This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Wesley Eugene Brooks, petitioner,
Filed January 10, 2006
Reversed and remanded
Rice County District Court
File No. C9-04-1692
F. Clayton Tyler,
Mike Hatch, Attorney General, James B. Early, Assistant
Attorney General, 1800
Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 Northwest 3rd Street, Faribault, MN 55021 (for respondent)
Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.
Appellant challenges the district court’s denial of his petition for postconviction relief, arguing that there is insufficient evidence in the record to support an upward departure based on the career-offender statute. In addition, he claims that the sentencing court failed to articulate a reason on the record to support an upward departure, and, as a result, this court should not allow a departure on remand. Because there is no evidence in the record proving that appellant is a career offender and because the sentencing court did not state a reason to support the upward departure, we reverse and remand for imposition of the presumptive sentence.
Appellant Wesley Brooks was charged with racketeering, two counts of conspiracy to commit first-degree controlled-substance crime, introduction of contraband into correctional facility, conspiracy, third-degree controlled-substance crime, fourth-degree controlled-substance crime, and fifth-degree controlled-substance crime. Appellant pleaded guilty to the fifth-degree controlled-substance charge, agreeing to be sentenced as a career offender in exchange for the dismissal of the remaining charges.
After appellant pleaded guilty, the district court moved immediately to sentencing. It did not order a presentence investigation or a sentencing worksheet. The parties made sentencing arguments, but both parties agreed that the district court would sentence appellant as a career offender, and appellant stipulated that he had five prior felonies. The crux of the parties’ disagreement during the sentencing hearing was whether the sentence would run consecutively or concurrently with the sentence appellant was then serving. (Appellant has since been released from the custody of the Commissioner of Corrections for that conviction and is currently serving a supervised-release term.)
The district court imposed an executed sentence of 54 months to run concurrently with appellant’s then-existing sentence. In so doing, the district court referenced defense counsel’s statement that the parties agreed that the court would sentence appellant as a career offender, but that the contested issue was whether the court would impose the sentence consecutively or concurrently. The district court never explicitly stated that it was imposing the sentence under the career-offender statute or that the sentence constituted an upward departure.
did not challenge his conviction or sentence on direct appeal. One year later, appellant filed a petition
for postconviction relief, asserting that Blakely
v. Washington, 542
The district court, in its memorandum denying appellant’s postconviction petition, stated that it had adopted the parties’ agreement to sentence appellant as a career offender. The district court found that, even if the reasons given during sentencing were improper or inadequate, there was sufficient evidence in the record to support the departure. In addition, it found that Blakely did not apply to appellant’s sentence and that appellant did not meet his burden of proof that his counsel provided ineffective assistance as set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). This appeal follows.
courts “review a postconviction court’s findings to determine whether there is
sufficient evidentiary support in the record.”
Dukes v. State, 621 N.W.2d
246, 251 (
Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a Sentencing Guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
term “prior conviction” for purposes of the career-offender statute means “a
conviction that occurred before the offender committed the next felony
resulting in a conviction and before the offense for which the offender is
[currently] being sentenced.”
a district court decides to depart from the sentencing guidelines, “it must
articulate substantial and compelling reasons” on the record justifying its
action. State v. Heath, 685 N.W.2d 48, 62 (
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 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.
Williams v. State, 361 N.W.2d 840, 844 (
Here, the postconviction court applied the fourth rule from Williams and stated that “the reason for the departure is documented in the sentencing transcript by both parties and adopted by the Court.” The postconviction court found that the parties had agreed that the career-offender statute applied to appellant and that “the Court need not make verbatim repetition of consistent agreements between the opposing part[ies].” But in this case, we conclude that there is not sufficient evidence in the record to support sentencing appellant as a career offender.
Although the parties agreed, during the sentencing hearing, that the district court would sentence appellant under the career-offender statute, the district court never explicitly stated that it was doing so. It did state in its memorandum denying appellant’s postconviction petition that it “made reference to the defense counsel’s argument.” Defense counsel had previously stated that the parties agreed that the court would sentence appellant as a career offender and that the only issue was whether the district court would impose the sentence consecutively or concurrently with appellant’s then-existing sentence. The district court then stated that defense counsel had articulated just what it had been pondering: whether appellant’s sentence should run consecutively or concurrently with the sentence appellant was already serving, thus implying, but never explicitly stating, that it was adopting the parties’ agreement as to appellant’s status as a career offender.
the district court’s memorandum denying appellant’s postconviction petition, it
stated that the ground for the departure was the agreement of the parties. But the agreement of the parties is not a
valid departure ground. State v. Misquadace, 644 N.W.2d 65 (
First, there is no evidence in the record proving that appellant has prior convictions. Appellant committed the instant offense while incarcerated, so he clearly has prior convictions, but there is no evidence to establish what those convictions were for or when they were committed. While the district court imposed appellant’s sentence to run concurrently with the state sentence that he was then serving, it was apparently unaware that appellant was also serving a federal sentence at that time. Thus, the district court clearly did not have the information it needed to make this decision.
Appellant pleaded guilty, and the district court moved immediately to sentencing. The district court did not order a presentence investigation or utilize any other method for determining appellant’s criminal history. Instead, the district court took the parties, including appellant, at their word that appellant had the requisite five prior felonies. This is in violation of Minn. Stat. § 609.115, subd. 1(a) (2004), which mandates that
when the defendant has been convicted of a felony, the court shall, before sentence is imposed, cause a presentence investigation and written report to be made to the court concerning the defendant’s individual characteristics, circumstances, needs, potentialities, criminal record and social history, the circumstances of the offense and the harm caused by it to others and to the community.
(Emphasis added.) In addition to the statute, Minn. R. Crim. P.
27.03, subd. 1, requires that the probation department complete a sentencing
worksheet prior to the sentencing hearing.
Moreover, this court has previously addressed the issue of sentencing a
defendant prior to completing a presentence investigation. State
v. Rock, 380 N.W.2d 211, 213 (
These stipulations cannot be the basis for a sentence under the career-offender statute because the district court must find that each conviction qualifies as a prior conviction under the statute. To qualify, appellant must have committed an offense and been convicted and sentenced before committing the next offense. Minn. Stat. § 609.1095, subd. 1(c) (2004). Thus, even if accurate, the fact that appellant has five prior felony convictions is not a sufficient basis in and of itself.
Second, the district court did not find that appellant’s current offense is part of a pattern of criminal conduct. The state argues that a pattern was established because defense counsel stipulated that the district court would sentence appellant under that statute and the statute requires a finding of a pattern of criminal conduct and because the court asked appellant during sentencing if he was currently incarcerated for drug-related offenses. But a stipulation that appellant qualifies as a career offender or the fact that he is currently serving a prison term for a drug offense does not prove that a pattern of criminal conduct exists. The state must prove, and the district court must find, that appellant committed the current offense as part of a pattern, i.e., with similar “motive[s], purpose[s], results, participants, victims, or other shared circumstances” as previous offenses. Gorman, 546 N.W.2d at 9. That never occurred.
Therefore, the district court abused its discretion by relying solely on the parties’ stipulations as a reason for an upward departure and by determining that there were sufficient reasons in the record to support appellant’s sentence.
argues that if this court remands the case, the district court must impose the
presumptive sentence of one year and one day consecutive to the sentence appellant
was serving when the district court initially sentenced him. In support of that proposition, appellant
cites State v. Geller, 665 N.W.2d 514
Geller, the district court imposed
consecutive sentences, including an upward durational departure on the second
sentence. 665 N.W.2d at 515. But the district court failed to articulate
any reasons for the upward departure.
months before Geller, the supreme
court issued State v. Lewis, 656
N.W.2d 535 (
read Misquadace too narrowly. Misquadace did not specifically address the question whether the district court, on remand, can reconsider the conviction component of a plea agreement if it finds no grounds for departure from the sentencing guidelines on the sentencing component of the same plea agreement. We agree with the state’s argument that these two components are interrelated and that the district court should be free to consider the effect that changes in the sentence have on the entire plea agreement.
Here, the sentencing court did not state a reason supporting the upward departure. A postconviction court cannot state reasons on the record that it did not state at sentencing in order to validate a defendant’s sentence. Therefore, under the first Williams rule, when the district court fails to state a reason on the record for a departure no departure will be allowed. Consequently, we reverse and remand for imposition of the presumptive sentence.
Reversed and remanded.