This opinion will be unpublished and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

A04-535

 

State of Minnesota,

Respondent,

 

vs.

 

Gary Wayne LaQuier,

Appellant.

 

Filed ­­­August 3, 2004

Reversed and remanded with directions

Harten, Judge

 

St. Louis County District Court

File No. KX-03-601038

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Alan Mitchell, St. Louis County Attorney, Mark S. Rubin, Assistant County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)

 

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Harten, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            On appeal from a sentence imposed for second-degree murder, Gary LaQuier argues that the district court abused its discretion by departing upward without stating the reasons for the departure on the record at his sentencing.  We reverse and remand with directions.

FACTS

In the early morning of 24 September 2003, Gary LaQuier and his companions went to Clifford Brown’s apartment with the intent to rob Brown of money and drugs.  LaQuier was armed with a .41-caliber firearm.  While attempting to forcibly enter Brown’s apartment through the front door, LaQuier accidentally discharged the firearm.  The discharged bullet struck Marcus Johnson, a five-year-old boy asleep on a foldout couch in Brown’s apartment.  Johnson died from his injuries.

LaQuier was charged with second-degree murder.  He pleaded guilty to the offense, and the state filed a motion for an upward durational departure from the presumptive sentence of 159 to 171 months in prison.  The pre-sentencing investigation recommended sentencing LaQuier to 360 months’ imprisonment.  On 29 December 2003, the district court sentenced LaQuier to 240 months’ imprisonment but did not state any aggravating factors on the record to support the departure.  Rather, the district court stated that there is a “sufficient basis for a durational departure” and that it would “prepare and file a separate departure report.”  The departure report, which was filed on 14 January 2004, lists ten aggravating factors to support the district court’s upward durational departure.  LaQuier now appeals.

D E C I S I O N

Sentencing courts have no discretion to depart from the sentencing guidelines unless substantial and compelling reasons exist that justify the departure.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).  “When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence.”  Minn. Sent. Guidelines II.D.  For felony convictions, the district court must state, on the record, findings of fact as to the reasons for departure.  Minn. R. Crim. P. 27.03, subd. 4(C).  In addition, the reasons for departure must either be stated in a sentencing order or recorded in the departure report.  Id.  The decision to depart from the sentencing guidelines rests within the district court’s discretion and will not be reversed absent a clear abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). 

LaQuier argues that the district court abused its discretion by failing to state on the record at his sentencing the specific aggravating factors that the district court considered in imposing the upward durational departure.  The state argues that the district court complied with its obligation to state aggravating factors on the record because the court referred to filing the departure report, which lists the aggravating factors the court considered in this case.

In Williams v. State, the supreme court adopted five rules pertaining to sentencing departures.  361 N.W.2d 840, 844 (Minn. 1985).   Specifically, the court stated:

1.      If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.

 

2.      If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.

 

3.      If the reasons given justify the departure, the departure will be allowed.

 

4.       If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.

 

5.       If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed.

 

Id.  The supreme court recently reaffirmed Williams in State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003).  In addition, the supreme court clarified that if the district court fails to state any reasons for departure on the record, the case must be remanded for imposition of the presumptive sentence.  Id. 

Although the district court referred at sentencing to the departure report, which later identified ten aggravating factors that the court considered in imposing the upward durational departure, the district court failed to state the reasons for the departure on the record at LaQuier’s sentencing.  Under Williams and Geller, this error constitutes an abuse of discretion that requires reversal of LaQuier’s sentence and remand to the district court for the imposition of the presumptive sentence of 159 to 171 months.  This conclusion is supported by Minn. R. Crim. P. 27.03, subd. 4(C), which requires sentencing courts to state, on the record, findings of fact as to the reasons for departure in addition to filing a departure report.

Accordingly, we reverse and remand to the district court with directions to resentence appellant by employing the presumptive sentence of 159 to 171 months’ imprisonment in accordance with the sentencing guidelines.[1]  

Reversed and remanded with directions.