed, and the Defendant may argue against this request for upward durational departure.       


The district court sentenced appellant to a stayed, 49-month sentence.  The stay represented a dispositional departure, and a 49-month term represented a 16-month upward durational departure from the 33-month presumptive guidelines sentence.  The district court cited appellant’s need for a “large incentive to stay straight” and the state’s merger of two charges as factors supporting an upward durational departure.


            Appellant claims that the district court’s given factors are not the “substantial and compelling circumstances” that are required to support an upward departure from the presumptive guidelines sentence.  We will not reverse a district court’s decision to depart from the sentencing guidelines absent an abuse of discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). 

            The sentences provided in the Minnesota Sentencing Guidelines are presumed to be appropriate for every case.  Minn. Sent. Guidelines II.D.  A sentencing court may, however, depart from the presumptive guidelines sentence if there are substantial and compelling circumstances.  Id.  A district court must give reasons specifying the substantial and compelling nature of the circumstances that demonstrate why the departure is more appropriate than the presumptive sentence.  Id.  The guidelines contain a nonexclusive list of aggravating factors that support upward departures.  Minn. Sent. Guidelines II.D.2.b.  A district court abuses its discretion when it states improper or inadequate reasons for departure.  Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).  

            The district court justified the upward departure on the basis that it gave appellant an incentive to complete probation.  The supreme court has long held that this is not a legitimate aggravating factor.  State v. Fields, 423 N.W.2d 390, 392 (Minn. 1988) (holding that a double durational departure, ordered to induce defendant to successfully complete treatment, is not a valid basis for departure under the sentencing guidelines); State v. Dillener, 336 N.W.2d 268, 269 (Minn. 1983) (unamenability to probation and the court’s desire to give a defendant an incentive to make restitution are not valid grounds for double durational departure).

             The district court also used the state’s merger of two charges as an aggravating factor.  The sentencing guidelines do not include charging or plea decisions among the enumerated aggravating factors.  See Minn. Sent. Guidelines II.D.4.2.b.  Although the factors in the guidelines are not exclusive, substantial and compelling circumstances warranting an upward departure primarily relate to a defendant’s personal culpability and show conduct significantly more serious than what is typically involved in the commission of the offense.  State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984); State v. Wright, 310 N.W.2d 461, 462-63 (Minn. 1981).  There is no evidence suggesting that appellant’s two drug crimes were more serious than typical third-degree controlled substance offenses.  The state’s agreement to “merge” two charges in exchange for a guilty plea is wholly distinct from the manner in which the crimes were committed and does not support an upward departure.

            The state asks us to consider the upward departure as a quid pro quo for the stayed sentence.  But the record shows that the parties agreed that each would argue their respective positions on the duration of the stayed sentence.  The state also contends that the sentence imposed is unauthorized by law.  The state did not seek direct appeal from the sentence as is provided for in the Minnesota Rules of Criminal Procedure, and appellant did not raise this issue on appeal.  Under these circumstances, the state’s claim is barred.  State v. Schanus, 431 N.W.2d 151, 152 (Minn. App. 1988) (requiring that the state raise issues in accordance with the Minnesota Rules of Criminal Procedure.) 

            Because the upward durational departure in this case is not supported by substantial and compelling aggravating factors, we modify the district court’s order insofar as it durationally departs from the 33-month presumptive guidelines sentence.

            Affirmed as modified.