This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-779

 

State of Minnesota,

Respondent,

 

vs.

 

Brian Keith Jackson,

Appellant.

 

Filed December 17 2002

Reversed and remanded

Lansing, Judge

 

Becker County District Court

File No. KX01784

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN  55103; and

 

Joseph A. Evans, Becker County Attorney, Lincoln Professional Center, P.O. Box 476, Detroit Lakes, MN  56502-0476 (for respondent)

 

John M. Stuart, State Public Defender, Theodora Gaїtas, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

 

            In a sentencing appeal, Brian Jackson challenges an upward durational departure from the presumptive sentence for fourth-degree controlled substance crime.  Because the district court based the departure solely on the terms of a plea agreement, we reverse and remand.

F A C T S

            Brian Jackson pleaded guilty to fourth-degree controlled substance crime for selling methamphetamine in Becker County.  The state had originally charged Jackson with two counts of second-degree controlled substance crime but amended the charges to a fourth-degree offense based on an agreement that Jackson would be sentenced to forty months in prison.  The sentencing-guidelines worksheet computed Jackson’s presumptive sentence for the fourth-degree offense as twenty-four-months’ imprisonment.  During the sentencing hearing, the district court explained that the upward durational departure was imposed “pursuant to a plea agreement . . . part of which was filing of a lesser charge, all of which you agreed to.”  Consistent with that explanation, the court listed the agreed-upon sentence as the basis for the upward departure.  Jackson appeals his sentence.

D E C I S I O N

            The district court has broad discretion in sentencing.  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999).  When sentencing a person convicted of a felony, that discretion is limited by the requirement that the sentencing court impose the presumptive sentence under the Minnesota Sentencing Guidelines unless the court expressly identifies substantial and compelling circumstances that justify a departure from the presumptive sentence.  Minn. Sent. Guidelines II.D. 

            In a case decided after Jackson’s sentencing, the Minnesota Supreme Court held that the terms of a plea agreement alone do not provide the substantial and compelling circumstances required to impose a sentence departing from the guidelines.  State v. Misquadace, 644 N.W.2d 65 (Minn. 2002).  Rather, “when reviewing a plea agreement that includes a sentencing departure, the [sentencing] court must determine whether the offense of conviction reflects any aggravating * * * circumstances that warrant a departure.”  Id. at 71.  The district court did not identify any aggravating circumstances justifying Jackson’s sentencing departure.

            The state contends that the Misquadace rule does not apply to Jackson’s sentence because the sentence had already been imposed when the Misquadace opinion was filed, and the supreme court limited the applicability of its ruling to “pending and future cases.”  Id. at 72.  Our court recently determined that “pending and future cases” include cases, such as Jackson’s, in which the time for direct appeal had not run on the date the supreme court released its opinion in Misquadace.  State v. Sanchez-Sanchez, ____ N.W.2d ____ (Minn. App. Dec. 10, 2002).  Under Sanchez-Sanchez, the Misquadace rule applies to Jackson’s sentence.

            To remedy the absence of adequate justification for departure, Jackson asks this court to vacate his sentence and impose the presumptive guidelines sentence.  But in Misquadace, the supreme court determined that the appropriate remedy for a departure based solely on the terms of a plea agreement is to remand to the district court for a determination of whether proper departure factors are present.  Misquadace, 644 N.W.2d at 72.  We therefore conclude that the proper procedure is to remand rather than impose the presumptive sentence on appeal.

            Jackson filed a supplemental pro se brief in which he alleges numerous procedural and investigative irregularities.  We have carefully considered the pro se brief and conclude that it identifies no separate basis for further relief.

            Reversed and remanded.