State v. Lilly

This opinion will be unpublished and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

C1-96-653

State of Minnesota,

Respondent,

vs.

Vernon Darren Lilly,

Appellant.

Filed December 31, 1996

Reversed and remanded

Klaphake, Judge

Ramsey County District Court

File No. K4-95-3001

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

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for Respondent)

Steven J. Meshbesher, Ian A.J. Pitz, Meshbesher, Birrell & Dunlap, Ltd., 2450 Park Avenue, Minneapolis, MN 55404 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

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

KLAPHAKE, Judge

Vernon Darren Lilly appeals from his sentences for two third-degree controlled substance violations. He challenges the trial court's imposition of sentences that amount to approximately double upward durational departures from the presumptive sentences, and he requests specific performance of an alleged earlier plea agreement that he did not accept. Because we conclude there were no substantial and compelling circumstances to warrant the departures, we reverse and remand for imposition of the presumptive sentences.

D E C I S I O N

The first offense to which appellant pleaded guilty consisted of "sell[ing] one or more mixtures containing a narcotic drug." Minn. Stat. § 152.023, subd. 1(1) (1994). The second offense consisted of "possess[ing] one or more mixtures of a total weight of three grams or more containing cocaine." Id. § 152.023, subd. 2(1). The sentencing guidelines allow an upward durational departure for

a major controlled substance offense, identified as an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual offense. The presence of two or more of the circumstances listed below are aggravating factors with respect to the offense:

* * * *

(b) the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or

* * * *

(f) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement[.]

Minn. Sent. Guidelines II.D.2.b.(5). For both offenses, the district court relied on subdivisions (b) and (f) in departing, and imposed a 72-month executed sentence for the first offense and a 72-month concurrent sentence for the second offense. In regard to the second offense, the court noted that although the amount of cocaine appellant possessed (5.2 grams) was less than in the first instance, it was "more than just for personal use."

We conclude that the record does not support the district court's enumerated bases for departure. For the first offense, the state concedes that the offense did not constitute a major controlled substance offense because it did not "involve[] an attempted or actual sale or transfer of controlled substances." Id. The other items found in the house where appellant lived and was arrested, including cash, electronic items, and weapons, could not provide evidence of a "high degree of sophistication or planning" because appellant lived with other persons in the house and it was not clear that those items belonged to him. The amount of the drug in this case, 14.01 grams, while it may have been greater than the average case, could not alone constitute a basis for departure as a major controlled substance offense. See id. (upward durational departure allowed for major controlled substance offenses only if two or more aggravating factors exist); see also State v. Marshall, 411 N.W.2d 276, 281 (Minn. App. 1987) (durational departure based in part on presence of 39.2 grams of cocaine), review denied (Minn. Oct. 26, 1987); State v. Vogel, 385 N.W.2d 35, 38 (Minn. App. 1986) (durational departure based in part on presence of 20 pounds of marijuana).

For the second offense, the 5.2 grams of cocaine appellant possessed was only slightly greater than the 3 gram statutory minimum. This quantity was not "substantially larger than for personal use." Minn. Sent. Guidelines II.D.2.b.(5). Thus, the district court had no basis for departing durationally from the presumptive sentence for this offense.

Because neither the district court's stated bases for departure nor our independent review of the record provide aggravating factors sufficient to allow upward durational departures for either offense, the district court abused its discretion by departing. See State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996) (court may depart from presumptive sentence only when offense involves substantial and compelling circumstances). We thus remand for imposition of the presumptive 44-month sentence on the first offense, to run concurrently with the 44-month sentence on the second offense.

Finally, we decline to address appellant's request for specific performance of an earlier plea agreement, except to note that the record fails to include any plea agreement or the acceptance of any plea agreement by the court. See Minn. R. Crim. P. 15.01 (requires defendant to be sworn in and questioned by court "[b]efore court accepts a plea of guilty").

Reversed and remanded.