may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Eric T. Ballard,
Reversed and remanded
Ramsey County District Court
File No. K6-02-3876
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, Suite 315, St. Paul,
John M. Stuart, State Public
Defender, Cathryn Middlebrook, Assistant Public Defender,
Considered and decided by Schumacher, Presiding Judge; Peterson, Judge; and Wright, Judge;
U N P U B L I S H E D O P I N I O N
In this appeal from a sentence imposed for convictions of one count of third-degree controlled-substance crime, three counts of second-degree controlled-substance crime, and one count of racketeering, appellant argues that the district court erred in using the Hernandez method when sentencing. We reverse and remand.
July 29, 2002, and August 31, 2002, the St. Paul Police Department conducted a
surveillance operation of controlled-substance purchases in
Appellant pleaded guilty to one count of third-degree controlled-substance crime, three counts of second-degree controlled-substance crime, and the racketeering count. In exchange for his pleas, the state agreed to dismiss the remaining counts and recommend a 90-month sentencing cap.
The district court sentenced appellant to 21 months on the third-degree controlled substance crime and to concurrent terms of 58 months, 78 months, and 88 months for the three second-degree controlled-substance crimes. The 21-month sentence was based on a criminal-history score of zero, and the criminal-history points for each offense were added to appellant’s criminal-history score to determine the sentence for the next offense. After imposing the sentences for the controlled-substance crimes, the district court imposed a concurrent 21-month sentence for the racketeering offense. This sentence was based on a criminal-history score of zero. The remaining counts in the complaint were dismissed.
argues that the district court impermissibly used the Hernandez method
to calculate his criminal-history score when sentencing. Under the Hernandez method,a
district court sentencing a convicted defendant on one day for multiple
offenses that were not part of a single behavioral incident and that occurred
at different times and involved different victims may increase the defendant’s
criminal-history score for each offense before sentencing the next offense. State v. Hernandez, 311 N.W.2d 478,
courts will not interfere with the district court’s exercise of its discretion
in applying the sentencing guidelines. State
v. Back, 341 N.W.2d 273, 275 (
is a statutory exception from the rule set forth in section 609.035 that
applies to a person who is sentenced for a racketeering conviction. A sentence for a racketeering conviction
under Minn. Stat. § 609.903 “does not preclude the application of any other
criminal penalty . . . for the separate criminal acts.”
supreme court addressed a similar sentencing issue in State v. Hartfield,
459 N.W.2d 668 (
In State v. Huynh, 504 N.W.2d 477, 483
(Minn. App. 1993), aff’d 519 N.W.2d 191 (Minn. 1994), this court applied
the supreme court’s reasoning in Hartfield
to a defendant who received separate sentences under the Hernandez method for five coercion offenses and one racketeering
offense. This court recognized that
although section 609.035 precluded sentencing for the coercion offenses and the
racketeering offense, section 609.910 permitted sentencing for all of the
Under Huynh, the Hernandez method should not have been used when sentencing appellant if appellant’s controlled-substance offenses and his racketeering offense were part of a single behavioral incident. “Whether multiple offenses arose out of a single behavioral incident depends on the facts and circumstances of the 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. Hartfield, 459 N.W.2d at 670; 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 pleaded guilty to
racketeering. “A person is guilty of
racketeering if the person: (1) 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 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 also 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.”
Appellant contends that although his controlled-substance offenses occurred at different places and times, they were motivated by and committed to sustain the narcotics enterprise, and the racketeering offense could not have been sustained without the controlled-substance offenses. Therefore, appellant argues, his conduct constituted a single behavioral incident. We agree.
The controlled-substance offenses were committed with the intent of maintaining the narcotics enterprise and were the means of committing the racketeering offense. See Huynh, 504 N.W.2d at 483 (defendant’s five coercion offenses, which occurred at different times and places, were means of sustaining racketeering enterprise and means toward committing racketeering offense, and, therefore, were part of a single behavioral incident). Therefore, appellant’s controlled-substance offenses and his racketeering offense were parts of a single behavioral incident, and multiple sentences were not authorized by section 609.035. See id. at 483. Because multiple sentences were not authorized by section 609.035, the Hernandez method should not have been used in sentencing. We, therefore, reverse appellant’s sentence and remand for resentencing.
Reversed and remanded.