State of Minnesota, Respondent, vs. Frank Gregory Jennings, Appellant.
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Frank Gregory Jennings,
Filed July 3, 2001
Hennepin County District Court
File No. 96068256
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean Elizabeth Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Harten, Presiding Judge, Parker, Judge,* and Foley, Judge.
U N P U B L I S H E D O P I N I O N
Frank Gregory Jennings appeals from an order denying a motion to correct his sentence for third-degree assault. Appellant argues that when his probation was revoked upon his unrelated conviction for felony murder, the trial court erred in making the 21-month assault sentence consecutive to the sentence for felony murder, an offense which occurred later and for which consecutive sentencing was not pronounced. Because we find that the trial court granted a stay of imposition and pronounced consecutive sentencing at the revocation hearing, we affirm.
On January 22, 1997, appellant pleaded guilty to third-degree assault in Hennepin County District Court pursuant to a plea agreement. The negotiated terms were that if appellant pleaded guilty to third-degree assault, respondent State of Minnesota would dismiss the other two counts, and appellant would be granted a stay of imposition and be placed on probation for five years. The agreement further noted that violating the terms of his probation could result in a 21-month upward durational departure. Appellant's attorney explained the agreement to him and informed appellant that if he successfully completed probation, pursuant to the stay of imposition, the case would be reduced to a misdemeanor on his record. On December 15, 1998, in violation of his probation, appellant was convicted of felony murder in Ramsey County District Court. Subsequently, a revocation hearing was held in Hennepin County, resulting in appellant being sentenced to 21 months to be served consecutively to the felony murder sentence. This appeal followed.
D E C I S I O N
A trial court is given great deference in sentencing because
it sits with a unique perspective on all stages of a case, including sentencing, and the trial judge is in the best position to evaluate the offender's conduct and weigh sentencing options.
State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999) (quotation and citation omitted). Trial courts have the discretion, when permitted by the guidelines, to impose consecutive sentences, and this court will not reverse the trial court's decision absent compelling circumstances. State v. Beamon, 438 N.W.2d 397, 400 (Minn. App. 1989), review denied (Minn. May 12, 1989).
Appellant claims the trial court failed to pronounce a consecutive sentence and, therefore, it should be vacated and a concurrent sentence ordered. When the defendant is under sentence of imprisonment, a trial court must announce at the time of sentencing if the sentence is to be served consecutively. Minn. Stat. § 609.15, subd. 1(a) (1998). A sentence is concurrent by statutory presumption if the court fails to pronounce a consecutive sentence on the record at sentencing. Id.; see State v. Rasinski, 527 N.W.2d 593, 594 (Minn. App. 1995) (applying statutory presumption).
Respondent argues that appellant was not under sentence of imprisonment because the court granted a stay of imposition in the third-degree assault case and, therefore, he was not sentenced until the revocation hearing. During the revocation hearing, the court stated on the record that the sentence would be served consecutively to the felony murder sentence.
Appellant argues he was sentenced prior to the revocation hearing. He claims that although the court declared a stay of imposition, the court essentially altered the sentence to a stay of execution by mentioning the number of months to be served if probation was revoked. See State v. Cizl, 304 N.W.2d 632, 634 (Minn. 1981) (noting that when stay of imposition given, no length of time pronounced).
Generally, when the court announces the length of sentence, but stays the sentence, a stay of execution has been ordered. Minn. Sent. Guidelines cmt. II.C.03-.04. But the supreme court has noted that sentencing can be unclear and imprecise from the sentencing transcript, allowing for other evidence of the court's intentions. State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999) (allowing judgment of conviction as conclusive evidence of whether offense has been formally adjudicated when trial transcripts were unclear and imprecise). Here, the evidence indicates that the court granted a stay of imposition. The trial court repeatedly asserted on the record that a stay of imposition was granted and all of the paperwork from the court, including the probation order and the trial transcripts, indicates that the court granted a stay of imposition. Further, appellant and his attorney understood that his negotiated agreement required a stay of imposition, the only disposition that would allow his conviction to be later reduced to a misdemeanor. See Minn. Stat. § 609.13, subd. 1 (1998) (when felony conviction can be deemed misdemeanor). Thus, the trial court did not err in later sentencing appellant to a consecutive term.
Appellant claims that the trial court ordered a consecutive sentence to a subsequent offense and that he was prejudiced as a result. Sentencing for multiple offenses must occur in the order in which they occurred. Minn. Sent. Guidelines II.B.1; State v. Collins, 580 N.W.2d 36, 45 (Minn. App. 1998), review denied (Minn. July 16, 1998). Following a stay of imposition, however, the "court may impose any lawful sentence, including a sentence consecutive to a subsequently imposed sentence." State v. Schwab, 404 N.W.2d 284, 285 (Minn. App. 1987), review denied (Minn. June 9, 1987); O'Leary v. State, 368 N.W.2d 24, 25 (Minn. App. 1985).
Because a stay of imposition was granted for appellant's first offence, no sentence was imposed. "The option of consecutive sentencing should be reserved for the judge last sentencing the defendant * * *." State v. Stafford, 368 N.W.2d 364, 366 (Minn. App. 1985) (citation omitted). At the revocation hearing, sentencing for the assault occurred, making it second in time to sentencing for the felony murder. We find no error; the trial court properly ordered a consecutive sentence.
* Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.