This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-1916

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Kevin Lee,

Appellant.

 

 

Filed July 9, 2002

Reversed and remanded

Randall, Judge

 

Hennepin County District Court

File No. 00008802

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

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

 

Amy J. Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*

 

U N P U B L I S H E D O P I N I O N

R. A. RANDALL, Judge

This is a sentencing appeal. Appellant challenges his sentence of 21 months for fourth-degree criminal sexual conduct to be served consecutive to another 60-month sentence. Appellant argues that the presumptive sentence is one year and one day, and claims the record contains no facts supporting both an upward durational departure and a consecutive sentence. Appellant also argues that the district court erred when it imposed a five-year conditional release term on him for the criminal sexual conduct conviction, because execution of the criminal sexual conduct sentence was stayed. Appellant points out that the statutory conditional release term can only be imposed when one is actually sent to prison. Respondent agrees with appellant on both issues. We conclude the district court erred in sentencing, and, thus, we reverse and remand.

FACTS

Appellant Michael Lee was charged in Hennepin County District Court with criminal sexual conduct in the third degree in violation of Minn. Stat. 609.344, subd. 1(b), and unlawful possession of a firearm in violation of Minn. Stat. 624.713, subds. 1(b) and 2 (2000) and Minn. Stat. 609.11 (2000). After the court granted appellant's motion to sever the two charges for trial, appellant was tried by a jury for unlawful possession of a firearm and convicted. On December 4, 2000, appellant was sentenced to sixty months in prison, the mandatory minimum sentence.

Approximately six months later, on June 27, 2001, appellant appeared before a different judge and entered a plea of guilty to an amended charge of criminal sexual conduct in the fourth degree in violation of Minn. Stat. 609.345, subd. 1(b). The plea agreement provided that the court would determine whether the sentence would be concurrent with or consecutive to appellant's 60-month sentence for unlawful possession of a firearm.[1]

For the fourth-degree criminal sexual conduct conviction, the district court sentenced appellant to a 21-month sentence to run consecutive to the sentence imposed for the firearms conviction. The district court stayed execution of that 21-month sentence and placed appellant on probation for five years. Then the court also imposed the five-year statutory conditional release term on the stayed sentence.

D E C I S I O N

Appellant raises two specific issues. The first issue is that the presumptive sentence for a fourth-degree criminal sexual conviction is a presumptive sentence of one year and one day if there is a zero criminal history score. The 21-month sentence the district court imposed was a nine-month upward durational departure. Appellant's criminal history score need not be computed because whenever a consecutive sentence is imposed, the sentencing court must use a criminal history score of zero. See Minn. Sent. Guidelines II F (stating a sentencing court when determining a presumptive duration should use a zero criminal history score for each consecutive sentence).

Appellant correctly points out that the district court, in first doubling (approximately) appellant's sentence from 12 to 21 months and then running it consecutive to a previously executed sentence, imposed a "two-way departure" and such a departure demands that the record contain not only aggravating circumstances, but "severe aggravating circumstances." See State v. Williams, 608 N.W.2d 837, 840 (Minn. 2000) (stating that a trial court may depart both durationally and with respect to consecutive sentencing if there are severe aggravating circumstances).

Appellant next argues that the statutory conditional release[2] cannot be technically imposed unless the defendant is actually sent to prison. Appellant points out that the conditional release was imposed, not on the executed 60-month firearms conviction, but rather on the stayed sentence for the criminal sexual conduct conviction.

Our job is made easier by the professionalism and candor of the Hennepin County attorneys' office, which notified this court in January 2002, shortly after appellant's brief was filed in December 2001, that appellant is entitled to the relief he sought. Notably, respondent agreed with appellant's framing of the two alleged errors. The first issue is appellant's claim that the sentencing court could not run his criminal sexual conduct sentence consecutive to the executed sentence for unlawful possession of a firearm without reducing appellant's criminal history score to zero. Respondent concedes that is the law. Next, respondent agrees that the upward durational departure from one year and one day to 21 months and then running it consecutive, is an unwarranted upward two-way departure unless "severe aggravating circumstances" are present. Respondent agrees that the district court did not make any additional findings identifying severe aggravating circumstances, and our review of the record on the fourth-degree criminal sexual conduct charge reveals none.

In sum, on the first issue, in relevant part, the attorney representing Hennepin County stated in a letter dated January 7, 2002:

After review of the Appellant's brief in this matter and the applicable law, the respondent concludes that the Appellant is entitled to the relief sought. Two errors are alleged.

 

First, Appellant asserts that by (1) running his Criminal Sexual Conduct sentence consecutive to an executed sentence for Unlawful Possession of a Firearm and (2) failing to reduce Appellant's criminal history score to zero, the Criminal Sexual Conduct sentence in this matter departs from the guidelines in two different ways. Such two-way departures require "severe aggravating circumstances. The trial court found that "aggravating circumstances" justified departing from the guidelines to make Appellant's sex crime sentence consecutive to the weapons offense (see Sentencing Transcript, pp. 9-10). The trial court did not make additional findings identifying "severe" aggravating circumstances which would justify departing from the normal guidelines requirement that a zero criminal history score be used for sentences run consecutive to a previous sentence or sentences. See Minnesota Sentencing Guidelines II.F. Both the transcript and my inquiry with the trial attorney lead me to believe that the failure to reduce the criminal history score to zero was an oversight. The issue of using a criminal history score of three, as opposed to the presumptive score or zero, is not discussed in the sentencing transcript. Respondent agrees that the criminal history score for Appellant's sentence should have been zero because the sentence was consecutive. Appellant's sentence for Criminal Sexual Conduct in the Fourth Degree should be reduced to one year and one day, stayed for five years and run consecutive to his executed prison sentence for Unlawful Possession of a Firearm. The conditions of Appellant's probation, including successful completion of sex offender treatment if Appellant fails to do this while incarcerated, should remain unchanged.

 

On the issue of whether a defendant can be sentenced to the five-year conditional release to accompany a stayed sentence, respondent agrees with appellant that it cannot. On this issue, in relevant part, respondent's attorney's January 7, 2002 letter stated:

Appellant's brief agrees that this conditional release period is mandatory, but argues that it may only be imposed when "when a court sentences a person to prison". This is the language of the statute, and Respondent agrees that the compulsory 5 year conditional release period should be ordered if and when the Appellant is revoked on his stayed sentence for Criminal Sexual Conduct.

 

It is unclear from the transcript whether the sentencing court was ordering the 60 month conditional release to be imposed after prison or simply informing the Appellant of the mandatory requirement.

 

* * *

 

Whether the trial court intended to order the mandatory conditional release period or simply make sure Appellant knew of it, the State agrees that the statute requires the mandatory conditional release period to be ordered at the time Appellant is revoked.

 

 

These are the only matters for relief sought in Appellant's brief, and the Respondent agrees that Appellant is entitled to relief on these two issues.

 

/s/ January 7, 2002.

 

At the resentencing hearing, which we order, the district court can and should inform appellant that if he violates the conditions of his probation on the fourth-degree criminal sexual conduct charge and has his probation revoked, at that time, the statutory five-year conditional release will be imposed in addition to any other parts of the sentence. The court should make appellant most aware that this will happen if he causes his probation to be revoked. What the court cannot do at this time (because it is premature) is actually impose a conditional five-year release onto a stayed sentence.

Appellant raised two issues, supported by a sound legal brief. Respondent's letter brief agreed with appellant's analysis and states that appellant is entitled to the relief sought. Both attorneys' briefs accurately represent the state of the law. We need go no further.

We reverse the sentence imposed on the fourth-degree criminal sexual conduct conviction and remand to the district court to resentence appellant on the fourth-degree criminal conduct charge to one year and one day stayed to run consecutive to the previously imposed sentence for unlawful possession of a firearm. During that probation, the court can impose whatever conditions of probation it deems proper. However, to that stayed sentence, the court cannot impose the additional statutory five-year conditional release, but can inform appellant that should his probation be revoked down the road, the five-year conditional release, on top of any other sentencing conditions, may be imposed.

Reversed and remanded.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.

 

[1] The firearms conviction was appealed independently and affirmed. That conviction and sentence is not an issue in this case, which is strictly a sentencing appeal on the sentence appellant received for the fourth-degree criminal sexual conduct conviction.

[2] Under Minn. Stat. 609.109, subd. 7(a) (2000) [w]hen a court sentences a person to prison for a violation of 609.344 or 609.345 the court may impose a conditional release after a person has been sentenced to prison.