This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C0-95-2707

State of Minnesota,
Respondent,

vs.

Bruce David Miller, petitioner,
Appellant.

Filed July 30, 1996
Affirmed

Holtan, Judge*

Stearns County District Court
File No. K9-92-1240

Hubert H. Humphrey, III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Roger S. Van Heel, Stearns County Attorney, William S. MacPhail, Assistant Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for Respondent)

Bruce David Miller, #116386, P.O. Box 55, Stillwater, MN 55082 (Pro Se Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Holtan, Judge.

U N P U B L I S H E D O P I N I O N

HOLTAN, Judge

Bruce David Miller challenges the postconviction court's denial of his motion for sentence modification, arguing that his sentence should be reduced because the conduct of the arresting officers constituted sentencing entrapment. We affirm.

FACTS

Between October 9, 1991, and December 9, 1991, appellant Bruce Miller obtained eight separate quantities of real and purported controlled substances for an undercover officer in the cities of Roscoe, St. Cloud, and Waite Park.

Miller was charged with one count of controlled substance crime in the second degree, three additional counts of controlled substance crime in the third degree, and four counts of controlled substance crime in the fourth degree. Pursuant to a plea agreement, Miller entered guilty pleas to three counts of controlled substance crime in the third degree and two counts of controlled substance crime in the fourth degree. Under the terms of the plea agreement, the state agreed to make one charge concession and dismiss the remaining three charges.

Miller was sentenced to concurrent sentences for the five charges to which he pleaded. The charges were sentenced in the order the offenses occurred, using the Hernandez method. Miller was sentenced to a total of 63 months. More than two years after he was sentenced, Miller filed a motion for sentence modification, requesting that the court reduce his sentence because the conduct of the officers constituted sentencing entrapment. The postconviction court denied his motion. This appeal followed.

D E C I S I O N

We review a postconviction proceeding to determine whether the evidence is sufficient to sustain the findings made by the postconviction court, and the postconviction court's decision will not be overturned unless it abused its discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

1. Sentencing entrapment.

Miller contends that the facts warrant a downward departure because the conduct of the police officers constituted sentencing entrapment. Miller claims that the undercover agent knew Miller's source and continued to ask Miller to buy drugs for him, never arresting the source.

The trial court must order the presumptive sentence provided in the sentencing guidelines unless the case involves "substantial and compelling circumstances" to warrant a departure. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). The decision to depart from the sentencing guidelines generally rests within the trial court's discretion and will not be reversed absent clear abuse of that discretion. State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981).

Sentencing entrapment is

"outrageous official conduct [that] overcomes the will of an individual predisposed only to dealing in small quantities" for the purpose of increasing the amount of drugs in the conspiracy and the resulting sentence of the entrapped defendant.

United States v. Rogers, 982 F.2d 1241, 1245 (8th Cir. 1993), cert. denied, 509 U.S. 912 (1993). Although it was recently adopted by the Eighth Circuit, most courts have not adopted the concept of sentencing entrapment. United States v. Barth, 990 F.2d 422, 424 (8th Cir. 1993).

In United States v. Calva, 979 F.2d 119, 123 (8th Cir. 1992), the court stated that although the sentencing guidelines provide for potential abuse by police,

[p]olice must be given sufficient leeway to construct cases built on evidence that proves guilt beyond a reasonable doubt. Police also must be given leeway to probe the depth and extent of a criminal enterprise, to determine whether coconspirators exist, and to trace the drug deeper into the distribution hierarchy.

Id. at 123. Further, repeated buys may be necessary to gain the dealer's confidence because an established drug dealer will not readily sell large quantities of drugs to a new customer. Barth, 990 F.2d at 425.

Because Miller entered guilty pleas to five of the charges, the record is limited to the facts alleged in the complaints and the facts elicited during the plea hearing. Those facts indicate that an undercover agent, on eight separate occasions, made arrangements with Miller for the purchase of controlled substances. The first of those purchases was for 3.5 grams. [1] The next six purchases were for one or two grams, and the last purchase was for 6.8 grams. Thus, the facts in this case do not demonstrate a pattern of arranging for the purchase of increasing quantities of controlled substances. In addition, the record indicates that the officers were able to make more arrests because of their repeated buys through Miller.

Miller also argues that he was not a drug dealer, only a drug user. However, the facts surrounding his willingness to obtain drugs for the undercover agent are not in dispute; he admitted to those violations in court. Further, the presentence investigation states that Miller said he sold drugs to make ends meet because he could not get a job.

2. Hernandez method of sentencing.

Miller contends that the postconviction court erred in calculating his sentence because the most severe offense should have been sentenced first. In his reply brief, Miller also contends that the drug purchases were a single course of action, and the Hernandez method is inapplicable.

Under the sentencing guidelines, an offender is assigned a "particular weight for * * * every felony conviction" for which a sentence was either stayed or imposed "before the current sentencing." Minn. Sent. Guidelines II.B.1. The comment following that provision indicates that if "multiple current offenses are sentenced on the same day before the same judge, sentencing shall occur in the order in which the offenses occurred." Minn. Sent. Guidelines cmt. II.B.101.

This provision is consistent with the Minnesota Supreme Court's holding in State v. Hernandez, 311 N.W.2d 478 (Minn. 1981) (holding that trial court sentencing for separate offenses on the same day is justified in counting first two offenses to determine sentence for third). However, Hernandez does indicate that this sentencing scheme would be inappropriate for convictions that were part of a single behavioral incident or course of conduct. 311 N.W.2d. at 481.

In this case, the charges against Miller involved eight separate and distinct sales, occurring at different times and different places. There was complete cessation of criminal activity between the sales, despite the fact that there was a common purchaser. The sales were not set up so that each meeting between Miller and the agent involved delivery of part of the total sale. A subsequent sale was not set up until the present sale had been concluded.

Miller's argument that the most severe offense should have been sentenced first is without merit because the sentencing guidelines require that the offenses be sentenced in the order they occurred. Although the gross misdemeanor DWI was sentenced first and occurred after the first two felony offenses, the gross misdemeanor did not effect Miller's criminal history score. The felonies were appropriately sentenced in the order they occurred.

3. Waiver of the right to object to the sentence.

The state contends that Miller is prohibited from objecting to a sentence he agreed to as part of a plea bargain. Miller cannot, the state argues, get the benefit of the plea bargain and later renege on it.

Although we have addressed the merits of Miller's arguments, in a recent case, the Minnesota Supreme Court held that knowingly agreeing to a plea bargain would be sufficient to support a sentencing departure. See State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). Because Miller knowingly agreed to the plea bargain and the 63-month sentence, Givens further supports our decision to affirm the imposition of the presumptive sentence.

4. Postconviction court's jurisdiction.

The state also contends that the postconviction court lacked jurisdiction to modify Miller's sentence once the court determined that the original sentence was not unauthorized by law.

Although "a trial court has no inherent judicial power to modify an executed sentence," it has "the power to correct an unauthorized sentence at any time." Reesman v. State, 449 N.W.2d 489, 490 (Minn. App. 1989).

Because the postconviction court did not modify Miller's sentence, the state's argument is moot.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1] During the plea hearing, Miller contested that it was 3.5 grams. He claimed that it was one or two grams.