This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Bradford Allen Cornell,
Olmsted County District Court
File No. K0013985
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Raymond F. Schmitz, Olmsted County Attorney, Scott A. Buhler, Senior Assistant County Attorney, Government Center, 151 4th Street S.E., Rochester, MN 55904-3710 (for appellant)
John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for respondent)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant State of Minnesota challenges the trial court’s decision to sentence on only four of the six felony counts to which respondent pleaded guilty. Because the trial court erred under State v. Hoelzel, 639 N.W.2d 605, 609 (Minn. 2002), we reverse and remand.
Respondent Bradford Cornell was charged with 36 felony charges arising out of conduct that occurred when Cornell, his roommate Harkamal Singh, and several others attempted to retrieve approximately 18 pounds of marijuana that had been stolen from Cornell and Singh’s residence. Cornell pleaded guilty to the following six counts: Count 1 (aggravated robbery in the first degree — R.C.L. as the victim), count 2 (kidnapping — R.C.L. as the victim), count 5 (burglary in the first degree — R.C.L.’s residence), count 7 (kidnapping — T.P.D. as the victim), count 19 (conspiracy to commit a controlled-substance crime in the third degree), and count 26 (solicitation of a juvenile). The trial court accepted all six of Cornell’s guilty pleas.
The terms of the guilty plea mandated that (1) the remaining 30 counts would be dismissed; (2) Cornell would receive concurrent sentences; (3) Cornell would be sentenced within the presumptive-guideline range of 84 to 88 months; (4) either party could withdraw from the plea agreement if the court sentenced outside of the terms; and (5) the state would recommend that Cornell be required to (a) provide a biological specimen for DNA testing, (b) have no contact with the victims, and (c) pay the $50 mandatory non-waivable fine in addition to the applicable surcharge and law-library fee.
The trial court sentenced Cornell to concurrent terms of 36 months on count 19 (third-degree conspiracy to commit a controlled-substance crime), 36 months on count 7 (kidnapping — T.P.D.), 84 months on count 5 (first-degree burglary), and 84 months on count 1 (first-degree aggravated robbery). The court chose not to sentence on count 2 (kidnapping — R.C.L.) or count 26 (solicitation of a juvenile). When asked for his rationale for not sentencing on two of the counts, the court responded:
I’m just not going to. I believe it’s within my inherent authority not to. I think he’s picked up, how many criminal history points do we have now? Four? I think that will follow Mr. Cornell for a number of years and if he gets in any more trouble, he’ll have a sufficient criminal background to call for rather substantial prison terms in the future. So I think it’s unnecessary. Okay.
Thereafter, the court filed a sentencing order, noting that count 7 (kidnapping — T.P.D.) was a lesser-included offense of count 2 (kidnapping — R.C.L.) and that count 26 (solicitation of a juvenile) was a lesser-included offense of count 19 (third-degree conspiracy to commit a controlled-substance crime). The state had agreed to treat count 26 (solicitation of a juvenile) as a lesser-included offense of count 19 (conspiracy to commit a controlled-substance crime) so as not to increase Cornell’s criminal-history score, but did not agree that sentencing on the two counts would be eliminated. When the trial court failed to sentence Cornell on counts 2 and 26, the state brought a writ of mandamus to compel the trial court to impose sentences for the remaining two offenses. By order, this court concluded that, while the state has a right to appeal the sentence, mandamus may not be used as a substitute for appeal. State v. Cornell, No. C7-02-1574 (Minn. App. Oct. 8, 2002) (order). This appeal follows.
D E C I S I O N
This court will reverse a trial court’s sentencing decisions only for a clear abuse of discretion. State v. Lattimer, 624 N.W.2d 284, 290 (Minn. App. 2001), review denied (Minn. May 15, 2001). But legal issues that arise in the sentencing context are reviewed de novo. State v. Myers, 627 N.W.2d 58, 62 (Minn. 2001).
The state argues that the trial court erred in refusing to sentence on two of Cornell’s convictions. In determining the court’s role in sentencing, it is important to consider that it is generally the legislature’s function to establish the punishment for offenses. State v. Olson, 325 N.W.2d 13, 17-18 (Minn. 1982). The role of the court is to impose sentences within the limits constructed by the legislature. Id. at 18. In reviewing this matter, we look to State v. Hoelzel, 639 N.W.2d 605 (Minn. 2002), for guidance.
In Hoelzel, the defendant was found guilty of first-degree felony burglary and gross misdemeanor interference with an emergency call. Id. at 606. The trial court stayed imposition of the sentence for the gross misdemeanor and stated that it would not sentence for the burglary because, although the state had satisfied its technical burden of proof under the statute, the court did not regard the defendant ex-husband as a burglar. Id. at 607-08. In addition, the trial court believed that the conditions of probation associated with the gross-misdemeanor sentence would serve to appropriately restrict the defendant’s behavior. Id. at 608.
Both the state and this court characterized the district court’s actions as the functional equivalent of a stay of adjudication. Id. In a case of first impression, the supreme court rejected that characterization in the absence of any such indication on the record by the district court. Id. at 609. The supreme court held that the district court is required to enter a final disposition reflecting the action performed. Id. at 611. The supreme court did not conclude that the district court must provide a sentence, but listed the options available to the court at the conclusion of a criminal trial:
(1) finding of not guilty with judgment of acquittal entered accordingly; (2) finding the defendant otherwise entitled to discharge with judgment entered accordingly; (3) finding of guilty with judgment of conviction entered accordingly; (4) retaining of unadjudicated convictions under section 609.04; or (5) issuing a stay of adjudication by statute or under State v. Krotzer, 548 N.W.2d 252 (Minn. 1996), with final disposition entered on the record accordingly.
Id. Because the district court in Hoelzel failed to make a final disposition as required by law, the supreme court reversed and remanded for the court to make a final disposition with respect to the burglary count. Id.
Here, the record provides no basis to believe that the trial court ordered a stay of adjudication. A “failure to take action does not amount to a stay of adjudication,” and “[i]n the absence of some indication on the record that the court intended to stay adjudication, we will not presume” that intention. Hoelzel, 639 N.W.2d at 609. While the court stated that “it’s within my inherent authority not to” sentence respondent, the court never made any findings of the special circumstances that would warrant a stay of adjudication. See Angotti, 633 N.W.2d at 557 (stating that no special circumstances exist making a stay of adjudication necessary for the furtherance of justice where defendant could lose his business because his conviction would make him unable to obtain contracts); Ohrt, 619 N.W.2d at 792 (noting that a lack of a criminal record and amenability to probation are not “special circumstances” supporting a stay of adjudication). Moreover, the record does not reveal any special circumstances that would support a stay of adjudication.
Under Minn. Stat. § 609.04, subd. 1 (2000), a person “may be convicted of either the crime charged or an included offense, but not both.” An included offense may be:
(1) A lesser degree of the same crime; or
(2) An attempt to commit the crime charged; or
(3) An attempt to commit a lesser degree of the same crime; or
(4) A crime necessarily proved if the crime charged were proved; or
(5) A petty misdemeanor necessarily proved if the misdemeanor charge were proved.
As part of the negotiations with Cornell, the state agreed to treat count 26 (solicitation of a juvenile) as a lesser-included offense of count 19 (conspiracy to commit controlled-substance crime) so as not to increase Cornell’s criminal-history score. The trial court has no authority to disregard an offender’s criminal-history points. See State v. Reece, 625 N.W.2d 822, 824-26 (Minn. 2001). The agreement of the parties does not confer such authority. In any event, despite the agreement, solicitation of a juvenile to commit a felony is not a lesser-included offense of conspiracy to commit a controlled-substance crime, which does not require a juvenile co-conspirator. Even if it were a lesser-included offense, under Minn. Stat. § 609.494, subd. 3 (2000), a conviction of solicitation of a juvenile “is not a bar to conviction of or punishment for any other crime committed by the defendant as part of the same conduct.” Minn. Stat. § 609.494, subd. 3 (2000), would have allowed a separate sentence, as well as a separate conviction.
As for the kidnapping charge, Cornell does not dispute that, as a matter of law, count 7 (kidnapping — T.P.D.) is not a lesser-included offense of count 2 (kidnapping — R.C.L.). Moreover, under Minn. Stat. §§ 609.251, .585 (2000), convictions of kidnapping or burglary do not bar sentencing on a crime committed as part of the same conduct. Therefore, if the court’s sole ground for choosing not to sentence, or the sole ground found in the law for choosing not to sentence, was based on findings of lesser-included offenses, then the ground is improper and the case should be remanded.
As an additional basis for his argument, Cornell asserts that the trial court has the inherent authority not to sentence a defendant and that the court’s decision not to impose a meaningless sentence was within its inherent authority. The doctrine of inherent judicial power is present in almost every American jurisdiction. In re Clerk of Court’s Compensation for Lyon County, 308 Minn. 172, 177, 241 N.W.2d 781, 784 (1976). Inherent judicial power stems from the constitutional separation of power and includes authority needed to decide cases. Id. at 180, 241 N.W.2d at 786. But these powers have limits.
For example, as previously noted, while a court has the discretion to stay adjudication, it must provide adequate reasons for its action that are substantial and compelling. Angotti, 633 N.W.2d at 556. Similarly, a court must provide reasons for departing from the sentencing guidelines for durational and dispositional departures. Id. The power to dismiss is another example of the court’s power of discretion limited by the necessity of providing adequate reasons. City of St. Paul v. Landreville, 301 Minn. 43, 47, 221 N.W.2d 532, 534 (1974). Here, the trial court’s comments suggest that it chose not to sentence because it might exaggerate Cornell’s criminal wrongdoing and because the additional sentences would not lengthen the time of Cornell’s confinement. But while the courts have certain inherent powers, they do not apply to a decision not to sentence. Because the trial court erred in declining to sentence on each of the six felony counts to which Cornell pleaded guilty, we reverse and remand.
Reversed and remanded.
 The parties acknowledge that the imposition of concurrent sentences as contemplated by the plea agreement would not increase Cornell’s total sentence or his future criminal-history score.