C8-99-549

State of Minnesota,

Respondent,

vs.

James Patrick St. Hilaire,

Appellant.

Filed May 2, 2000

Affirmed as Modified

Davies, Judge

Rice County District Court

File No. K4-98-214

Mike Hatch, Attorney General, Margaret H. Chutich, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

G. Paul Beaumaster, Rice County Attorney, Rice County Courthouse, 218 Northwest Third Street, Faribault, MN 55021 (for respondent)

John M. Stuart, State Public Defender, Lawrence Hammerling, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55455 (for appellant)

Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.

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

DAVIES, Judge

Appellant James Patrick St. Hilaire was convicted of unlawful possession of a firearm and conspiracy to commit second- and first-degree controlled substance crimes. Appellant challenges his sentence on the grounds that the district court sentenced his offenses in the wrong chronological order and, in doing so, unduly exaggerated his criminal culpability. We affirm as modified.

FACTS

Between March 22 and April 20, 1997, confidential informants made eight purchases of methamphetamine from appellant and his co-conspirators. On April 22, 1997, the police stopped appellant’s truck and discovered a loaded handgun and methamphetamine-producing equipment and raw materials. The record indicates that appellant possessed the handgun before April 20, 1997.

Appellant was convicted of unlawful possession of a firearm, conspiracy to sell 10 grams or more of mixtures containing methamphetamine (a second-degree controlled-substance offense), and conspiracy to manufacture 50 grams or more of methamphetamine (a first-degree controlled-substance offense). The district court sentenced appellant for the crimes in the above order. In sentencing for the first-degree offense last, the court computed appellant’s criminal history score as follows: one point for a prior burglary offense; one point for committing an offense while on probation; one point for the firearms offense; and one-and-a-half points for the second‑degree controlled‑substance offense. The district court then sentenced appellant to a presumptive 139-month sentence on the first-degree offense of conspiracy to manufacture, using the Hernandez method of sentencing. This sentence was to be served concurrently with the shorter sentences imposed for the other offenses. This appeal follows.

D E C I S I O N

I. Order of Sentencing

District courts have great discretion in imposing sentences, and we will not disturb a sentence authorized by law. State v. Munger, 597 N.W.2d 570, 573 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). It is the district court’s function to make any findings of fact that bear on sentencing. State v. Olson, 379 N.W.2d 524, 527 (Minn. 1976).

When the district court sentences a defendant on the same day for multiple offenses, not part of a single behavioral incident, it may, before sentencing for the final offense, properly assign one criminal-history point for each felony conviction for which a sentence was stayed or imposed. State v. Hernandez, 311 N.W.2d 478, 480-81 (Minn. 1981); Minn. Sent. Guidelines II.B.I. Under Hernandez, multiple offenses should be sentenced in the order in which they occurred. Minn. Sent. Guidelines II.B.101 cmt. The sentencing judge should establish the relative order of the offenses based on the information available. Minn. Sent. Guidelines II.A.02 cmt.

Appellant claims that the district court abused its discretion by sentencing him for unlawful possession of a firearm before sentencing him for conspiracy to manufacture methamphetamine; he claims the complaint alleged that the conspiracy to manufacture methamphetamine occurred first. But the facts proven, not the allegations of the complaint, control. A defendant is properly sentenced first for the offense he completes first. State v. Anderson, 345 N.W.2d 764, 766 (Minn. 1984) (when burglary was completed before criminal damage to property, burglary was properly sentenced first); State v. Perez, 404 N.W.2d 834, 841-42 (Minn. App. 1987) (when aggravated robbery occurred before sexual assault, aggravated robbery was properly sentenced first), review denied (Minn. May 20, 1987).

Here, the sentencing court found that the firearms offense occurred before the drug-related offenses. The record supports this factual finding. Four witnesses testified that they had seen appellant in possession of the handgun before April 20, 1997. Because his firearms offense was at that time complete, it was committed before the conspiracy to manufacture methamphetamine, for appellant’s truck was not stopped until April 22, 1997, and the evidence discovered in the truck was the final link in establishing the conspiracy to manufacture methamphetamine. The district court did not abuse its discretion in sentencing appellant for the firearms offense before sentencing him for the conspiracies.

II. Imposition of Presumptive Sentence

Only in rare cases will a reviewing court reverse a district court’s imposition of a presumptive sentence. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).

Appellant contends that the presumptive sentence imposed by the district court is improper because it unduly exaggerates his criminal culpability. But the evidence does not suggest that appellant was less culpable than the typical first-degree controlled‑substance offender. The district court did not abuse its discretion or unduly exaggerate appellant’s criminal culpability by imposing a sentence within the presumptive range.

III. Modification of Sentence

Appellant and the state agree that the district court erred in computing the sentences for appellant’s first two offenses. Because the district court sentenced appellant for the firearms offense first, that sentence should have been based on a criminal history score of two. The presumptive sentence for unlawful possession of a firearm (a Level IV offense), based on a criminal history score of two, is 18 months. See Minn. Sent. Guidelines §§ IV, V. Thus, we modify appellant’s concurrent sentence for the firearms offense from 27 months to 18 months.

The district court next imposed a sentence of 68 months for the conspiracy to sell 10 grams of methamphetamine. We also note that the presumptive sentence for a second-degree controlled-substance offense (a Level VII offense), based on a criminal history score of three, is 78 months. See id. However, in the absence of an appeal filed by the state, we decline to modify this sentence upward.

Affirmed as modified.