This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Filed April 10, 2007
Reversed and remanded
Hennepin County District Court
File No. 01069845
Lori Swanson, Attorney General, 1800
Mike Freeman, Hennepin County Attorney, Linda K. Jenny,
Assistant County Attorney, C-2000 Government Center,
Colbert, Legal Assistance to Minnesota Prisoners, George S. Pappas,
Certified Student Attorney, 875 Summit Avenue, Room 254, St. Paul,
MN 55105 (for appellant)
Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Chaka Smith pleaded guilty in 2002 to second-degree felony murder. Based on a plea agreement, the district court imposed a 240-month sentence, which included an upward departure of 90 months. Almost four years after the sentence, Smith filed a petition for postconviction relief arguing that the upward departure was not justified and requesting the mid-range presumptive sentence of 150 months. The district court denied the petition. Because no aggravating factors justify a departure and the petition was not time-barred, we reverse and remand.
F A C T S
During the plea hearing, Smith described his role in the murder. When Smith finished work at about 10:30 p.m., he went to his brother’s apartment. The brother informed Smith that Holder was coming to the apartment and that he wanted to “beat up” Holder. As his brother instructed, Smith made sure that nobody else arrived with Holder and then Smith hid in the bathroom. After his brother began to fight with Holder in a bedroom, Smith came out of hiding and blocked the bedroom door so that Holder could not get out. Smith’s brother then shot Holder. As Holder begged for his life, Smith started to leave. Smith’s brother shot Holder a second time. When his brother ordered Smith to help move the body, Smith refused. Smith did, however, bring him some buckets of water to clean the area where Holder was shot. Holder died as a result of the gunshot wounds. Smith testified that he did not provide any help or assistance to Holder while he was dying.
the plea hearing, Smith testified against his brother and described his role in
considerably more detail.
seven months before the plea hearing, this court held in State v. Misquadace that a plea agreement, standing alone, is not a
sufficient basis to depart from the sentencing guidelines. 629 N.W.2d 487, 491 (
brother was convicted of first-degree premeditated murder and that conviction
was affirmed on appeal. Smith, 669 N.W.2d at 35. Tina Leja, who was the girlfriend of Smith’s
brother, was also tried and convicted for her role in the murder. State
v. Leja, 684 N.W.2d 442, 443 (
Almost four years after Smith pleaded guilty and two years after the Leja decision, Smith filed a petition for postconviction relief. Smith argued that his upward sentencing departure was improper under Misquadace and that no other factors justified the departure. The district court agreed that Misquadace applied but concluded that the departure was justified because the crime was committed with particular cruelty and was committed by a group of three or more people who all actively participated. In addition, the district court concluded that the postconviction petition was not timely. The court therefore denied Smith’s petition. Smith now appeals this denial.
D E C I S I O N
State v. Misquadace, Smith’s original
sentence was unauthorized because the district court failed to provide a basis
for the upward sentencing departure that explained how the offense was “any
more or less serious than the typical offense or conviction.” 644 N.W.2d 65, 71 (
Smith, the state, and the district
court agree that Misquadace applies
to Smith’s sentence. The application of
law to the sequence of events supports this conclusion. First, when Smith was sentenced, this court
had already issued its decision in State
v. Misquadace concluding that a plea agreement alone could not justify a
departure. 629 N.W.2d 487, 491 (
sentencing departure will be affirmed despite inadequate reasons if “there is
sufficient evidence in the record to justify the departure.” State
v. McIntosh, 641 N.W.2d 3, 8 (
In reviewing a sentencing departure,
we will defer to the district court’s findings of fact unless the findings are
clearly erroneous. Dukes v. State, 621 N.W.2d 246, 251 (
The district court concluded that the upward departure was justified because Smith committed the crime with particular cruelty. The court stated:
First, Petitioner prevented Holder from leaving the room where he was being assaulted. In doing this, Petitioner likely exponentially increased the terror Holder must have been experiencing. He also deprived Holder of any opportunity of escaping the encounter. Second, Petitioner ignored Holder’s pleas for mercy and failed to offer the medical attention Holder begged for and required. Third, Petitioner participated in dismembering Holder’s body. Fourth, Petitioner attempted to conceal the crime by cleaning the scene of the murder and removing Holder’s car from the vicinity of the murder.
The companion cases to Smith’s prosecution provide evidence that could be used to support these findings. Leja, 684 N.W.2d at 445-46; Smith, 669 N.W.2d at 23-25. The record in Smith’s case, which is essentially the transcript for Smith’s plea, does not support these findings. The only evidence that Smith concealed the crime was his statement that he brought his brother “some buckets of water.” No evidence in the plea transcript supports the findings that Smith moved Holder’s car or dismembered Holder’s body. Although Smith admitted that he did not provide any assistance to Holder, the record does not indicate that Smith had any realistic opportunity to assist him.
importantly, we conclude that the law applied to the facts in the
not support a determination that Smith acted with particular cruelty
prevented Holder from leaving the room.
Smith was indicted for aiding and abetting the intentional murder of
Holder “while committing or attempting to commit the crime of
kidnapping.” Similarly, Smith’s plea to second-degree
unintentional felony murder was on an underlying offense of
kidnapping. Because confinement was part of the charged
offense, Smith’s act of preventing Holder from leaving the room
does not establish
that the crime was committed with particular cruelty. See
The record contains no indication that the underlying offense had changed at the time of the plea. At the plea hearing, Smith’s attorney made a brief reference to aiding and abetting an assault, but we can find no other evidence that the charge was amended. The state has therefore failed to establish that Smith pleaded guilty to felony murder with an underlying offense of aiding and abetting an assault. But even if the underlying felony had been assault, Smith’s act of confining Holder was similarly not a particularly cruel way to aid and abet an assault. See Misquadace, 644 N.W.2d at 69 (permitting sentencing departures when defendant’s conduct was “significantly more or less serious than that typically involved in the commission of the crime in question”). We therefore can find no basis in the record for concluding that Smith acted with particular cruelty.
the postconviction proceedings, the district court also held that the upward
departure was justified because Smith “committed the crime as part of a group
of three or more persons who all actively participated.”
the district court concluded that an upward departure was appropriate because
Smith could be held responsible for his brother’s actions. It is undeniable that Smith’s brother’s
actions are abhorrent. But under the
sentencing guidelines, an upward departure may be imposed if the victim “was
treated with particular cruelty for which the individual offender should be held responsible.”
In addition to affirming the original sentence, the district court alternatively concluded that Smith’s postconviction petition was barred as untimely. We are unable to find support for the district court’s conclusion that the four-year lapse between sentencing and the postconviction petition should result in denial of the petition.
the legislature added a timeliness requirement to the postconviction-relief
state argues, however, that even before the 2005 amendments, a petition for
postconviction relief could be denied as untimely. In advancing this argument, the state
primarily relies on two cases, State v.
Lopez, 379 N.W.2d 633, 636 (
the 2005 amendments, we doubt that petitions for postconviction relief could be
denied solely because they were untimely.
Instead, petitions for postconviction relief were limited through the Knaffla rule. See
Doppler v. State, 660 N.W.2d 797, 801 (
we note that the Knaffla rule does
not bar Smith’s petition. First, Smith
did not directly appeal his sentence. By
its own terms, the Knaffla rule only
applies “where direct appeal has once been taken.” State
v. Knaffla, 309
Because the record contains no basis for an upward departure, the district court’s denial of Smith’s petition for postconviction relief is reversed. When an upward departure is unauthorized under Misquadace, the proper remedy is to remand to the district court to “consider motions to vacate the conviction and the plea agreement.” Lewis, 656 N.W.2d at 539. We note that at least two factors weigh against granting a motion to vacate. First, because Smith testified against his brother, the state may now have a considerably stronger case against Smith. Even if Smith’s sentence at trial was capped at 240 months, Smith might still be prejudiced because of his cooperation with the state. Second, the state should not be able to obtain an advantage from its failure to adhere to the requirements of the 2001 decision in Misquadace when Smith was originally sentenced. Nonetheless, these factors can be addressed and weighed by the district court on remand.
the plea agreement is not vacated, a sentence within the presumptive range must
be imposed. A defendant should be
sentenced according to the sentencing guidelines in effect at the time the
crime was committed.
Reversed and remanded.