This opinion will be unpublished and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
Wright County District Court
File No. K1023948
Mike Hatch, Attorney General, Brent D. Wartner, Assistant Attorney General, Suite 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Thomas N. Kelly, Assistant Wright County Attorney, 10 Second Street Northwest, Buffalo, MN 55313 (for respondent)
John M. Stuart, Minnesota Public Defender, Susan J. Andrews, Assistant State Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Schumacher, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.
Appellant Antron Everett Cooper challenges his sentences for the crimes of conspiracy to commit first-degree controlled-substance crime and three counts of first-degree controlled-substance crime, arguing that the police engaged in sentencing manipulation by setting up additional controlled-substance buys after they had sufficient evidence to arrest him. Appellant also argues that his criminal history score was improperly calculated. We affirm.
I. Sentencing manipulation
“A district court’s exercise of discretion relating to sentencing will be reversed on appeal only if the ‘discretion is not properly exercised and the sentence is unauthorized by law.’” State v. Noggle, 657 N.W.2d 890, 893 (Minn. App. 2003) (citation omitted). The trial court has discretion to modify a sentence when a defendant challenges the fairness of that sentence. State v. Vazquez, 330 N.W.2d 110, 112 (Minn. 1983). Appellant argues that he is the victim of sentencing manipulation, a claim which goes to the number of counts on which there is a conviction as well as the sentence duration. Because appellant’s conviction is the result of a guilty plea, he has waived the right to pursue this claim on appeal. See State v. Ford, 397 N.W.2d 875, 878 (Minn.1986) (stating that guilty plea generally waives Search Term End “all non-jurisdictional defects Search Term End arising prior to the entry of the plea”Search Term End ).
But this court has discretion to address any issue as justice requires. Minn. R. Civ. P. 103.04. With that interest in mind, we will address appellant’s argument that the doctrine of sentencing manipulation should apply to police conduct in this case to reduce sentences imposed after he pleaded guilty to four counts of controlled-substance crime in the first degree.
Appellant was sentenced concurrently to 98 months for the first count, 122 months for count 2, and 144 months each for counts 3 and 4. The sentence is a downward departure from a presumptive guideline sentence of 157 months. “Sentencing manipulation is outrageous government conduct aimed only at increasing a person’s sentence.” State v. Soto, 562 N.W.2d 299, 305 (Minn. 1997). In Soto, the supreme court declined to adopt the doctrine of sentencing manipulation “in the absence of egregious police conduct which goes beyond legitimate investigative purposes.” Id. Therefore, the doctrine of sentencing manipulation has not yet been recognized in Minnesota.
Appellant claims that the government engaged in sentencing manipulation by arranging multiple controlled-drug buys in which he participated, rather than arresting and charging him after the first incident in which he sold cocaine to an undercover police officer, such that he was charged with, and sentenced for, multiple counts of controlled-substance crimes. Appellant argues that the government’s conduct was outrageous because investigators had more than enough evidence to support his conviction of first-degree conspiracy to sell cocaine before the first controlled buy occurred. Appellant contends that even if investigators believed they needed an actual first-degree level sale to finalize the case against appellant, there was no legitimate investigative reason to set up five first-degree level sales.
This case is strikingly similar to Soto, in which an informant and an undercover police officer induced the defendant to sell them cocaine in four separate transactions in a month. Id. at 301-02. Soto was charged and convicted of four counts of sale of cocaine in the first degree. Id. at 302. The trial court sentenced him to concurrent presumptive sentences of 98 months, 122 months, 146 months, and 161 months, for sales of 27 grams, 51 grams, 27 grams, and 279 grams, respectively. Id. at 301-02.
Soto argued on appeal that law enforcement officers had orchestrated the amount of drugs and the number of sales solely to increase the penalty for his crimes. Id. at 304-05. He urged the supreme court to adopt the doctrine of sentencing manipulation and reduce his sentence. Id. But the supreme court expressly declined to adopt the doctrine of sentencing manipulation because there was no evidence that the repeated drug sales were obtained for the sole purpose of increasing Soto’s sentence rather than to establish his guilt or trace his supplier. Id. at 305.
Appellant, like Soto, was convicted of four counts of controlled-substance crime violations. He conspired with others to sell cocaine to an informant and an undercover officer on five occasions in two months, and personally completed the sale on three of those occasions. At each transaction, law enforcement was able to learn more about the appellant’s narcotics-distribution enterprise and the identity of his coconspirators. The search warrant application reflects that law enforcement learned new details about the drug-sale enterprise with each sale completed. There is no evidence that any of the controlled buys were arranged only to increase appellant’s sentence.
The Soto court stated that, “it is reasonable for the police to engage in a chain of transactions with a drug dealer in order to establish that person’s guilt or to trace the dealer’s supplier.” Id. Even if Minnesota recognized the doctrine of sentencing manipulation, the record supports the district court’s rejection of that doctrine in this case based on its finding that it was reasonable under the circumstances for law enforcement authorities to have investigated and charged appellant as they did. Law enforcement engaged in legitimate investigative techniques to gather information on appellant’s narcotics distribution network and there is no evidence to support appellant’s argument of sentencing manipulation.
II. Custody status point for out-of-state conviction
Appellant was assigned one custody status point for a Wisconsin conviction of aggravated battery for which he was on probation in Wisconsin at the time he committed the controlled substance crimes involved in the case before us. Appellant argues that the Wisconsin conviction was a misdemeanor under Minnesota law, and that a custody status point under the Minnesota Sentencing Guidelines was not proper. The district court’s determination of a defendant’s criminal history score will not be reversed absent an abuse of discretion. State v. Stillday, 646 N.W.2d 557, 561 (Minn. App. 2002).
Under the Minnesota Sentencing Guidelines an offender is assigned one custody status point if he was on probation, parole, supervised release, conditional release or prison following conviction of a felony or gross misdemeanor. Minn. Sent. Guidelines. II.B.2. The guidelines further provide that the “designation of out-of-state convictions as felonies, gross misdemeanors, or misdemeanors shall be governed by the offense definitions and sentences provided in Minnesota law.” Id. at II.B.5. The comment to that rule provides that, in determining the weight accorded to foreign jurisdictions, “sentencing courts should consider the nature and definition of the foreign offense, as well as the sentence received by the offender.” Minn. Sent. Guidelines cmt. II.B.504.
Appellant argues that if he had committed the offense in Minnesota, he would have been convicted of fifth-degree assault, which is a misdemeanor, and he would therefore not have received the custody status point. Both the Minnesota and Wisconsin statutes define a misdemeanor-level assault as the infliction of “bodily harm.” See Minn. Stat. § 609.224, subd. 1 (2002), and Wis. Stat. § 940.19(1) (2002). Appellant was convicted of aggravated battery, a Class A misdemeanor in Wisconsin, and received a sentence of two years probation with terms of release. The maximum sentence permitted for a Class A misdemeanor in Wisconsin is a “fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.” Wis. Stat. § 939.51(3)(a) (2002). A gross misdemeanor in Minnesota is defined as any crime not a felony or misdemeanor. Minn. Stat. § 609.02, subd. 4 (2002). The maximum penalty that may be imposed for a gross misdemeanor is a $3,000 fine and a year in jail. Minn. Stat. § 609.02, subds. 2-4 (2002).
And, in Minnesota, a defendant who is convicted of a fifth-degree assault may be subject to a gross-misdemeanor sentence when the defendant meets the criteria for sentencing enhancement under Minn. Stat. § 609.224, subd. 2(a) and (b) (2002), which include an assault on the same domestic-assault victim within five years of a previous “qualified domestic violence-related offense conviction” or a second assault within two years of a “previous qualified domestic violence-related offense conviction.” Appellant had been convicted of a misdemeanor domestic assault in Minnesota eight months prior to his conviction for the similar offense committed in Wisconsin. Therefore, had appellant committed the second offense in Minnesota, the sentencing enhancement provision would apply to appellant, and he would have received a gross misdemeanor sentence. The district court did not abuse its discretion in assigning appellant a custody status point for his Wisconsin conviction.