This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1540

State of Minnesota,

Respondent,

vs.

Salvador Pena,

Appellant.

Filed December 31, 1996

Reversed and remanded

Willis, Judge

Blue Earth County District Court

File No. K8952039

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Ross Arneson, Blue Earth County Attorney, 410 South 5th Street, P.O. Box 3129, Mankato, MN 56002 (for Respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, 2829 University Avenue, S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Parker, Presiding Judge, Willis, Judge, and Foley, Judge.[*]

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

WILLIS, Judge

On appeal from a sentencing order, Salvador Pena challenges the district court's imposition of consecutive sentences for his current and previous offenses as a departure from the sentencing guidelines not justified by aggravating circumstances. We reverse and remand.

FACTS

In 1994, appellant Salvador Pena was convicted of attempted aggravated robbery. Because Pena was only 17 years old at the time of the offense, the district court departed from the sentencing guidelines and stayed Pena's presumptive 36-month executed sentence on the condition that he serve one year in jail and submit to probation.

Ten days after the expiration of his jail term, on December 20, 1995, Pena became involved in a fistfight with a group of intoxicated men who had come to his brother's house. During the altercation, Pena took a gold chain from one of the men. Pena's brother allegedly pointed a sawed-off shotgun at one of the men from the next room, but Pena stated at his guilty plea hearing that he did not see the gun until after he had taken the chain.

Pena pleaded guilty to simple robbery in violation of Minn. Stat. § 609.24 (1996) before the same judge who had imposed his previous sentence. At his probation revocation hearing, the court executed the remaining 24 months of Pena's sentence for his previous conviction. At a later sentencing hearing for the second offense, Pena asked the court to execute the presumptive 27-month stayed sentence for simple robbery in order to run it concurrently with the previous conviction. The district court executed the sentence, but imposed it consecutively, stating:

[W]hat concerns me in this situation is that a week after you got out of jail that you had an offense that carried a mandatory prison sentence. We gave you the benefit of the doubt and didn't give you the prison sentence, you had a year in jail.

* * * [I]f I do nothing in this case, it's an absurd and unreasonable result because there should be something--Dieter Krause had his gold chain taken by simple robbery. * * *

I'm going to depart, and the reason for the departure is there is a blatant disrespect for the criminal justice sentence, and also the legislature did not intend absurd results, and there should be some consequence for a second result a week after you get out of jail on something that you should have gone to jail for, you should have gone to prison for 36 months in the first place. * * * So a week after you're out, you have totally no plan to get yourself straightened out. * * * I think all those circumstances require that you have a consecutive sentence of 18 months.

D E C I S I O N

Pena asserts that the district court abused its discretion by imposing consecutive sentences. We agree.

A court may depart upward from a presumptive sentence

only if aggravating * * * circumstances are present; if aggravating * * * circumstances are not present, the trial court has no discretion to depart.

State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (emphasis omitted). The standard for a departure is

whether [defendant's] conduct somehow may be said to be significantly more serious than typically involved in the commission of the offense * * *.

Id. This court reviews the question of whether a departure is warranted under an abuse of discretion standard. State v. Dokken, 487 N.W.2d 914, 916 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992).

The sentencing guidelines allow permissive consecutive sentencing, in the court's discretion, when

a prior felony sentence for a crime against a person has not expired or been discharged and one or more of the current felony convictions is for a crime against a person, and when the sentence for the most severe current conviction is executed according to the guidelines.

Minn. Sent. Guidelines II.F.1. This court has interpreted "executed according to the guidelines" to mean that permissive consecutive sentencing is allowed only when the most severe current offense carries a presumptively executed sentence. State v. Bicek, 429 N.W.2d 289, 291 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988). The presumptive sentence for simple robbery that corresponds with Pena's criminal history score is 27 months stayed. Thus, the sentence in this case was not "executed according to the guidelines" because the guidelines do not call for an executed sentence. Imposition of consecutive sentences must therefore, as the district court recognized, be reviewed as a departure rather than under the standard for permissive consecutive sentencing.

The sentencing guidelines state that

[t]he judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances.

Minn. Sent. Guidelines II.D. The guidelines provide a non-exhaustive list of aggravating circumstances. Minn. Sent. Guidelines II.D.2.b. Even if the reasons for departure given by the district court are improper, the reviewing court may affirm if the record contains other grounds to justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

In this case, the district court attempted to justify a departure based on (1) the timing of the offense 10 days after the defendant's release from jail, (2) the fact that Pena was on probation, and (3) the downward departure granted for the previous offense. In itself, the timing of Pena's offense does not increase his culpability in committing the robbery.[1] The district court felt that the timing of the offense demonstrated "disrespect" for the criminal justice system. However, in Best, the Minnesota Supreme Court held that

the court's expressed irritation with defendant's attitude and the court's belief that a longer sentence is necessary to keep defendant "out of circulation longer"

did not support a departure absent conduct making the defendant's specific offense significantly more serious than in a typical case of the crime for which he was convicted. 449 N.W.2d at 427.

Pena's probation cannot be used as an aggravating factor for departure purposes. See State v. Park, 305 N.W.2d 775, 776 (Minn. 1981) (holding that failure of previous attempts at probation in combination with other factors justified execution of a presumptively stayed sentence, but not imposition of consecutive sentencing).

Previous sentences are generally not valid aggravating factors because the criminal history score is a factor in the presumptive sentence. State v. Herrmann, 479 N.W.2d 724, 729 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). In this case, the downward dispositional departure for the prior offense is a moot issue, because the execution of the sentence in connection with the probation revocation eliminated the departure; Pena will serve the presumptive sentence, except for spending 12 of the 36 months in a local jail rather than a state prison.

Nothing in the conduct to which Pena pleaded guilty justifies a durational departure from the sentencing guidelines. Although the presence of a gun could distinguish Pena's conduct from a typical simple robbery, see Minn. Stat. § 609.24 (1996) (defining simple robbery), Pena claims not to have been aware of the gun's presence. In sentencing pursuant to a guilty plea, the court may not justify a departure on the basis of conduct underlying a dismissed charge where defendant denies committing the conduct. State v. Womack, 319 N.W.2d 17, 19 (Minn. 1982). A court also may not depart from the presumptive sentence on the ground that defendant could have been charged with a more serious offense, absent evidence of independent grounds for departure. State v. Cox, 343 N.W.2d 641, 643-44 (Minn. 1984).

Because Pena has the right to avoid probation for the simple robbery by serving his two sentences concurrently, see State v. Rasinski, 472 N.W.2d 645, 651 (Minn. 1991) (concluding defendant has right to demand execution of sentence when probationary sentence is more onerous than presumptive prison sentence under the circumstances), the court had a basis for its concern that imposition of the presumptive sentence would lead to the appearance of a lack of punishment for the current offense. However, Pena's present offense led directly to a 24-month executed sentence due to his probation revocation. Nothing in the record shows the existence of the "substantial and compelling circumstances" necessary to depart from the guidelines in sentencing for the current offense. We reverse the decision of the district court and remand for sentencing within the presumptive range under the guidelines.

Reversed and remanded.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 The timing could be a consideration in determining a defendant's amenability to probation, which is relevant to a dispositional departure; however, consecutive sentencing more closely approximates a durational departure, for which this court has held amenability to probation not to be a proper consideration. State v. Herrmann, 479 N.W.2d 724, 728 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).