This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Robert Alan Anderson,
Filed June 15, 2004
and remanded; motion denied
Cass County District Court
File No. K9-02-1319
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Earl E. Maus, Cass County Attorney, Cass County Courthouse, P.O. Box 3000, Walker, MN 56484 (for respondent)
Lisa Lodin Peralta, Uptown Business Center, 3009 Holmes Avenue South, Minneapolis, MN 55408 (for appellant)
Considered and decided by Hudson, Presiding Judge, Klaphake, Judge, and Crippen, Judge.
Appellant Robert Anderson, who pleaded guilty to second-degree manslaughter, contends that the district court abused its discretion by basing an upward durational sentencing departure on the negotiated sentence agreed to in his plea agreement. Respondent State of Minnesota argues that the district court merely made an inadequate statement of reasons for departure and that the case should be remanded so that proper reasons can be considered. Because respondent’s argument conflicts with established law, we reverse and remand for imposition of the presumptive guidelines sentence.
Appellant stabbed his brother to death in the course of an argument on November 23, 2002. Appellant was charged with one count of second-degree murder in violation of Minn. Stat. §§ 609.19, subd. 2(1), .222 (2002), and one count of first-degree manslaughter in violation of Minn. Stat. § 609.20(1) (2002). A trial held during May 2003 resulted in a hung jury. Following the trial, appellant agreed to plead guilty to second-degree manslaughter in violation of Minn. Stat. § 609.205(1) (2002) in exchange for the state dropping the two original charges. The plea agreement provided that appellant would be committed to the commissioner of corrections for 60 months. The presumptive sentence under the guidelines for a violation of Minn. Stat. § 609.205(1) is 48 months. Minn. Sent. Guidelines IV. The plea petition did not state any reasons for the upward durational departure in the sentence.
In September 2003, the district court sentenced appellant to 60 months in prison, as agreed to in the plea agreement. At the sentencing hearing, the court stated that it was basing the departure “on the recommendations of both parties and on the plea agreement.” The “Reasons for Departure” portion of the sentencing order’s departure report reads only “[s]ee partial transcript of sentencing hearing.” Appellant filed this appeal challenging the departure from the presumptive sentence. Appellant also filed a motion asking this court to strike certain portions of the state’s brief on the ground that they refer to evidence that is not part of the record on appeal.
D E C I S I O N
Appellant argues that the district court abused its discretion in sentencing because it failed to make findings of fact establishing substantial and compelling reasons for an upward departure. A district court may depart from the presumptive sentence if substantial and compelling circumstances are present. State v. Zeigler, 356 N.W.2d 736, 737 (Minn. App. 1984). “Substantial and compelling circumstances are those circumstances that make the facts of a particular case different from a typical case.” State v. Peake, 366 N.W.2d 299, 301 (Minn. 1985). “When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.” Minn. Sent. Guidelines II.D. For felony convictions, the district court must state, on the record, findings of fact as to the reasons for departure, and the reasons for departure must either be stated in a sentencing order or recorded in the departure report. Minn. R. Crim. P. 27.03, subd. 4(C). A district court’s decision to depart from the sentencing guidelines will not be reversed on appeal absent an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).
Appellant contends that, because the district court did not state lawful reasons for departure on the record, the case must be remanded for re-sentencing and the district court must then impose the presumptive sentence. The state pleads that, although the reasons for departure stated by the district court do not support the departure, the proper remedy is to either affirm the departure on alternative grounds apparent from the record or to remand the case to allow the court the opportunity to make further findings of fact that will support the departure.
In Williams v. State, the supreme court adopted five rules pertaining to sentencing departures. 361 N.W.2d 840, 844 (Minn. 1985). Specifically, the court stated:
1. If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.
2. If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.
3. If the reasons given justify the departure, the departure will be allowed.
4. If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.
5. If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.
Id. In a recent opinion, the supreme court reaffirmed Williams while clarifying, with reference to the first of the Williams rules, that if the district court fails to state the reasons for departure on the record, other than the occurrence of a plea agreement, remand to the district court for another opportunity to state the reasons for departure is not the proper remedy. See State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003). The case must instead be remanded for imposition of the presumptive sentence. Id.
Here, the district court stated that it was basing the departure “on the recommendations of both parties and on the plea agreement.” The state argues that, by stating that the plea agreement was the basis for the departure, the district court did not fail to state reasons for the departure but instead merely stated inadequate reasons. Therefore, the state pleads, this court should either affirm the departure under the fourth Williams rule, if we find sufficient reasons for departure in the record, or remand the case and let the district court review the record for alternative reasons justifying the departure.
But it is evident under the law that a plea agreement that includes an agreed-on departure in sentencing, although a vital part of the criminal process, does not constitute a reason for departure from a presumptive sentence. State v. Misquadace, 644 N.W.2d 65, 71-72 (Minn. 2002); see also Minn. Stat. § 244.09, subd. 5(2) (2002) (rejecting view that guidelines sentencing standards are a “right” that can be waived); Minn. Sent. Guidelines cmt. II.D.04 (requiring court to state reasons for departure that underlie plea agreement). In light of Misquadace, the district court’s statement that it was relying on the plea agreement as a basis for departure is a failure to adequately state reasons for departure. The case comes squarely within the first rule of Williams and the supreme court’s holding in Geller. Honoring appellant’s plea would diminish the clear impact of Misquadace and Geller. There is no merit in the state’s argument that the district court stated reasons for the departure but that the stated circumstances were merely inadequate.
Because appellant’s motion to strike has no effect on our decision, the motion is denied. The sentencing order is reversed and the case is remanded to the district court for imposition of the presumptive sentence.
Reversed and remanded; motion denied.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.