This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,


Donald Tate,


Filed March 1, 2005

Peterson, Judge

Reversed and remanded


Ramsey County District Court

File No. K2023874



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



Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, St. Paul, MN  55102 (for respondent)



John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)



            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from the sentence imposed for multiple controlled-substance offenses and one racketeering offense, appellant argues that an incorrect criminal-history score improperly extended his sentence.  Appellant also argues that because the drug offenses were committed to facilitate the racketeering offense, they were part of the same behavioral incident, and, therefore, the district court erred by using the Hernandez method to increase his criminal-history score.  We reverse and remand.


            Between July 29, 2002, and August 31, 2002, the St. Paul Police Department conducted a videotaped surveillance operation of undercover controlled-substance purchases in St. Paul.  As a result of the operation, eight individuals, including appellant Donald Tate, were thought to control a criminal enterprise that involved controlled-substance sales.

            Appellant was charged by complaint with (1) three counts of aiding and abetting third-degree controlled-substance crimes for selling cocaine on three separate occasions, once on July 29, 2002, and twice on August 22, 2002; (2) one count of second-degree controlled-substance crime for selling cocaine in a school zone on August 23, 2002; (3) four counts of committing the controlled-substance offenses for the benefit of a gang; and (4) one count of racketeering.

Appellant pleaded guilty to second-degree controlled-substance offense and two counts of third-degree controlled-substance offense and entered an Alford plea on the racketeering count.  In exchange for his pleas, the state agreed to dismiss the remaining counts and recommend an 83-month sentencing cap.

At the sentencing hearing, the district court sentenced appellant to concurrent terms of 54 months for racketeering, 39 months and 45 months for the two third-degree controlled-substance offenses, and 83 months for the second-degree controlled-substance offense.  The remaining counts were dismissed.  Appellant appeals from his sentence.


Appellant argues that the district court incorrectly weighted his prior conviction of first-degree aggravated robbery and, as a result, his sentence was unfairly extended.  The state concedes that the district court erred.

Appellate courts will not interfere with the district court’s exercise of its discretion in sentencing as long as the sentence is authorized by law.  State v. Eaton, 292 N.W.2d 260, 267 (Minn. 1980); see also State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981) (discussing broad discretion accorded to district court in sentencing).  When calculating a criminal-history score, the severity level of the prior-offense conviction in effect at the time the offender commits the current offense determines the weight assigned to the prior felony conviction.  Minn. Sent. Guidelines II.B.1.a.  Here, the district court assigned a weight of two criminal-history points for appellant’s prior first-degree aggravated-robbery conviction.

The record indicates that appellant’s first-degree aggravated-robbery conviction was initially an extended-jurisdiction juvenile (EJJ) matter.  However, appellant’s EJJ status was revoked in April 2003, and appellant was sentenced to a 70-month term, stayed for five years, conditioned on serving 365 days.  EJJ convictions are treated the same as felony convictions.  Minn. Sent. Guidelines II.B.1.  First-degree aggravated robbery is a severity-level VIII offense that the guidelines assign a weight of 1.5 points.  Id. at II.B.1.a, V.  The district court erred when it assigned the conviction two points.

            Appellant also argues that the district court abused its discretion by using the Hernandez method to increase his criminal-history score.  Under the Hernandez method,a district court sentencing a convicted defendant on the same day for multiple convictions based on multiple offenses that were not part of a single behavioral incident or course of conduct may increase the defendant’s criminal-history score incrementally as each successive sentence is imposed.  State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981).  Appellant asserts that his controlled-substance offenses were committed with the intent of facilitating and sustaining the racketeering offense and, therefore, they were part of a single behavioral incident.

Minnesota law prohibits the imposition of multiple sentences, including concurrent sentences, for multiple offenses that arise from a single behavioral incident.  State v. Bookwalter, 541 N.W.2d 290, 293 (Minn. 1995); see Minn. Stat. § 609.035, subd. 1 (2002) (prohibiting same).  “Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of [a] particular case.”  Bookwalter, 541 N.W.2d. at 294.  When an offense is committed with the intent of facilitating another offense or is but a means toward committing another offense, the offenses are part of the same behavioral incident.  State v. Hartfield, 459 N.W.2d 668, 670 (Minn. 1990); see also Bookwalter, 541 N.W.2d at 294 (explaining that when arson is the means by which defendant commits murder, defendant may not be sentenced for both offenses).  To determine whether multiple offenses arose from a single behavioral incident, this court examines whether they were motivated by a single criminal objective and whether they were unified in time and place.  Bookwalter, 541 N.W.2d at 294.

            Appellant entered an Alford plea[1] to racketeering.  “A person is guilty of racketeering if the person . . . is employed by or associated with an enterprise and intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity.”  Minn. Stat. § 609.903, subd. 1(1) (2002).  A “pattern of criminal activity” is defined in relevant part as “conduct constituting three or more criminal acts that . . . are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a single criminal offense.” Minn. Stat. § 609.902, subd. 6(2) (2002).  The criminal acts must be “either: (i) related to one another through a common scheme or plan or a shared criminal purpose or (ii) committed . . . by persons acting with the mental culpability required for the commission of the criminal acts and associated with or in an enterprise involved in those activities.”  Id., subd. 6(3) (2002).

Citing this court’s decision in State v. Huynh, appellant contends that although his three controlled-substance offenses occurred at different times and places, they were part of a pattern of criminal activity used to sustain a narcotics enterprise.  504 N.W.2d 477, 483 (Minn. App. 1993), aff’d 519 N.W.2d 191 (Minn. 1994).

The controlled-substance offenses were a means toward committing the racketeering offense.  See Huynh, 504 N.W.2d at 480, 483 (holding that defendant’s five coercion offenses, occurring in different times and places, were means of sustaining RICO offense and were therefore committed as part of a single behavioral incident).  For that reason, appellant’s controlled-substance offenses and his racketeering offense were part of a single behavioral incident, and multiple sentences were not authorized by section 609.035.  Id. at 483.  As a result, the district court could not lawfully sentence appellant for both racketeering and the controlled-substance offenses under section 609.035.

However, section 609.910 contains an exception from the general prohibition against multiple sentences for offenses committed as part of a single behavioral incident. A criminal penalty imposed for racketeering under section 609.903 “does not preclude the application of any other criminal penalty or civil remedy for the separate criminal acts.” Minn. Stat. § 609.910, subd. 1 (2002). 

            Appellant concedes that section 609.910 permitted the district court to sentence him for the controlled-substance offenses and the racketeering offense, but he argues that using the Hernandez method when sentencing on the separate criminal acts unfairly exaggerated his sentence.  We agree.  “[T]he Hernandez method cannot be used to increase a defendant’s criminal history score unless sentencing for more than one offense is permitted under section 609.035.  Unless section 609.035 authorizes multiple sentencing, use of the Hernandez method unfairly exaggerates the criminality of a defendant’s conduct.”  Huynh, 504 N.W.2d at 484 (citation omitted).  Because sentencing appellant for both racketeering and controlled-substance offenses was permissible under section 609.10, rather than under section 609.035, the district court should not have used the Hernandez method.

            The state contends that only the racketeering offense is subject to the single-behavioral-incident restriction of Huynh and section 609.035 and argues that because each of the controlled-substance offenses was a separate behavioral incident, using the Hernandez method for those offenses was permitted.  The state contends that Huynh is fact specific and that to prohibit criminal-history points to accrue for the underlying controlled-substance offenses would unfairly depreciate the criminality of appellant’s conduct.  We do not interpret the holding in Huynh to be so fact specific.  Both Hartfield and Huynh make clear that “[u]nless section 609.035 authorizes multiple sentencing, use of the Hernandez method unfairly exaggerates the criminality of a defendant’s conduct.”  Huynh, 459 N.W.2d at 484 (citing Hartfield, 459 N.W.2d at 670).  The state’s argument overlooks the fact that the underlying controlled-substance offenses were a means toward committing the racketeering offense and, therefore, were part of a single behavioral incident.  Huynh, 459 N.W.2d at 483 (citing Hartfield, 459 N.W.2d at 670).  Hartfield precludes using the Hernandez method in such circumstances.  Hartfield, 459 N.W.2d at 670.  Accordingly, we reverse appellant’s sentence and remand for re-sentencing.

            Reversed and remanded.

[1] An Alford plea allows a defendant to maintain innocence while conceding that the evidence would support a jury verdict to convict him of the crime charged.  State v. Goulette, 258 N.W.2d 758, 760 (Minn. 1977) (adopting holding of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970)).