This opinion will be unpublished and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

C5-97-617

State of Minnesota,

Respondent,

vs.

John Patrick Murphy,

Appellant.

Filed November 10, 1997

Reversed and Remanded

Harten, Judge

Ramsey County District Court

File No. K4-93-2832

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

Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Ass't County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

John Stuart, State Public Defender, Evan W. Jones, Ass't State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

Considered and decided by Randall, 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

HARTEN, Judge

This appeal is from an order denying appellant John Patrick Murphy's motion to execute his 1994 stayed sentence for terroristic threats. We reverse and remand.

FACTS

Murphy was charged, in two separate complaints, with 35 counts of terroristic threats, criminal damage to property and conspiracy to commit terroristic threats. One complaint, containing 34 counts, charged numerous offenses against prosecutors, judges, probation officers and others employed in the criminal justice system. The other complaint, the one on which Murphy seeks to have his stayed sentence executed, charged a single count of terroristic threats committed against a guard in the Ramsey County jail. Murphy pleaded guilty on April 18, 1994, under a "plea agreement" made with the trial court, over the objection of the prosecutor and the victims. The "agreement", which was proposed by the defense, provided that Murphy would receive consecutive sentences totaling 570 months for the multi-count complaint. Of this total aggregate sentence, 96 months would be executed, and the remaining 474 months would be stayed. Murphy would also receive a 60-month stayed sentence for the single-count complaint, to be served concurrent with the 96-month prison sentence. Finally, Murphy would seek to serve his term of imprisonment outside Minnesota.

This court affirmed Murphy's conviction and sentence on direct appeal, and the supreme court affirmed. State v. Murphy, C3-94-1931 (Minn. App. Apr. 18, 1995), aff'd 545 N.W.2d 909 (Minn. 1996). Murphy later filed a motion requesting execution of his concurrent stayed sentence on the single-count complaint. By order filed on December 4, 1996, the trial court denied the motion.

D E C I S I O N

A defendant has a right to demand execution of a probationary sentence that is more onerous than the sentence would be if executed. State v. Rasinski, 472 N.W.2d 645, 651 (Minn. 1991). The 60-month probationary sentence is more onerous because it imposes conditions of probation with which Murphy must comply while incarcerated. The probationary sentence serves the interests of society by prohibiting Murphy from further contact with his victims while he is in prison. But "society's interests" may not block a defendant's right to demand execution of sentence. Id. at 650.

The trial court concluded that Murphy could not demand execution of sentence, in part because he had agreed to the concurrent probationary sentence. A defendant may waive his right to be sentenced under the guidelines presumptive sentence. State v. Givens, 544 N.W.2d 774, 777 (Minn. 1996). But such a waiver must be knowing, intelligent, and voluntary. Id. Murphy did not waive his right to demand execution of a sentence. The existence of such a right was not mentioned at either the guilty plea hearing or the sentencing hearing. We do not believe that Givens supports the state's argument that Murphy implicitly waived the right to demand execution, a right of which he was never notified. Cf. State v. Sims, 553 N.W.2d 58, 61 (Minn. App. 1996) (defendant who agreed to departure and was advised of presumptive sentence validly waived guidelines sentence), review denied (Minn. Oct. 29, 1996).

The only situation in which the defendant has been held not to have the right to demand execution of sentence is after probation has already been revoked for a violation of the conditions of probation. Bail v. State, 391 N.W.2d 8, 10 (Minn. App. 1986), review denied (Minn. Sept. 22, 1986). Murphy, in his pro se supplemental brief, appears to claim that the state has attempted to revoke his probation. But there is no record of a probation revocation proceeding in the trial court file. We reverse and remand for execution of the 60-month concurrent probationary sentence.

Reversed and remanded.