State of Minnesota, Appellant, vs. Nathaniel Robert Felt, Respondent.

may not be cited except as provided by

Minn. Stat § 480 A. 08, subd. 3 (1996)

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-97-2328

State of Minnesota,

Appellant,

vs.

Nathaniel Robert Felt,

Respondent.

Filed April 28, 1998

Reversed and remanded.

Lansing, Judge

Washington County District Court

File No. K3972460

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

Thomas J. Foley, Washington County Attorney, Robert J. Molstad, Jay A. Brunner, Assistant County Attorneys, 14900 61st Street North, Stillwater, MN 55082-0006 (for appellant)

Barry C. Lundeen, R. Michael Waterman, Mudge, Porter, Lundeen & Seguin, 110 Second Street, Hudson, WI 54016 (for respondent)

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Mansur, Judge.*

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

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

LANSING, Judge

The state appeals a stay of adjudication on a guilty plea to aiding and abetting the sale of a controlled substance. The guilty plea was entered on a sales charge rather than a possession charge and does not qualify for a stay of adjudication under Minn. Stat. § 152.18 (1996). Because no "special circumstances" justify an exercise of the court's inherent judicial power, we reverse and remand for sentencing. FACTS

At the omnibus hearing, Nathaniel Felt pleaded guilty to one count of aiding and abetting fifth degree controlled-substance crime in violation of Minn. Stat. §§ 152.025, subd. 1(1), and 609.05 (1996). The factual basis for the plea included Felt's sworn testimony that he arranged a meeting between two individuals for the purpose of one purchasing marijuana from the other. Felt did not know that the purchaser was working as a confidential informant for the Woodbury Police Department and that the transaction was a controlled buy. The informant purchased eight grams of marijuana for $40.

After Felt entered a guilty plea, the district court ordered a presentence investigation. The probation department recommended a stay of adjudication subject to conditions. At the sentencing hearing the district court, over the prosecutor's objection, stayed adjudication of guilt pursuant to Minn. Stat. § 152.18 (1996) and imposed a five-year probation subject to conditions. The state appeals the district court's stay of adjudication. D E C I S I O N

Absent an authorizing statute or rule, a stay of adjudication is only appropriate when the court determines that the charging decision was a clear abuse of the prosecutor's discretion. State v. Krotzer, 548 N.W.2d 252, 254-55 (Minn. 1996). Disagreement with the prosecutor's charging decision is not enough to support a stay of adjudication; rather, there must be "special circumstances" demonstrating injustice from a clear abuse of prosecutorial discretion. State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996).

The district court stayed adjudication of Felt's guilt under Minn. Stat. § 152.18. That statute authorizes a district court to stay the adjudication of specific controlled-substance possession offenses. Minn. Stat. § 152.18 (1996). Felt pleaded guilty to one count of aiding and abetting the sale of a controlled substance. A person convicted of aiding and abetting a crime is guilty of the crime that was aided and abetted. Minn. Stat. § 609.05, subd. 1 (1996); State v. Grilli, 304 Minn. 80, 84, 230 N.W.2d 445, 449-50 (1975) (arranging a drug sale by telephone sufficient to support conviction for sales pursuant to liability for crimes of another statute). Because section 152.18 does not authorize a stay of adjudication in a sales case, the district court's stay cannot be upheld unless it comes within the narrow range of "special circumstances" that demonstrates a prosecutor's clear abuse of discretion in the exercise of the charging function. See Krotzer, 548 N.W.2d at 254-55.

Felt concedes that the district court failed to identify any special circumstances for its decision to stay adjudication, but argues that the record demonstrates adequate evidence of special circumstances. We disagree. The fact that Felt arranged the meeting rather than provided the marijuana is a common fact pattern underlying an aiding and abetting charge. Neither does the small amount of controlled substance negate the validity of the charge. Felt's lack of a criminal record is not a factor that would support a stay of adjudication because sentencing guidelines take into account the defendant's criminal history. The legislature's specifically permitting a stay of adjudication on possessory but not sales offenses weighs heavily against an argument that the conviction flowing from the charge was caused by an abuse of prosecutorial discretion. To the extent that Felt's involvement in the controlled substance sale was less serious than the typical controlled substance sale, the district court is free to take that fact into account in sentencing or by staying imposition of sentence with minimal conditions. Foss, 556 N.W.2d at 541 (mitigating factors are properly recognized by leniency in sentence, not by stay of adjudication).

Reversed and remanded for sentencing.