This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Gregory A. Peterson,
Koochiching County District Court
File No. K20066
Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
David C. Johnson, Koochiching County Attorney, Courthouse, 715 Fourth Street, International Falls, MN 56649 (for respondent)
John S. Lind, 920 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)
Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.
Appellant challenges the stay of imposition of an 18-month sentence for fourth-degree criminal sexual conduct, arguing that the district court abused its discretion in departing from the sentencing guidelines without citing any reasons for the departure. Because the district court, by staying imposition of appellant’s sentence, did not depart from the sentencing guidelines, we affirm.
After his 14-year-old step-daughter alleged that appellant Gregory Peterson sexually abused her while the two were on a hunting trip in October 1999, he was charged with two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(b) (1998), and one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(b) (1998).
After negotiating a plea agreement that dismissed the first- and second-degree charges and included an 18-month stayed sentence, successful completion of probation, and other conditions, appellant pleaded guilty to a lesser charge of fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(b) (1998). Following the terms of the plea agreement, the district court stayed imposition of the sentence and placed appellant on probation for ten years. This appeal followed.
D E C I S I O N
The decision to depart from sentencing guidelines is within the district court’s discretion and that decision will not be disturbed absent a clear abuse of that discretion. State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999). The district court may depart upward if the crime involves substantial and compelling aggravating factors. Minn. Sent. Guidelines II.D and cmt. II.D.01. When the district court departs from the sentencing guidelines, however, it must provide written reasons specifying the reasons justifying the departure. Minn. Sent. Guidelines II.D.
The presumptive fourth-degree criminal sexual conduct guideline sentence for appellant, who has a criminal history score of zero, is 12 months and 1 day. Minn. Sent. Guidelines IV. Therefore, appellant asserts that the stay of imposition of the 18-month stayed sentence that was part of the plea agreement represents an upward durational departure, and requires that the district court provide written reasons justifying that departure. No reasons were provided by the court here; thus, appellant argues that his conviction must be vacated and the matter remanded to the district court. We disagree.
At the sentencing hearing, the district court stated:
Notwithstanding your plea of guilty, the Court’s finding of guilt and being convicted of a lesser included crime as charged in the complaint, it is ordered that imposition of the sentence for that crime be and is stayed for a period of * * * ten years.
The court then outlined several conditions of probation, including a lengthy discussion of whether a limited or no-contact provision regarding appellant’s son would apply. At the end of the sentencing hearing the court noted:
[I]f the Court were to impose sentence in this case, if the Court were to go along with the plea agreement, it calls for an upward departure in this case of 18 months. * * * That’s what the articulated sentence would be and will be if there’s violations.
We conclude that the district court did not depart upward from the presumptive guideline sentence. It, instead, stayed imposition of any sentence. The final comments of the court regarding what consequences may befall appellant if he violates the conditions of his probation cannot be construed as anything but a future prediction. And the Minnesota Sentencing Guidelines make clear that a stay of imposition of sentence cannot be considered a departure. “When a stay of imposition is given, no sentence length is pronounced and the imposition of the sentence is stayed to some future date.” Minn. Sent. Guidelines cmt. II.C.04; see also State v. Stafford, 368 N.W.2d 364, 366 (Minn. App. 1985) (concluding that no sentence of imprisonment is imposed until a stay of imposition is vacated). There will never be a sentence imposed upon appellant for the offense to which he pleaded guilty here, unless he violates the terms of his probation and the court decides to revoke probation and impose sentence.
At the very least, appellant’s complaint about the district court’s failure to specify reasons justifying a departure from the presumptive guidelines sentence is premature. See Minn. Stat. § 609.14, subd. 3(1) (2000) (if imposition of sentence was stayed, upon revocation of probation the court may again stay sentence or impose sentence and stay execution thereof, with intermediate sanctions, or impose sentence and order execution thereof); Minn. Sent. Guidelines cmt. II.C.04. Should the most unfortunate potential circumstance come to pass—violation of probation, revocation of probation, imposition of sentence—the district court at that time will have the opportunity to specify the reasons justifying departure from the presumptive guideline sentence. If the court fails to do so, appellant shall have the right to raise then the allegations he prematurely attempts to raise here. See, generally, State v. Fields, 416 N.W.2d 734, 736 (Minn. 1987).
In view of our decision that the district court did not depart from the sentencing guidelines in sentencing appellant, we do not reach his claim under State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996), that the district court improperly sentenced him solely according to his plea agreement without providing written reasons for any departure.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.