This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Joshua J. Damon,



Filed August 15, 2002

Reversed and remanded

Willis, Judge


Polk County District Court

File No. K2011594



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


Wayne H. Swanson, Polk County Attorney, Andrew R. K. Johnson, Assistant County Attorney, Crookston Professional Center, 223 East Seventh Street, #101, Crookston, MN  56716 (for respondent)


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


            Considered and decided by Willis, Presiding Judge, Harten, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


As part of a plea agreement, appellant pleaded guilty to third-degree assault.  He challenges the sentence imposed for his assault conviction, the execution of which was stayed, because the sentence would run consecutively to, rather than concurrently with, his sentences for prior burglary convictions, executed as part of the same plea agreement.  Because the guidelines presume a concurrent sentence for his conviction of third-degree assault and because the district court did not articulate any reason for departing from that presumptive sentence, we reverse and remand for resentencing.   


            Appellant Joshua J. Damon was charged with third- and fifth-degree assault.  As part of a plea agreement, he pleaded guilty to third-degree assault and to a misdemeanor charge of obstructing legal process.  In January 2002, as part of the same plea agreement, the district court revoked Damon’s probation and executed his sentences for two prior convictions of second-degree burglary.  The district court imposed a stayed 60-month sentence on the assault charge to run consecutively to the executed sentences for the burglary convictions. 

            In February 2002, Damon moved the district court for a modification of his sentence for third-degree assault on the ground that he had agreed to the 60-month sentence because he believed that he was subject to sentencing as a career offender.  Damon argued that, pursuant to the sentencing guidelines, the district court should have imposed a stayed 33-month sentence, rather than a stayed 60-month sentence, and that the sentence should have run concurrently with, rather than consecutively to, the executed sentences for his burglary convictions. 

The state did not oppose Damon’s motion to modify his sentence from 60 to 33 months.  But the state argued that his offenses justified the consecutive sentence because at least one of his crimes, the third-degree assault, involved a person.  The district court amended Damon’s sentence on the third-degree-assault conviction from 60 to 33 months, stayed its execution, and ordered that the stayed sentence run consecutively to Damon’s executed sentences for the probation violations.  This appeal follows.    


A district court has broad discretion in sentencing criminals.  State v. Law, 620 N.W.2d 562, 564 (Minn. App. 2000), review denied (Minn. Dec. 20, 2000).  But a district court “has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present.”  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted); see also Minn. Sent. Guidelines cmt. II.D.01.  “When a district court departs, it must articulate substantial and compelling reasons justifying the departure.”  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citation omitted).

Damon contends that, based on his prior convictions of burglary, the presumptive guidelines sentence for a conviction of third-degree assault is a sentence that runs concurrently with the executed sentences for his burglary convictions and that the district court should have imposed and stayed the execution of the presumptive sentence.  Damon contends that he agreed to a consecutive sentence because he believed that the guidelines called for it.  He does not challenge the revocation of probation for his burglary convictions or the executed sentences for those convictions.

Generally, when an offender is convicted of multiple current offenses, or when there is a prior felony sentence which has not expired or been discharged, concurrent sentencing is presumptive. 


Minn. Sent. Guidelines II.F.  But a court may impose a consecutive sentence under certain circumstances, including when a defendant has both current and prior convictions for crimes against a person and the sentence for the prior conviction or convictions has not expired or been discharged.  Id.

Here, the district court imposed a 33-month sentence, stayed, to run consecutively to the executed sentences for Damon’s prior burglary convictions.  But although Damon’s conviction of third-degree assault was for a crime against a person, his prior convictions of burglary were not crimes against a person.  The record reveals no other circumstances in this case that justify a consecutive sentence under the guidelines.  See Minn. Sent. Guidelines II.F (providing circumstances under which consecutive sentence does not constitute departure that requires written reasons).  Moreover, based on Damon’s criminal-history score of 21, the presumptive sentence for third-degree assault is commitment to the commissioner of corrections.  See Minn. Sent. Guidelines IV, V. Therefore, the district court’s imposition of a stayed, consecutive sentence for Damon’s third-degree-assault conviction was a departure from the guidelines. 

Here, although the state noted at the plea hearing that staying the execution of the agreed-on sentence would be a downward “departure * * * justified by looking at the photographs, noting that it’s kind of a borderline fifth degree, third degree assault,” the district court made no written findings regarding its reasons for that departure or for imposing a consecutive sentence, which also was a departure from the guidelines.  A district court’s failure to make written findings regarding its reasons for departures requires this court to remand.  See  Minn. Stat. § 244.10, subd. 2 (2000) (providing that “the district court shall make written findings of fact as to the reason for departure from the sentencing guidelines in each case in which the court imposes or stays a sentence that deviates from the sentencing guidelines applicable to the case” (emphasis added)); State v. Garrett, 479 N.W.2d 745, 749 (Minn. App. 1992) (reversing and remanding because district court failed to make findings regarding reason for departing from sentencing guidelines), review denied (Minn. Mar. 19, 1992).    

            The state concedes that Damon’s consecutive sentence for his third-degree-assault conviction departed from the guidelines.  But the state contends that Damon nevertheless agreed to a consecutive sentence pursuant to a plea agreement and that because Damon agreed to the sentence, this court should affirm.  The state cites State v. Givens in support of its argument.  See State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996) (noting, in dictum, that defendant may waive “right” to guidelines sentence as long as he knowingly, voluntarily, and intelligently waives that right). 

In Givens, as part of a plea agreement, a defendant pleaded guilty to first-degree burglary, a charge that, based on the defendant’s criminal-history score, carried a presumptive guidelines sentence of 48 months.  Id. at 775.  Pursuant to that agreement, the district court imposed a sentence of 96 months and stayed the execution of that sentence, ordering respondent to enter treatment for chemical dependency.  Id.  The sentence was a downward dispositional departure and an upward durational departure, both of which required the district court to state its reasons on the record for departing.  Id.; see Schmit, 601 N.W.2d at 898 (requiring district court to state substantial and compelling reasons to justify guidelines departure). 

Although the Givens court held that the sentencing departure was justified, the court went on to address the state’s request for the court

to establish a rebuttable presumption that if a defendant agrees to a departure as part of a plea bargain, the departure needs no additional justification.  


Id. at 776-77.  Reasoning that courts permit defendants to waive a variety of rights, the Givens court stated, in dictum, that a criminal defendant may waive his “right” to be sentenced under the guidelines as long as he knowingly, voluntarily, and intelligently waives that right.  544 N.W.2d at 777.  Here, the state argues that, because Damon agreed to the departures, the district court’s failure to make written findings regarding its reasons for the departures does not require a remand.

            But in 1998, the legislature amended the statute that established the sentencing-guidelines commission and gave the commission the authority to promulgate sentencing guidelines.  Minn. Stat. § 244.09, subd. 5(2) (2000), now provides:

Sentencing pursuant to the sentencing guidelines is not a right that accrues to a person convicted of a felony; it is a procedure based on state public policy to maintain uniformity, proportionality, rationality, and predictability in sentencing. 


Because the Givens court based its rationale regarding plea agreements and guidelines sentencing on the proposition that guidelines sentencing is a “right” that a defendant may waive, the amendment cast doubt regarding whether the legislature had “overrul[ed]” Givens.  See State v. Misquadace, 629 N.W.2d 487, 490 (Minn. App. 2001), aff’d by 644 N.W.2d 65 (Minn. 2002) (raising but not addressing issue regarding whether Minn. Stat. § 244.09 constitutes legislative overruling of Givens). 

Subsequently, in Misquadace, this court held that, based on the amended statute,

[a] district court does not have discretion to depart from the Minnesota Sentencing Guidelines solely because the defendant agrees to the departure, but rather must * * * disclose the substantial and compelling reasons that support that departure. 


Id. at 492.  The supreme court affirmed, reasoning that, despite the lack of specific language in the guidelines authorizing or prohibiting the use of plea agreements to depart from the guidelines, guidelines commentary highlights the importance of articulating reasons for departure to ensure consistent, proportional, and rational sentencing.  State v. Misquadace, 644 N.W.2d 65, 68-69, 72 (Minn. 2002).  Thus, the court concluded, “plea agreements cannot form the sole basis [for] a sentencing departure.”  Id. at 71-72 (affirming this court’s decision to reverse and remand because district court “only cited the plea agreement as grounds for departing from the sentencing guidelines”). 

            Because a plea agreement cannot form the sole basis for departing from the presumptive guidelines sentence, we reverse and remand Damon’s sentence for third-degree assault with instructions for the district court to impose the presumptive sentence or to articulate substantial and compelling reasons for departing.  See Garrett, 479 N.W.2d at 749 (holding that district court may depart on remand “where the record clearly indicates that the [district] court originally intended to depart”).  We do not, therefore, reach Damon’s claim that if this court denies him sentencing relief, he is entitled to withdraw his plea of guilty.  

            Reversed and remanded.