This opinion will be unpublished and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
State of Minnesota,
Billy Ray Thomas,
Filed September 17, 1996
Reversed and Remanded
Polk County District Court
File No. K495243
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)
Wayne H. Swanson, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN 56716 (for Respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Billy Ray Thomas appeals the district court's denial of his motion to modify his sentences from consecutive to concurrent, arguing that he did not agree to a guidelines departure. We reverse and remand.
In May 1995, Thomas pleaded guilty to one count of first-degree assault and one count of second-degree assault in connection with two separate incidents involving the same person. At the guilty plea hearing, defense counsel stated on the record that the plea agreement contemplated Thomas receiving the presumptive guideline sentences. Thomas understood that, in exchange for pleading guilty, the prosecutor would recommend that the district court follow the guidelines at sentencing. The prosecutor explained:
On May 23, 1995, Thomas was sentenced consecutively to the presumptive terms of 158 months for first-degree assault and 21 months for second-degree assault, for a total term of 179 months. On April 24, 1996, Thomas brought a motion to vacate his 21-month consecutive sentence, asking to be resentenced to a concurrent sentence under the guidelines. The district court denied the motion, and Thomas appeals.
- It is not a departure from the guidelines for these sentences to be consecutive. It is presumed that the sentences would be consecutive given the fact that they are both personal crimes, both of which are presumptive commitments to prison. I want to clarify that fact to the Court that there was not any departure contemplated in this case, that he'd be sentenced according to the guidelines as spelled out in my offer letter.
D E C I S I O N
1. The state argues Thomas's appeal is untimely because he failed to file a notice of appeal within 90 days after judgment and sentencing, citing Minn. R. Crim. P. 28.05, subd. 1(1). We disagree. Thomas brought a motion to vacate the 21-month consecutive sentence pursuant to Minn. R. Crim. P. 27.03, subd. 9, which states that "[t]he court at any time may correct a sentence not authorized by law." The district court denied the motion and Thomas timely appealed. On appeal from a rule 27.03, subd. 9, motion, an appellate court will not reevaluate a sentence if the district court's discretion has been properly exercised and the sentence is authorized by law. State v. Stutelberg, 435 N.W.2d 632, 633-34 (Minn. App. 1989) (citing Fritz v. State, 284 N.W.2d 377, 386 (Minn.1979)).
2. Thomas argues the district court erred in imposing consecutive sentences. We agree. While a defendant may relinquish his or her right to be sentenced under the guidelines, the defendant's waiver must be knowing, intelligent, and voluntary. State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). The defendant must be advised of his or her right to be sentenced under the guidelines, and the waiver must be approved by the district court. Id.
Consecutive sentences may be given "[w]hen the offender is convicted of multiple current felony convictions for crimes against different persons * * *." Minn. Sent. Guidelines II.F. Although Thomas committed both assaults against the same person, it appears that the parties mistakenly applied this section to his sentence. A review of the record indicates that the attorneys and the district court assumed that Thomas would receive the presumptive sentence. While the state claims that the length of the sentence was an express term of the plea agreement, this argument lacks support in the record. There is no indication that Thomas understood that he was waiving his right to be sentenced under the guidelines, as contemplated by Givens.
Here, consecutive sentences are not authorized by the guidelines, and Thomas's sentence must be reevaluated. See Stutelberg, 435 N.W.2d at 633-34. Because no reasons for departure were stated on the record at the time of sentencing, no subsequent departure is allowed. State v. Thieman, 439 N.W.2d 1, 7 (Minn. 1989); Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985). This court has remanded for imposition of the specific presumptive sentence where the trial court failed to make findings to support a departure. State v. Synnes, 454 N.W.2d 646, 647 (Minn. App. 1990), review denied (Minn. June 26, 1990). We remand for imposition of an executed presumptive concurrent sentence for second-degree assault under the guidelines.
Reversed and remanded.