This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,


Lamar Michael Hutton,



Filed December 9, 2003

Reversed and remanded

Minge, Judge



Stearns County District Court

File No. K2024113


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Janelle P. Kendall, Stearns County Attorney, Will R. Brost, Assistant County Attorney, 705 Courthouse Square, Administration Center, Room 448, St. Cloud, MN 56303-4701 (for respondent)


John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.


U N P U B L I S H E D  O P I N I O N

MINGE, Judge


            Appellant challenges the upward durational departure in his sentence for theft of a motor vehicle.  Appellant claims the district court gave inadequate reasons for the departure from the presumptive sentence under the Minnesota Sentencing Guidelines and failed to give him notice that it was considering an upward departure.  Because the reasons were not compelling and substantial and because notice of an upward departure is required by the Minnesota Rules of Criminal Procedure, we reverse and remand for imposition of the presumptive sentence.



The first issue is whether adequate reasons were given for the upward departure from the presumptive sentence.  The presumptive sentences in the sentencing guidelines are presumed appropriate and should be followed unless the particular case involves “substantial and compelling circumstances.”  State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981); Minn. Sent. Guidelines II.D.  When substantial and compelling circumstances are present, a district court has discretion to depart from the presumptive sentence and will not be reversed on appeal absent an abuse of discretion.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996).  When a district court does depart from the sentencing guidelines, it must articulate the substantial and compelling reasons justifying the departure.  State v. Schmit, 601 N.W.2d 896, 898  (Minn. 1999). 

The district court sentenced appellant to 33 months, with execution stayed, an upward departure from the presumptive sentence of 17 months.  The court cited three reasons to support its upward departure: appellant had little chance of success on probation; appellant represented a danger to public safety; and the offense was far more serious than a normal automobile theft. 

A.        Amenability to probation and threat to public safety

The district court departed from the presumptive sentence based, in part, on appellant’s lack of amenability to probation and his threat to public safety.  While the offender-related factor of unamenability to probation justifies a dispositional departure, it cannot support an upward durational departure.  State v. Behl, 573 N.W.2d 711, 713 (Minn. App. 1998), review denied (Minn. Mar. 19, 1998).  Posing a threat to public safety is also an offender-related factor that does not bear on a decision to depart durationally.  State v. Ott, 341 N.W.2d 883, 884 (Minn. 1984).  The state concedes that neither of these factors should have been considered.  The district court’s reliance on these two factors was therefore inappropriate.

B.        Seriousness of offense

            A sentencing court may depart durationally when the defendant’s conduct was significantly more serious than that typically involved in the commission of the crime in question.  State v. Broten, 343 N.W.2d 38, 41 (Minn. 1984).  Durational departures are also justified when the conduct underlying the offense represents a greater than normal danger to the safety of other people.  State v. McClay, 310 N.W.2d 683, 685 (Minn. 1981).  When making this determination, the court may not consider evidence that suggests the defendant’s guilt of some other offense but does not support the conclusion that the defendant committed the offense in question in a more egregious way.  Broten, 343 N.W.2d at 41.

The district court did not explain its finding that the theft of the car was more serious than the normal automobile theft.  If reasons for a departure stated on the record are improper or inadequate, the reviewing court will affirm the departure if the record contains compelling and substantial reasons to support the departure.  State v. Sanchez-Sanchez, 654 N.W.2d 690, 694 (Minn. App. 2002).   

The record in this case indicates that the appellant witnessed the stabbing of the victim, stole the victim’s car, and left the scene.  As the state notes, failure to summon medical assistance is an aggravating factor that the court can consider in evaluating whether the crime in question is more serious than the typical crime.  State v. Copeland, 656 N.W.2d 599, 603-04 (Minn. App. 2003), review denied (Minn. Apr. 29, 2003).  But, here the victim of the stabbing was terrified and ran from the scene, appellant could not have summoned help.  In addition, the supreme court has noted that the accused’s flight from the scene is not a permissible aggravating factor.  State v. Williams, 608 N.W.2d 837, 841 n.8 (Minn. 2000).  The state also argues that the damage to the car caused by the subsequent car accident justifies the finding that the theft was more serious than the typical car theft.  The record, however, does not establish who was at fault in the accident or the extent of the damage.  Therefore, the damage to the car does not aggravate the offense in this case. 

One aspect of this case that may have been considered in the upward departure is the stabbing that occurred immediately before the theft of the car.  Appellant denied any involvement in the stabbing and was acquitted of that charge.  Where a defendant pleads guilty to an offense, the district court ordinarily may not base an upward durational departure on evidence indicating that the defendant could have been convicted of a greater offense.  State v. Simon, 520 N.W.2d 393, 394 (Minn. 1994); State v. Cox, 343 N.W.2d 641, 644 (Minn. 1984).   “It is one thing for the sentencing court to look at the conduct underlying the offense to which the defendant pled guilty if the defendant admits that the underlying conduct occurred, but it is quite another thing when the defendant denies that such conduct occurred.”  State v. Womack, 319 N.W.2d 17, 19 (Minn. 1982).  The supreme court ruled that at the sentencing stage the district court may not act as a factfinder and determine whether the defendant is telling the truth as to his involvement in the other crime.  Id. at 20. 

While the Simon, Cox, and Womack cases involve plea agreements, their analysis applies to sentencing when the accused is convicted of one offense and acquitted of another.  The problem is the inappropriate “ratcheting up” of a sentence by associating the accused with a crime of which he has been acquitted.  Allowing the district court to use the events of the stabbing in this case to justify an upward departure would allow appellant’s acquittal to be circumvented and would punish him for a crime for which he was found not guilty.  Thus, to the extent the district court considered the stabbing as an aggravating factor, its upward departure was improper.

The guidelines list a number of aggravating factors that may be used to justify an upward departure.  Minn. Sent. Guidelines II.D.2(b).  But, none of them applies in this case. 

Thus, not only did the district court not provide an adequate explanation for departing from the presumptive sentence, but our review of the record and of the reasons urged by the state on appeal does not provide a substantial and compelling basis for an upward departure.  On remand, the appellant should be sentenced to the presumptive sentence of 17 months.


The second issue is whether the district court erred as a matter of law when it failed to give appellant notice of its intention to depart from the guidelines.  If facts at trial cause the district court to consider departing from the presumed sentence, the rules require that defense counsel be advised of the possibility.  Minn. R. Crim. P. 27.03, subds. 1(A)(4), 1(C).   The purpose of notification is to enable defense counsel to present arguments against such departure.  See Lankford v. Idaho, 500 U.S. 110, 122-124, 111   S. Ct. 1723, 1730-1731 (1991).  This court reviews de novo a sentencing court’s compliance with this rule.  State v. Bock, 490 N.W.2d 116, 122 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992).  But noncompliance with this rule does not warrant reversal absent prejudice.  Id.  In Bock, the court found that there was no prejudice in a similar situation because the appellant made no objection to the district court’s lack of notice and the appellant was on notice because the state had filed a motion for an upward departure two months prior to the sentencing hearing.  Id

In this case the district court did not advise appellant or his counsel that it was considering an upward departure from the guidelines.  Further, the record does not indicate that the state made a motion for an upward departure.

The presentence investigation report in this case recommended that the court stay execution and place appellant on probation from zero to five years.  At the sentencing hearing appellant and the state were allowed to discuss the presentence investigation report with the court.  Appellant’s counsel recommended that the court impose the presumptive sentence and noted his objections to aspects of the recommendations.  But, appellant did not know the district court was considering an upward departure or why.  This lack of notice appears to have been prejudicial.  Appellant has appealed the use of the three factors the district court considered, and the arguments against using these factors are persuasive.  Appellant presumably would have presented those same arguments to the district court had he had notice of the court’s intention to depart.  Because the use of the factors was inappropriate, the district court might have sentenced appellant differently.  Therefore, because lack of notice appears to have been prejudicial, the upward durational departure in the sentence is also reversed for lack of compliance with Minn. R. Crim. P. 27.03.  As previously stated, the matter is remanded for imposition of the presumptive stayed sentence of 17 months. 

            Reversed and remanded.