This opinion will be unpublished and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

C6-01-1992

 

Bonifacio Ayala, Jr., petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed July 10, 2002

Affirmed in part and reversed in part

Willis, Judge

 

Polk County District Court

File No. K998950

 

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

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Wayne H. Swanson, Polk County Attorney, Polk County Courthouse, 612 North Broadway, Crookston, MN  56716 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Foley, Judge.*

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

WILLIS, Judge

            This appeal is from an order denying a postconviction petition challenging appellant’s 1998 sentences for conspiracy to commit first-degree controlled-substance crime, and first- and second-degree controlled-substance crime.  See Minn. Stat. §§ 152.021, subd. 1(1), 152.022, subd. 1(3), 152.096, subd. 1 (1996 & Supp. 1997).  Because we conclude that the durational departures are supported by substantial and compelling circumstances, but that multiple sentencing for both the first- and second-degree controlled-substance crimes is not permissible, we affirm in part and reverse in part by vacating the 108-month sentence for second-degree controlled-substance crime.

FACTS

Police arrested appellant Bonifacio Ayala, Jr., during the execution of search warrants obtained after confidential informants bought cocaine and methamphetamine from him and from Darlene Shaske, with whom he was residing.  The warrants authorized searches of Ayala’s residence and a nearby mobile home that Shaske had recently purchased.  The officers executed the warrants simultaneously on July 27, 1998, and seized 180 grams of cocaine and 13.8 grams of methamphetamine.

            The state charged Ayala with six drug-related offenses.  The parties negotiated a plea agreement under which Ayala entered Alford pleas to the charges of first-degree possession of cocaine with intent to sell, a violation of Minn. Stat. § 152.021, subd. 1(1) (1996 & Supp. 1997); conspiracy to commit first-degree controlled-substance crime, a violation of Minn. Stat. § 152.096, subd. 1 (1996); and second-degree possession of methamphetamine with intent to sell, a violation of Minn. Stat. § 152.022, subd. 1(3) (1996 & Supp. 1997).  In exchange, the state dismissed the remaining three charges and agreed to limit its sentencing request to 316 months.

The district court sentenced Ayala to concurrent prison terms of 316 months for first-degree possession of cocaine with intent to sell, 316 months for conspiracy to commit first-degree controlled-substance crime, and 108 months for second-degree possession of methamphetamine with intent to sell.  The 316-month sentences were double departures from the presumptive sentences for those offenses, given Ayala’s criminal-history score.  Ayala appealed the district court’s sentencing decision, but, on his motion, this court dismissed the direct appeal and remanded for further proceedings.

            Ayala petitioned for postconviction relief, challenging the imposition of multiple sentences and the double departures on two of the counts.  The postconviction court denied relief, and this appeal follows.

D E C I S I O N

            When a direct appeal has been dismissed and remanded for postconviction proceedings, we apply the same standard of review in the postconviction appeal that would have been applied to the same issues if raised on direct appeal.  Santiago v. State, 644 N.W.2d 425, 439 (Minn. 2002).

I.

            Ayala argues that his three offenses arose from a single behavioral incident, and, therefore, the postconviction court abused its discretion in determining that the imposition of multiple sentences was permissible.  Minnesota law prohibits the imposition of multiple sentences, including concurrent sentences, arising from a single behavioral incident.   State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995).  “Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of [a] particular case.”  Id. at 294.  To determine whether multiple offenses arose from a single behavioral incident, this court examines whether they were motivated by a single criminal objective and whether they were unified in time and place.  See id.

            The postconviction court ruled that the conspiracy was a separate behavioral incident and could therefore be sentenced separately from the controlled-substance crimes.  The record supports this determination.  Although Ayala entered an Alford plea and was not asked to detail the facts of the offenses, the prosecutor referred to the complaint and discovery materials to provide the factual basis for the guilty plea.

Statements made by Ayala and Shaske indicate that they conspired to possess or sell cocaine for at least several weeks before the execution of the search warrants, and Shaske occasionally traveled outside East Grand Forks, where Ayala and Shaske lived, to obtain cocaine.  Thus, the conspiracy and the overt acts committed in furtherance of it did not all occur at the same time and place as the possession of cocaine and methamphetamine.  And although the three offenses were all motivated by the objective of earning a profit, “the criminal plan of obtaining as much money as possible” does not constitute a single criminal objective.  State v. Soto, 562 N.W.2d 299, 304 (Minn. 1997). 

The postconviction court also determined that Ayala’s offenses of first-degree possession of cocaine with intent to sell and second-degree possession of methamphetamine with intent to sell did not arise from the same behavioral incident.

Possession of two different controlled substances at the same time and place for the offender’s personal use has been held to constitute a single behavioral incident.  State v. Reese, 446 N.W.2d 173, 180 (Minn. App. 1989), review denied (Minn. Nov. 15, 1989).  Drug sales are generally considered separate incidents, even if they occur within a short period of time.  State v. Gould, 562 N.W.2d 518, 521 (Minn. 1997).  But Ayala was not convicted for selling drugs.

Ayala possessed cocaine and methamphetamine, both with the intent to sell.  Thus, his criminal objective was the same, and, although he took possession of the two shipments about a week apart, both were found stored in the mobile home at the same time.  This court has held that possession of two different controlled substances, at the same time and place and with the same intent to sell, is a single behavioral incident.  State v. Barnes, 618 N.W.2d 805, 813 (Minn. App. 2000) (holding that possession of marijuana and cocaine in same bedroom, packaged for sale, was single behavioral incident), review denied (Jan. 16, 2001).  We conclude that Ayala’s possession of cocaine with intent to sell and his possession of methamphetamine with intent to sell are part of the same behavioral incident.  The 108-month sentence for second-degree controlled-substance offense must, therefore, be vacated.

II.

            Ayala argues that the postconviction court abused its discretion by determining that the double departures for first-degree controlled-substance offense (possession of cocaine with intent to sell) and conspiracy to commit first-degree controlled-substance crime were supported by substantial and compelling circumstances.  The decision to depart from the sentencing guidelines rests within the district court’s discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  But the district court must impose the presumptive sentence for an offense unless a departure is warranted by “substantial and compelling circumstances.”  Minn. Sent. Guidelines II.D.  The postconviction court concluded that the sentencing departures were warranted on the grounds that Ayala committed major controlled-substance offenses and that he sold and possessed controlled substances in the presence of his 15-year-old son.

The sentencing guidelines allow the court to depart if the offender has committed a “major controlled substance offense,” which is “an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual offense.”  Minn. Sent. Guidelines II.D.2.b.(5).  This aggravating factor requires that two or more of the enumerated factors be present.  Id.  The postconviction court found that the following factors were present:

(a)  the offense involved at least three separate transactions wherein controlled substances were sold, transferred, or possessed with intent to do so; [and]

(b)  the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; [and]

 

* * *

(f)  the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement; * * * .

 

Id.  Ayala does not dispute the finding that factor (a) was present.  But he challenges the findings that factors (b) and (f) were present.

The postconviction court found that the record contains evidence that Ayala “transferred between 8 and 28 grams of cocaine every two weeks.”  Ayala acknowledges that there is evidence that, over time, he sold a total amount of cocaine that exceeded an amount that one person would buy for personal use.  But he claims that there is no evidence that, in any one transaction, he sold or attempted to sell an amount of cocaine that was substantially larger than for personal use.

Ayala cites no authority for the proposition that factor (b) is satisfied only when the quantity involved in a single transaction is substantially larger than for personal use.  This court has implicitly rejected this proposition.  See State v. Marshall, 411 N.W.2d 276, 280-81 (Minn. App. 1987) (finding factor (b) was present when evidence showed that offender possessed 39.2 grams of cocaine, which was “a larger quantity than for normal use”), review denied (Minn. Oct. 26, 1987).

The supreme court has recently cautioned courts “against using quantity to support a departure under the major controlled substance offense departure criteria when to do so duplicates an element of the offense.”  State v. McIntosh, 641 N.W.2d 3, 12 (Minn. 2002).  But the 180 grams possessed by Ayala is far more than the ten grams required for a first-degree controlled-substance crime.  In this case, therefore, the quantity of drugs under factor (b) is not so duplicative of an element of the offense as to invalidate the departure.  See generally State v. Skinner, 450 N.W.2d 648, 654 (Minn. App. 1990) (holding that age of victim, although considered in definition of the offense, could be grounds for departure if sufficiently distinguishable from typical offense), review denied (Minn. Feb. 28, 1990); State v. Felix, 410 N.W.2d 398, 401 (Minn. App. 1987) (holding that victim’s injuries that met all statutory definitions of “great bodily harm” could support departure although “great bodily harm” was an element of the offense), review denied (Minn. Sept. 29, 1987).

The postconviction court also found that the record contains evidence that (1) Ayala had a cocaine source in Mexico; (2) Ayala and Shaske had a methamphetamine source near the Canadian border; (3) Ayala had a network of sources for “bringing in” controlled substances; (4) Ayala and Shaske kept a mobile home as a “stash” house for drug supplies; and (5) although Ayala was “only in circulation” for six months, “he had developed a large system of suppliers with regular drop-off periods and a steady customer base of five to ten people per day.”  Ayala does not dispute these findings but argues that they are insufficient to show that factor (f)--a high degree of sophistication or planning--was present.  We disagree.  The only inference to be drawn from the facts found by the postconviction court is that Ayala’s offense was marked by a high degree of sophistication and planning. 

The postconviction court also found that Ayala placed his 15-year-old son in a dangerous environment and exposed him to the drug trade by allowing him to be present during sales.  Ayala does not challenge this finding but argues that it does not show the existence of a substantial and compelling circumstance warranting the sentencing departures.  Committing an offense in the presence of a child is more commonly considered an aggravating factor in crimes of violence.  See State v. Hart, 477 N.W.2d 732, 740 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992).  But here we conclude the postconviction court was well within its discretion in finding that Ayala’s teen-age son, by being exposed to drug sales, was victimized by the offense and that such exposure is an aggravating factor not present in the typical first-degree controlled-substance offense.

Affirmed in part and reversed in part.

 

 



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