This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1665

 

 

State of Minnesota,

Respondent,

 

vs.

 

Robert Allen Fuller,

Appellant.

 

 

Filed January 17, 2006

Reversed and remanded

Toussaint, Chief Judge

Randall, Concurring specially

 

Hennepin County District Court

File No. 04017448

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487  (for respondent)

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414

 

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

On remand, this court was directed to address whether an upward departure from the presumptive sentence imposed for first-degree aggravated robbery was proper under State v. Geller, 665 N.W.2d 514 (Minn. 2003), and State v. Williams, 361 N.W.2d 840 (Minn. 1985).  We conclude that it was not proper and reverse and remand.

D E C I S I O N

            The remand asks this court to address whether a departure from the presumptive guidelines is permitted under Geller and Williams.  Both cases concern a sentencing court’s reasons for departing from the guidelines presumptive sentences.  Williams set out five rules enforcing the requirement that sentencing courts state their reasons justifying a departure from the guidelines presumptive sentence.  361 N.W.2d at 844.  The first rule states that a court’s failure to state reasons precludes a departure.  The fourth rule states that, if an inadequate reason is stated but the evidence in the record supports departure, the departure will be affirmed.  Id.  Geller reaffirmed Williams’s requirement that the sentencing court must state, on the record at the time of sentencing, the reasons for departure.  665 N.W.2d at 517.  Geller also reiterated that, if the sentencing court fails to state its reasons, the matter shall be remanded for imposition of the presumptive sentence, not for the court to make findings “after the fact.”  Id. 

            Here, the state relies on Williams to argue that the court gave a reason for the departure, the reason was improper, there was sufficient evidence in the record to justify the departure, and the departure should be affirmed.  The state argues that the district court gave a reason, although not a “proper” or “adequate” reason, for the departure when it referred to the plea negotiation when imposing the sentence, and, even if the reason is “inadequate,” this court may look at the record to determine if there is evidence of aggravating factors. 

            Appellant relies on State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002) (holding that a sentencing departure cannot be based on a plea negotiation alone).  A sentencing court must “articulate substantial and compelling circumstances other than a plea agreement when departing from the guidelines.”  Id.at 72.  But, the court in Misquadace applied these principles and then looked at the record (a pre-sentencing report) for aggravating circumstances.   Thus, its reference to the plea agreement as a reason for the departure falls under the fourth Williams factor:  an inadequate reason allowed a search of “the record” to find other aggravating factors.  See id.

            The pivotal issue here is whether the sentencing court’s reference to the plea agreement was a stated reason for the departure.  The sentencing transcript indicates that, after counsel for the parties described the reasons for the plea, the court, in one short paragraph, imposed a 72-month sentence, a departure from the presumptive 48 months.  The only brief reference to the plea is in the last sentence, where the court, “pursuant to the negotiation,” dismissed the second count.  We agree with appellant that the sentencing court did not give any reason for the departure, not even an inadequate reason.  Therefore, under Geller and Williams, we conclude that the matter must be remanded for imposition of the presumptive sentence.

            Reversed and remanded.

 

RANDALL, Judge (concurring specially).

            I concur in the result.