State of Minnesota, Respondent, vs. John Lee Howe, Appellant.

State of Minnesota, Respondent, vs. John Lee Howe, Appellant. A05-1066, Court of Appeals Unpublished, March 28, 2006.

This opinion will be unpublished and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

A05-1066

 

State of Minnesota,
Respondent,
 
vs.
 
John Lee Howe,
Appellant.

 

Filed March 28, 2006

Affirmed

Stoneburner, Judge

 

Watonwan County District Court

File No. K704367

 

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

 

LaMar Piper, Watonwan County Attorney, Watonwan County Courthouse, 710 Second Avenue South, P.O. Box 518, St. James, MN 56081 (for respondent)

 

John M. Stuart, State Public Defender, Richard Schmitz, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his sentence on the bases that the district court did not state reasons for an upward departure and the departure was improperly based solely on the plea agreement.  Because the record contains a substantial and compelling factor supporting the departure, we affirm.

FACTS

 

Appellant John Lee Howe was charged with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2004); one count of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (2004); one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(ii); and one count of third-degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(d).  Howe agreed to plead guilty to one third-degree count and be sentenced to 54 months, in exchange for dismissal of the other three counts.  The agreed-on sentence represents a six-month upward departure from the presumptive sentence under the Minnesota Sentencing Guidelines.

            Howe entered a valid plea on the record, including a waiver of all rights associated with a jury trial and a factual basis for the plea.  Before accepting the plea, the district court questioned Howe about the plea agreement.

THE COURT:        Now, the agreement here is that you are going to be sentenced to serve an executed 54 months, is that your understanding?

[HOWE]:        Yes.

THE COURT:        You understand that under the Sentencing Guidelines, that sentence is more than the Guidelines call for?

[HOWE]:        Yes.

 

. . . .

            THE COURT:        In this case, you're agreeable to that sentence being imposed without either a trial to the jury or any further proceedings in front of the judge; is that correct?

            [HOWE]:        Yes

 

Howe's counsel then questioned him as follows:

 

Q.                Mr. Howe, with respect to this upward departure that you and I have discussed on occasion, you were previously convicted of a criminal sexual conduct offense in 1983, I believe?

A.                 '82, I believe.

Q.                '82.  You understand one of the grounds under the Sentencing Guidelines for a judge to depart upward would be a prior conviction for criminal sexual conduct and a current conviction for criminal sexual conduct, and we've talked about that; is that right?

A.                 Yes.

Q.                And you understand [the prosecutor] is taking the position that all he has to prove is the fact of a prior conviction and then the judge can depart, and I'm taking the position that no, that's not the case, that there has to be the fact of a prior conviction, plus some additional fact-finding that a departure is justified based on the facts of the offense; do you understand that that's what we're sort of arguing?

A.                 Yes.

Q.                And . . . [y]ou understand that what you're doing is you're eliminating the possibility that your case is going to be the one where we find out what to do with that?

A.                 Well, I don't understand that completely, but I don't know what would happen with that, and

Q.                Okay.  You understand there's a possibility that the judge could take the 48-month presumptive sentence and double that to 96 months, and I'm not certain whether that would stand up on appeal or not, do you understand that?

A.                 Right. I don't know how that would work out, and it seems terribly risky. 

 

The district court accepted Howe's plea and found him guilty of third-degree criminal sexual conduct as described in Count Two of the complaint.  The district court was prepared to immediately impose the agreed-on sentence, but to accommodate a visit between Howe and his grandfather at the county jail, scheduled sentencing for the next week in front of a different judge.  At the sentencing hearing, Howe's counsel explained to the district court that

[w]e reached a plea agreement in this case . . . [a]nd we reached an agreed-on sentence of 54 months. . . . [L]ast Friday[,] Judge Rodenberg was prepared to proceed immediately with sentencing . . . .  [He] agreed to put the sentencing to today.  And since this was an agreed-on sentence, he felt there was no need to have a presentence investigation.

 

The prosecutor agreed, and after victim-impact statements were read, the district court imposed a 54-month sentence without expressly referring to either the plea agreement or aggravating factors.  This appeal followed.

D E C I S I O N

 

A district court's decision to depart from a presumptive sentence is reviewed for an abuse of discretion.  State v. Shattuck, 704 N.W.2d 131, 140 (Minn. 2005).  A district court has discretion to depart only if aggravating or mitigating circumstances exist.  Id.  

            Howe argues that the district court did not state any reasons for the departure and that the plea agreement is an insufficient basis for upward departure.  He contends that the "transcript from the plea and sentencing hearing [are] devoid of any record that the court gave reasons to support the durational departure."[1]  Therefore, Howe argues, the proper remedy is remand for resentencing to the presumptive sentence and that the court is not allowed to provide reasons after the fact.  The state contends that Howe's testimony at the plea hearing gave an ample factual basis for an upward departure and that the district court's failure to explain its reasons for the departure with particularity is of no import because the record contains "valid and sufficient" reasons for the departure.

In Williams v. State, the supreme court provided guidelines for reviewing courts to ensure compliance with the requirements that departures have adequate factual and record support. 

1.                  If no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed.

2.                  If reasons supporting the departure are stated, this court will examine the record to determine if the reasons given justify the departure.

3.                  If the reasons given justify the departure, the departure will be allowed.

4.                  If the reasons given are improper or inadequate, but there is sufficient evidence in the record to justify departure, the departure will be affirmed.

5.                  If the reasons given are improper or inadequate and there is insufficient evidence of record to justify the departure, the departure will be reversed. 

 

361 N.W.2d 840, 844 (Minn. 1985).

            "[P]lea agreements that include a sentencing departure are justified under the guidelines in cases where substantial and compelling circumstances [for the departure] exist."  State v. Misquadace,644 N.W.2d 65, 71 (Minn. 2002).  But a plea agreement, standing alone, does not create substantial and compelling circumstances to support a sentencing departure under the guidelines.  Id.  "[W]hen reviewing a plea agreement that includes a sentencing departure, the [sentencing] court must determine whether the offense of conviction reflects any aggravating or mitigating circumstances that warrant a departure."  Id.[2] 

            The record in this case clearly reflects the district court's intention to impose the departure under the plea agreement, the basis of which was placed on the record.  Therefore, we reject Howe's contention that the district court in the case before us failed to state any reason for the departure, precluding departure under Williams.  See Williams, 361 N.W.2d at 844 (stating that "[i]f no reasons for departure are stated on the record at the time of sentencing, no departure will be allowed."); see also State v. Geller, 665 N.W.2d 514-517 (Minn. 2003) (reiterating that "absent a statement of the reasons for the sentencing departure placed on the record at the time of sentencing, no departure will be allowed").  But because the plea agreement by itself is not a substantial and compelling circumstance justifying departure, and because the district court failed to articulate a valid justification for departure, this case must be analyzed as a case in which an inadequate or improper reason for departure was stated on the record.  Williams, 361 N.W.2d at 844 (providing that if reasons for departure are improper or inadequate, the departure will be affirmed if there is sufficient evidence in the record to justify departure and reversed if there is insufficient evidence on record to justify departure).  "[I]f the reasons given for departure are improper or inadequate, this court must examine the record to determine whether there is sufficient evidence to affirm the district court's departure."  State v. Heath, 685 N.W.2d 48, 65 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004), cert. denied, 126 S. Ct. 178 (2005). 

            The record in this case contains evidence of Howe's 1982 felony criminal-sexual-conduct conviction in Anoka County.  Minn. Sent. Guidelines II.D.2.b.(3) lists as an aggravating factor that "[t]he current conviction is for a Criminal Sexual Conduct offense or an offense in which the victim was otherwise injured and there is a prior felony conviction for a Criminal Sexual Conduct offense or an offense in which the victim was otherwise injured."  The plain language of this provision, as it relates to criminal-sexual conduct offenses, does not require any judicial findings other than the fact of conviction.[3]  A sentencing departure based on a prior conviction does not involve judicial fact-finding and does not violate a defendant's Sixth Amendment rights under Blakely.[4]

            Howe was being sentenced for third-degree criminal sexual conduct, and there is evidence in the record of a prior felony conviction for criminal sexual conduct.  Accordingly, even though the district court's reason for imposing the departure (the plea agreement) was inadequate and improper, because there is sufficient evidence in the record to justify an upward departure from the sentencing guidelines, the departure will be affirmed as required by Williams.  

            Affirmed.

[1] The parties appear to agree that the record of the plea hearing may be considered as part of the sentencing record under the circumstances of this case.  Accordingly, we treat the combined hearing as the sentencing hearing.

[2] Misquadace predates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and the supreme court's determination that, under Blakely, "Minnesota Sentencing Guidelines II.D is unconstitutional insofar as it permits an upward durational departure based on judicial findings."  Shattuck, 704 N.W.2d at 143.  But the supreme court noted in Shattuck that Minn. Sent. Guidelines II.D is not unconstitutional in all of its applications, "because a section . . . which provides for imposition of an upward departure based on the fact of a prior conviction, could be determined to be constitutional."  Id. at 142-143 n. 10 (citing Minn. Sent. Guidelines II.D.2.b.(3) (listing as aggravating factor fact that defendant's current and past felony convictions are for criminal sexual conduct or an offense in which victim was otherwise injured)).

[3] As noted above, the supreme court noted in dictum in Shattuck that this provision of the guidelines is not unconstitutional on its face.  704 N.W.2d at 142-43 n.10.

[4] Prior convictions are excluded from the jury-trial right.  See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000) (holding that any fact "[o]ther than the fact of a prior conviction," that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt); see also State v. Allen, 706 N.W.2d 40, 47 (Minn. 2005) (recognizing this exception and noting that the "primary reason for excluding a prior conviction from the constitutional rule is that the prior conviction itself has been established by procedures that satisfy constitutional jury-trial and reasonable-doubt guarantees") (citing Apprendi, 530 U.S. at 488, 120 S. Ct. at 2348) (other citation omitted).