This opinion will be unpublished and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,
Aaron Travis Nelson,
Aitkin County District Court
File No. K699388
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Bradley C. Rhodes, Aitkin County Attorney, Aitkin County Courthouse, 209 Second Street NW, Aitkin, MN 56431 (for respondent)
John M. Stuart, State Public Defender, Charles F. Clippert, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.
Appellant Aaron Travis Nelson challenges the sentencing court’s denial of his motion to correct consecutive sentences for fifth-degree felony assault and felony domestic assault. In the alternative, appellant challenges the duration of his sentence for felony domestic assault. Appellant argues that his plea bargain is insufficient justification for the consecutive sentences and the upward durational departure for the felony assault. Because a plea bargain alone does not justify an upward departure and because appellant’s scheduled release date under the sentence imposed is August 21, 2002, we reverse appellant’s consecutive sentence.
This appeal stems from sentencing for three offenses that appellant committed in Rice and Aitkin Counties in 1999. On April 30, 1999, appellant assaulted his then live-in girlfriend in Rice County. Appellant and his girlfriend argued in their apartment, and appellant’s girlfriend left the apartment and walked toward a nearby gas station. While she was walking, appellant confronted her, verbally abused her, and spat in her face. She got into his car to return to their apartment, and the argument continued as they drove. Appellant kicked her on her leg, hit her on her arm and near her temple, and slapped her forearm and the back of her head. When they arrived at their apartment, appellant’s girlfriend went to the bathroom to wash her face. Appellant followed her into the bathroom and bedroom and continued to strike her. Appellant was charged with one count of felony assault in the fifth degree pursuant to Minn. Stat. § 609.224, subd. 4(b) (1998), and one count of gross misdemeanor domestic assault pursuant to Minn. Stat. § 609.2242, subd. 2 (1998).
On June 26, 1999, appellant assaulted his sister at her home in Aitkin County. Appellant wanted to take their parents’ vehicle, but his sister would not allow appellant to take it without their parents’ permission. In order to gain control of the keys, appellant grabbed his sister’s wrist, pushed her, and wrestled her to the floor. As his sister was leaving the house, appellant slapped her face. Appellant was charged with one count of felony domestic assault pursuant to Minn. Stat. § 609.2242, subds. 1(2), 4 (1998).
On August 17, 1999, appellant and an accomplice stole money from the accomplice’s sister’s home in Aitkin County. Appellant was charged with one count of felony theft pursuant to Minn. Stat. §§ 609.52, subds. 2(1), 3, 3(a), 609.05, subd. 1 (1998), and one count of burglary in the second degree pursuant to Minn. Stat. § 609.582, subd. 2(a) (1998).
At a consolidated hearing in Aitkin County, appellant pleaded guilty to assault in the fifth degree for the Rice County assault, felony domestic assault for the Aitkin County assault, and felony theft for the Aitkin County theft. The presumptive sentence for the Rice County assault against appellant’s girlfriend, based on a criminal-history score of three, is 21 months, stayed. The presumptive sentence for the Aitkin County assault against appellant’s sister, based on a criminal-history score of four, is 24 months, commitment. The presumptive sentence for the Aitkin County theft is 19 months, stayed.
Appellant agreed to a plea bargain that allowed him to remain out of prison. He received a 21-month sentence, stayed for five years, for the Rice County assault on his girlfriend; a 24-month sentence, stayed for five years, for the Aitkin County assault on his sister; and a 19-month sentence, stayed for five years, for the Aitkin County theft. While the 21-month Rice County assault sentence and the 19-month Aitkin County theft sentences were concurrent, the 21-month Rice County assault sentence and the 24-month Aitkin County assault sentences were consecutive. Appellant was placed on probation for five years with conditions.
Appellant violated the terms of his probation. He failed to complete the after-care portion of his chemical dependency treatment program, failed to stay in contact with his probation agent, left the state without permission, and gave false information to a police officer. As a result, the court ordered execution of appellant’s sentences.
Appellant moved for modification of his sentence pursuant to Minn. R. Crim. P. 27.03, subd. 9, asking that his 24-month sentence for the Aitkin County assault be changed from a consecutive to a concurrent sentence. In the alternative, appellant requested that the 24-month sentence be vacated and that he be resentenced to a consecutive sentence of one year and one day, the sentence he would have received had the sentencing court used a criminal-history score of zero rather than four. Appellant argued that there was no mention of consecutive sentencing when he pleaded guilty, that there were no compelling circumstances justifying an upward departure from a presumptive sentence of one year and one day for the Aitkin County assault if it was imposed consecutive to the Rice County assault, and that he never waived his right to be sentenced under the sentencing guidelines. The sentencing court denied the motion, noting that (1) appellant’s plea was part of a negotiated plea agreement, (2) appellant was represented by counsel, (3) appellant acknowledged that he understood that the sentences were consecutive, and (4) appellant knowingly, voluntarily and intelligently waived his right to be sentenced under the guidelines. This appeal follows.
Departures from presumptive sentences are reviewed under an abuse-of-discretion standard, but there must be “substantial and compelling circumstances” in the record to justify a departure. Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996). A sentencing guidelines departure that is based on a plea agreement must be supported by compelling and substantial reasons. State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002). When a sentence fails to conform to statutory requirements, we may vacate a sentence or take appropriate remedial action to correct the sentence. Minn. R. Crim. P. 28.05, subd. 2 (an appellate court may “direct entry of an appropriate sentence or order further proceedings” to bring the sentence into conformity with the statute).
Appellant’s sentence is a departure from the sentencing guidelines. Consecutive sentences are permissive for multiple current felony crimes against persons if the presumptive disposition for the current offense(s) is commitment. Minn. Sent. Guidelines II.F. The term “current offense(s)” is undefined. Appellant pleaded guilty to two level IV assault charges. Unless an individual has a criminal history score of four or greater, the presumptive disposition for a level IV offense is a stayed sentence. Minn. Sent. Guidelines IV.
Here, the court sentenced appellant for the Rice County assault based on a criminal-history score of three. The presumptive sentence for a level IV offense with a criminal history score of three is 21 months, stayed. Id. The court sentenced appellant for the Aitkin County assault based on a criminal-history score of four. (The score increased to reflect the Rice County assault.) The presumptive sentence for a level IV offense with a criminal-history score of four is 24 months’ commitment. Id.
Although a criminal-history score of four combined with a level IV offense yields a presumptive executed sentence of 24 months, the Aitkin County assault does not warrant a consecutive sentence. We base this conclusion on two grounds.
First, once a sentencing court decides to impose a consecutive sentence, it must determine the duration of the second sentence based on a criminal-history score of zero. Minn. Sent. Guidelines II.F. “The purpose of this procedure is to count an individual’s criminal history score only one time in the computation of consecutive sentence durations.” Id. As a higher criminal-history score is inappropriate for determining the duration of a consecutive sentence, it is inconsistent to allow a higher criminal-history score to form the basis for imposition of a consecutive sentence.
Second, the guidelines require that, when consecutive sentences are imposed, the offenses should be “sentenced in the order in which they occurred.” Id. This language implies that the first crime for which a defendant is sentenced must carry a presumptive disposition of commitment. In State v. Beamon, 438 N.W.2d 397, 398 (Minn. App. 1989), review denied (Minn. May 12, 1989), appellant, who had a criminal-history score of six, received consecutive executed sentences for six counts of simple robbery, a level V offense. Although Beamon did not address sentencing procedures when the presumptive disposition for the first sentence is a stay and the presumptive disposition for the second sentence is commitment, it follows that the presumptive disposition of the first offense determines whether to impose consecutive sentences:
Imposition of consecutive executed sentences is not a dispositional departure because the sentencing guidelines authorized the district court to impose consecutive executed sentences. A presumptive sentence for the first simple robbery is a fifty-four month executed sentence.
Id. at 399. We hold that when the presumptive disposition for the first sentence is a stay and the presumptive disposition for the second sentence is commitment, a sentencing court should consider the presumptive disposition of the first offense when deciding whether to impose a consecutive sentence. In the present case, because the presumptive disposition for the Rice County assault is a stay, consecutive sentencing for both assaults is a departure from the guidelines.
The duration of the Aitkin County sentence also represented a departure. Once a sentencing court imposes permissive consecutive sentences, it must determine the duration of the second sentence based on a criminal-history score of zero or impose the mandatory minimum sentence, whichever is greater. Minn. Sent. Guidelines II.F. A criminal-history score of zero combined with a level IV offense results in a stayed sentence of one year and one day. Minn. Sent. Guidelines IV. Therefore, the length of the Aitkin County sentence is a departure from the guidelines.
Although appellant’s plea bargain indicates that he waived his right to a guideline sentence, the supreme court recently held that a plea bargain, alone, is not sufficient to support an upward durational departure. Misquadace, 644 N.W.2d at 71. Here, the plea agreement is the only basis cited by the sentencing court as the reason for imposing the 24-month consecutive sentence.
In supplemental briefing, the parties have raised the issue of the applicability of the Misquadace decision to this matter. The supreme court limited the application of Misquadace to “pending and future cases.” Id. at 72. Because we stayed this appeal pending the supreme court’s decision in Misquadace, and given the court’s inclusion of “pending” cases, we hold that Misquadace applies. In light of Misquadace, the district court’s sentence could be supported only based on aggravating circumstances. Under different circumstances, we would reverse and remand to the district court to allow it to support the departure with any aggravating circumstances if the court found that such circumstances exist. But appellant is scheduled to be released on August 21, 2002. Therefore, we decline to remand to the district court. Accordingly, we reverse the 24-month consecutive sentence, correct it to run concurrently, and direct the Department of Corrections to determine the effect of this decision on appellant’s release date and supervised release.