This opinion will be unpublished and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
Isaiah Johnson, petitioner,
State of Minnesota,
Filed September 24, 2002
Sherburne County District Court
File No. K89953
Isaiah Johnson, 1000 Lakeshore Drive, Moose Lake, Minnesota 55767 (pro se appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, Minnesota 55103; and
Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, Sherburne County Government Center, 13880 Highway 10, Elk River, Minnesota 55330 (for respondent)
Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from an order denying his postconviction petition challenging his 1999 sentence for two counts of first-degree criminal sexual conduct, appellant argues that (1) imposition of consecutive sentences exaggerated the criminality of his conduct; (2) the court failed to give substantial and compelling reasons for the consecutive sentencing; and (3) the court erred in imposing a fine not mentioned in the plea agreement. We affirm.
Appellant Isaiah Johnson pleaded guilty to separate counts of criminal sexual conduct in the first degree, for crimes against two separate victims. The plea agreement called for a minimum incarceration period of 120 months and a maximum of 170 months, with fines and restitution left to the district court’s discretion. At sentencing, the court imposed two consecutive 85-month sentences, levied a $5,000 fine, and ordered restitution.
Johnson petitioned for postconviction relief, asking the court to reduce his sentence to the low end of the plea agreement, or, alternatively, to modify his sentence to 162 months, claiming that the imposition of consecutive sentences exaggerated the criminality of his conduct. The postconviction court denied this petition, finding that consecutive sentences were permitted under the sentencing guidelines and did not exaggerate the criminality of his conduct because the record supported an upward departure.
Johnson filed a second petition for postconviction relief, again arguing that the sentence exaggerated the criminality of his conduct. Johnson also argued for the first time that consecutive sentences could not be imposed in a case involving separate victims unless the sentencing court set forth substantial and compelling reasons, and that imposition of the fine was not within the terms of the plea agreement. The postconviction court denied the requested relief, and this appeal followed.
D E C I S I O N
Johnson first argues that the criminality of his conduct was exaggerated by the imposition of the maximum sentence allowed under the plea agreement. The postconviction court rejected this argument noting that this claim had already been raised and denied in the first postconviction proceeding. “The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion.” Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997) (citing Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995)).
Minn. Stat. § 590.04, subd. 3 (2000), “gives the postconviction court discretion as to whether it will consider or summarily deny successive petitions for similar relief.” Perry v. State, 595 N.W.2d 197, 200 (Minn. 1999). Here, with regard to Johnson’s argument that his sentence exaggerates the criminality of his conduct, Johnson’s second postconviction petition is a successive petition seeking relief similar to that denied in his first petition. Therefore, the postconviction court's summary denial was not an abuse of discretion.
Johnson next argues that the district court erred by not providing substantial and compelling reasons for a departure from the sentencing guidelines. “When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure.” State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citation omitted). But here, there has been no departure. The Minnesota Sentencing Guidelines provide that permissive consecutive sentences may be given for “[m]ultiple current felony convictions for crimes against persons.” Minn. Sent. Guidelines II.F.2. See also State v. Lee, 494 N.W.2d 475, 482 (Minn. 1992). The district court did not abuse its discretion in imposing consecutive sentences for appellant’s felony criminal sexual conduct convictions against two different victims. Appellant’s reliance on State v. Misquadace, 629 N.W.2d 487 (Minn. App. 2001), aff’d 644 N.W.2d 65 (Minn. 2002), is misplaced. In Misquadace, the Minnesota Supreme Court held that trial courts are required to find substantial and compelling reasons for a departure even if the sentence is part of a plea bargain. Misquadace, 644 N.W.2d at 71. Because this case does not involve a departure from the sentencing guidelines, Misquadace is inapplicable.
Lastly, Johnson argues that the court erred by imposing a $5,000 fine plus surcharge because “a clear review of the guilty plea petition and transcript of the terms of the plea in fact are silent as to the fine.” But Johnson’s characterization of the record is not accurate. At the plea hearing, the court asked: “Do you understand that any fine or restitution would be up to the Court to decide?” Johnson answered, “Yes.” The $5,000 fine imposed was well below the $40,000 per conviction limit provided in the first-degree criminal sexual conduct statute, Minn. Stat. § 609.342, subd. 2 (1998), at the time of his sentencing and was within the district court’s discretion.
 The underlying facts are not in issue:
In the early morning hours of January 13, 1999, petitioner Isaiah Johnson forced his entry into an apartment occupied by two female students of * * * St. Cloud University, KS and KC. Upon entry into the apartment, petitioner choked, raped, and threatened the lives of both [women]. Petitioner left the apartment after two or three hours. He also stole $70 from one of the [women].
Postconviction court’s March 18, 2002 Memorandum of Law at 1.