This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).








State of Minnesota,


Robert Raymond Gagnon,
a/k/a Robert Raymond Eldard,


Filed May 8, 2001

Affirmed as modified

Crippen, Judge


Hennepin County District Court

File No. 94057746



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


Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


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


            Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Robert Gagnon challenges the trial court’s revocation of the conditional stay of his concurrent sentences for first-degree and third-degree burglary.  He also questions the lawful term of the now-executed sentences.  We affirm the execution of the sentences but modify their duration.



In 1994, appellant pleaded guilty to three counts of first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a) (1994), and one count of third-degree burglary in violation of Minn. Stat. § 609.582, subd. 3 (1994).  The trial court sentenced appellant consecutively to a 54-month executed term for one of the first-degree burglary charges, followed by stayed, concurrent sentences on the other three counts—a 20-year stay of two 130-month sentences for the other first-degree burglary charges and a 10-year stay of a 41-month sentence on the third-degree burglary charge.

In July 2000, the trial court found that appellant violated the condition of remaining law-abiding because of his misdemeanor conviction for obstructing legal process in September 1999, and the court ordered execution of the previously stayed sentences.


1.         Execution of the Concurrent Sentences

A reviewing court will not reverse a decision to revoke a conditional stay of execution unless there is a clear abuse of discretion.  State v. Austin, 295 N.W.2d 246, 249-50 (Minn. 1980).  The purpose of a probationary stay is rehabilitation, and “revocation should be used only as a last resort when treatment has failed.”  Id. at 250.  If the trial court makes appropriate revocation findings, it has powers that include issuing an order to execute a previously imposed sentence.  Minn. R. Crim. P. 27.04, subd. 3(3)(b).  But the court must designate the specific conditions that were violated, find that the violation was intentional or inexcusable, and find that the need for confinement outweighs the policies favoring probationary supervision.  Austin, 295 N.W.2d at 250.

Appellant first states that the probation conditions were not clear.  Even though appellant did not remember being informed of the conditions, the trial court correctly found that Minnesota law imposes the condition of remaining law-abiding.  See Minn. Stat. § 609.14, subd. 1(a) (2000).  Moreover, the initial, temporary probation order states that appellant must “[o]bey all local ordinances and state and national laws.”  Therefore, the court properly found that appellant’s misdemeanor conviction[1] constitutes misconduct warranting the execution of a sentence.  See State v. Daschendorf, 371 N.W.2d 255, 255-56 (Minn. App. 1985) (finding misdemeanor convictions provided an adequate basis for executing a sentence that was conditionally stayed).

Appellant does not challenge the finding that the violation was intentional and inexcusable but asserts that the need to confine him does not outweigh the policies favoring probation.  Appellant contends that the record shows he was attempting to rehabilitate himself by attending individual counseling, participating in psychological testing, getting treatment for mental-health issues, and participating in an anger-management group.  But there is ample basis in the record to support the court’s finding that appellant “is unamenable to probation, is a dangerous person, and that his continued freedom is a threat to public safety.”  Appellant did not follow through with counseling and stopped taking his anxiety medication.  Also, the probation report concluded that the severity of appellant’s criminal behavior is “intensifying.”  Therefore, the trial court did not clearly abuse its discretion.

2.         Sentencing

Appellant contends that the sentences for concurrent terms of 130 months, 130 months, and 41 months are for unlawful durations.  The sentences are reviewable for the first time on appeal because they are not authorized by law.  Minn. R. Crim. P. 27.03, subd. 9 (“The court at any time may correct a sentence not authorized by law.”); see also State v. Stutelberg, 435 N.W.2d 632, 635-36 (Minn. App. 1989) (using rule 27.03, subdivision 9, to review sentencing complaints).

In 1994, the court determined that the presumptive durations for the three concurrent sentences were 65 months, 65 months, and 41 months.  These calculations assumed concurrent sentencing on all charges because each sentence took into account appellant’s criminal-history score.[2]  But the trial court ordered that the three stayed, concurrent sentences be consecutive to the executed sentence that it imposed for the first offense.  The law at that time did not authorize the court to include the criminal-history score for the consecutive sentences.  As a result, the presumptive durations of the sentences were 21 months, 21 months, and one year and a day.  See Minn. Sent. Guidelines II.F (1994) (stating that after computing the duration for the most severe offense, the duration of the consecutively sentenced charges should be computed with a criminal-history score of zero); id. IV (showing the presumptive sentence lengths).  Thus, as appellant contends, the court used sextuple and triple durational departures. 

The record does not reveal a theory of departure employed by the trial court on the concurrent sentences and fails to demonstrate cause for departure on any theories that might apply to the case.  The trial court stated its choice of consecutive sentencing but mentioned departure only once, noting that the first stayed sentence represented “an upward departure because of [appellant’s] career history of what [he has] done in the past.”[3] 

Respondent suggests that the court’s departures were premised on the dangerous-offender statute, Minn. Stat. § 609.152, subd. 2 (1994),[4] because the state proposed departure based on this statute at the sentencing hearing.  The statute allowed for departure up to the statutory maximum if the court found that the defendant committed two or more violent crimes and was a danger to public safety.  Id.  This theory was not enunciated by the trial court and the record does not permit its application to justify departure.  There was no showing that the underlying conduct of appellant’s prior, out-of-state convictions constituted violent crimes or that appellant was a danger to public safety.  In fact, the sentencing court stayed execution of the sentences because it found that appellant was at a crossroads in his life and wanted to encourage him to seek treatment and counseling, which indicates that the trial court did not expect appellant to be a danger to public safety after completion of the initial, executed sentence.  With respect to the court’s brief comment about sentencing appellant in accordance with his “career history,” he could not have been sentenced as a “career offender” because he did not have more than four prior felony convictions.  Id., subd. 3 (1994).[5]

Finally, we have examined the record for aggravating factors that would justify an upward departure.  None were asserted by respondent or recited by the sentencing court, and we find none.  We therefore recalculate the duration of the now-executed sentences with a criminal-history score of zero and modify them as concurrent sentences with durations of 21 months, 21 months, and one year and one day.

Affirmed as modified.


[1] Appellant states that he pleaded guilty only because he needed medical treatment but did not file a motion to withdraw his plea or seek any other relief.

[2] In his brief, appellant observed that the trial court erroneously took his criminal-history score into account and respondent did not deny that observation in its brief.

[3] Notwithstanding the absence of references to departure, it is evident that the trial court consciously departed durationally in tandem with its mistaken use of the criminal-history score in calculating the term of each sentence.  The sentencing worksheets indicated, for example, that the second-announced sentence involved a presumptive term of 65 months, which the trial court evidently doubled to determine the 130-month sentence.  There is no evidence in the record that the trial court wrestled with the presumptive sentence calculated with zero criminal-history points and decided to depart six times over the presumptive sentence.  The same is true for the third-announced sentence, which appears to be a doubling of the 65-month calculation.  As for the fourth sentence, the trial court evidently decided not to depart but imposed a 41-month sentence, the presumptive sentence when calculated with criminal-history points.

[4] Now codified at Minn. Stat. § 609.1095, subd. 2 (2000).

[5] Now codified at Minn. Stat. § 609.1095, subd. 4 (2000), without use of “career offender” designation.