State of Minnesota, Respondent, vs. Reginald S. Tensley, Appellant.

State of Minnesota, Respondent, vs. Reginald S. Tensley, Appellant. A05-997, Court of Appeals Unpublished, February 21, 2006.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-997

 

State of Minnesota,
Respondent,
 
vs.
 
Reginald S. Tensley,
Appellant.

 

Filed February 21, 2006

Affirmed

Minge, Judge

 

Goodhue County District Court

File No. K0-04-311

 

 

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

 

Stephen Betcher, Goodhue County Attorney, Christopher J. Schrader, Assistant County Attorney, Goodhue County Attorney's Office, 454 West Sixth Street, Red Wing, MN 55066 (for respondent)

 

John M. Stuart, State Public Defender, F. Richard Gallo, Jr., Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Minge, Judge.

 

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

 

MINGE, Judge

            Appellant challenges the district court's modification of his concurrent sentences to consecutive sentences.  Because the district court modified appellant's sentence during a stay of execution without increasing the sentence, we affirm.

FACTS

 

            On January 9, 2004, appellant Reginald Tensley was charged by complaint K1-04-43 with three counts: assault in the fifth degree felony, in violation of Minn. Stat. §§ 609.224, subds. 1(2), 4(b), 609.101, subd. 2 (2002); interference with an emergency telephone call, in violation of Minn. Stat. § 609.78, subd. 2. (2002); and domestic assault, in violation of Minn. Stat. § 609.2242, subd. 1(2) (2002).  On March 3, 2004, appellant was charged by complaint K0-04-311 with two counts: multiple violations of an order for protection felony, in violation of Minn. Stat. § 518B.01, subd. 14(d)(1) (2002), and multiple violations of a domestic abuse no-contact order, in violation of Minn. Stat. § 518B.01, subd. 22 (2002).

            Appellant pleaded guilty to the fifth-degree assault charge in complaint K1-04-43 and to two violation-of-an-order-for-protection charges in complaint K0-04-311.  On the conviction incident to complaint K1-04-43, appellant was sentenced to 24 months, but execution of the sentence was stayed on the condition that appellant serve 365 days in the county jail and be on probation for five years.  On the convictions incident to complaint K0-04-311, appellant was sentenced to 27 months on one count and 30 months on the other with the two sentences to be concurrent to one another but consecutive to the sentence on the earlier complaint.  Execution of the sentences was stayed on the condition that appellant be on probation for five years.  The sentences were dispositional departures.

            On February 14, 2005, appellant pleaded guilty to new criminal offenses.  At a probation violation hearing, the district court found that appellant violated his probation by committing these new offenses.  The district court revoked its stay of execution of the earlier sentences incident to complaints K1-04-43 and K0-04-311. 

            Appellant argued that his sentences incident to complaint K0-04-311 were not authorized by law because they were permissive, consecutive sentences to his sentence incident to complaint K1-04-43 and because permissive consecutive sentences are supposed to be calculated based on criminal history scores of zero, which these were not.  Appellant argued that, based on criminal history scores of zero and in the absence of any basis for an upward departure, his sentences under complaint K0-04-311 should have each been 12 months and one day for each offense. 

            The district court agreed, noting that there was nothing in the record suggesting the basis for the upward durational departures to the 27- and 30-month sentences actually imposed incident to complaint K0-04-311.  The district court vacated the prior 27- and 30-month sentences and instead sentenced appellant to two sentences of 12 months and one day.  The district court ordered that these two 12-month-and-one-day sentences be served consecutively to each other and consecutively to the 24-month sentence under complaint K1-04-43 on the basis that the convictions were for crimes against the person.  Appellant challenges this modification of these sentences. 

D E C I S I O N

            The issue before the court is whether the district court erred in modifying appellant's sentence to include three consecutive terms.  Appellant does not challenge the 24-month-sentence on K1-04-43, and does not challenge the district court's reduction of his sentences on K0-04-311 from 27 months and 30 months to two terms of 12 months and one day.  Appellant instead argues that, because the 27- and 30-month sentences were originally imposed to be served concurrently, the replacement 12-month-and-one-day sentences should also be concurrent.  

            Concurrent sentences are presumptive when an offender is convicted of multiple current offenses.  Minn. Sent. Guidelines II.F.  Consecutive sentences are permitted for felonies "against persons."  Id.  "For each offense sentenced consecutive to another offense(s), other than those that are presumptive, a zero criminal history score, or the mandatory minimum for the offense, whichever is greater, shall be used . . . ."  Id.  At the time a sentence is imposed, the district court "shall specify whether the sentences shall run concurrently or consecutively.  If the court does not so specify, the sentences shall run concurrently."  Minn. Stat. § 609.15, subd. 1(a) (2004).  

            Minn. R. Crim. P. 27.03, subd. 9, provides two methods for altering a sentence:  "The court at any time may correct a sentence not authorized by law. The court may at any time modify a sentence during either a stay of imposition or stay of execution of sentence except that the court may not increase the period of confinement."  The modification of a sentence during a stay is within the discretion of the district court.  State v. Hockensmith, 417 N.W.2d 630, 633 (Minn. 1988).  The district court may modify a sentence "before or simultaneous with revoking the stay of execution."  Id.  Under Minn. R. Crim. P. 27.03, subd. 9, the district court is not permitted to increase the length of a sentence during a stay.  State v. Braun, 487 N.W.2d 232, 234 (Minn. 1992) (reversing the district court's modification of appellant's prior concurrent sentences to consecutive sentences because the district court could not increase a sentence during a stay).   

            Here, the district court modified appellant's previous sentence in the same proceeding as it revoked the stay of execution.[1]  The district court imposed consecutive sentences on the basis that appellant's convictions were for crimes against persons, which permit consecutive sentencing.  Appellant's previous sentence was for concurrent sentences of 27 months and 30 months, to be served consecutively to a sentence of 24 months, for a total of 54 months.  The modified sentence called for three consecutive terms: 24 months, 12 months and one day, and 12 months and one day, for a total of 48 months and two days.  Because the district court modified the sentence at the same time it revoked the stays of execution and because the district court did not increase the sentence for any individual charge or the aggregate sentence, the district court did not abuse its discretion in its modification of appellant's sentence. 

            Affirmed.

[1] We do not view the sequence of the events within this proceeding as determinative of whether the final sentences were an abuse of discretion or error.  Everything occurred in a single hearing.