State of Minnesota, Appellant, vs. Roxanne Marie Price, Respondent.

may not be cited except as provided by

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

 STATE OF MINNESOTA

 IN COURT OF APPEALS

C9-98-274

State of Minnesota,

Appellant,

vs.

James Arthur Hoernemann,

Respondent.

Filed August 11, 1998

Reversed

Kalitowski, Judge

Dissenting, Randall, Judge

Hennepin County District Court

File No. 97103804

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

Jay M. Heffern, Minneapolis City Attorney, Jessica L. Warren, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for appellant)

Timothy Paul Brausen, 331 Second Avenue South #840, Minneapolis, MN 55401 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

 U N P U B L I S H E D O P I N I O N

 KALITOWSKI, Judge

Appellant State of Minnesota challenges the district court's stay of adjudication of the charge of solicitation of a prostitute against respondent James Hoernemann. Respondent asserts the stay is appropriate because evidence was presented to the district court that the City of Minneapolis discriminatorily enforces prostitution cases. We reverse.

  D E C I S I O N

Interference with prosecutorial functions is only justified under very limited circumstances.

Except where the charge is grossly inappropriate in the light of the facts compelling a more serious charge, a trial judge should not ordinarily interfere with the prosecutor's exercise of discretion in charging a defendant. If he [the trial court judge] is going to reject a plea entered pursuant to a plea agreement, he should state his reasons and leave the prosecutor and defense attorney free to engage in further negotiations if they choose.

 State v. McEwan, 265 N.W.2d 818, 820-21 (Minn. 1978). Stays of adjudication are improper absent an indication that the prosecutor clearly abused his or her discretion in charging. State v. Foss, 556 N.W.2d 540, 541 (Minn. 1996).

District courts should only rarely interfere with prosecutorial discretion.

Under established separation of powers rules, absent evidence of selective or discriminatory prosecutorial intent, or an abuse of prosecutorial discretion, the judiciary is powerless to interfere with the prosecutor's charging authority.

 State v. Krotzer, 548 N.W.2d 252, 254 (Minn. 1996). Krotzer held that a stay of adjudication is, however, within the judiciary's inherent power to further justice if "special circumstances" are present. Id. at 254-55. Subsequently, the supreme court has limited possible interpretations of the necessary "special circumstances."

It was not our intention that mere disagreement by the trial court with the prosecutor's exercise of the charging discretion would constitute "special circumstances." Rather, it was our intention that the inherent judicial authority recognized in that case be relied upon sparingly and only for the purpose of avoiding an injustice resulting from the prosecutor's clear abuse of discretion in the exercise of the charging function.

 Foss, 556 N.W.2d at 541.

The issue here is whether the case presents the "special circumstances" required to justify a stay of adjudication under Krotzer. Respondent claims a stay of adjudication was justified because the City of Minneapolis discriminatorily enforces its anti-prostitution laws by recommending diversion programs for prostitutes but not for their patrons. We disagree.

Initially we note that the legislature distinguishes between patrons of prostitutes and prostitutes in its penalties. Minn. Stat. § 609.324 (1996). Further, this court has upheld gender classification in statutes where the classification "is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances." State v. Turner, 382 N.W.2d 252, 256 (Minn. App. 1986) (ordinance prohibiting female topless sunbathing does not violate equal protection), review denied (Minn. Apr. 18, 1986). A rational basis for selectivity defeats claims based on the equal protection clause. City of Minneapolis v. Buschette, 307 Minn. 60, 69, 240 N.W.2d 500, 505 (1976) (state showed a rational relationship between its objective of controlling prostitution and the practice of arresting chiefly women violators). Finally, we note that the evidence presented here indicates the city does not recommend diversion programs for patrons of prostitutes, regardless of their gender. Because an offer of diversion is within the prosecutor's discretion, exclusion from the diversion program is likewise an act of prosecutorial discretion. See Minn. Stat. § 401.065, subd. 1(2) (1996) (referring to pretrial diversion as a decision of the prosecutor).

We conclude the district court's apparent disagreement with the lack of pre-detention diversion programs for patrons of prostitutes does not constitute a special circumstance allowing a stay of adjudication.

Reversed. RANDALL, Judge (dissenting).

I respectfully dissent. The essential facts of the case are as follows:

Respondent was arrested for offering money to an undercover police officer in exchange for sex. He was charged with solicitation of a prostitute under Minn. Stat. § 609.324, subd. 3 (1996). The charge is a misdemeanor. See Minn. Stat. § 609.02, subd. 3 (1996) (misdemeanor is "crime for which a sentence of not more than 90 days or a fine of not more than $700, or both, may be imposed").

At a pre-trial conference, respondent offered to plead guilty to the offense in exchange for a sentence. The state was willing to recommend a sentence of ten days in jail, stayed for one year on the condition that respondent commit no same or similar offenses and pay the maximum fine of $852.00, including surcharges and assessments. The district court judge called the parties into her chambers to discuss a letter from Minneapolis City Attorney Jay M. Heffern to Hennepin County Chief Judge Daniel H. Mabley, dated August 14, 1997, that outlined the city's new approach to prosecuting prostitution cases.

The letter is in the record and is not in dispute. The letter, in relevant part, detailed the city's policy to combat what the city saw as increasing incidents of prostitution. For first-time female offenders, the city would accept a continuance without plea on the condition that the offenders enter and successfully complete the PRIDE program. Repeat female offenders would get stronger sentences, including jail time. For patrons of prostitutes, as respondent is, the city's letter stated specifically that they would urge the courts to impose the maximum statutory fine for first-time offenders, and for repeat offenders, the city would seek harsher sentences.

In chambers, the district court asked the state if any pretrial diversion programs existed for respondent, and the state replied that there were none. The court advised counsel that it considered the state's policy of selectively offering pretrial diversion programs depending upon the sex of the offender (pretrial diversion available to women only, not to men) and the location in which the offender was arrested to be a violation of the Equal Protection Clause of the United States Constitution. The district court then advised appellant and his counsel that it would accept a guilty plea to soliciting prostitution and would then enter a stay of adjudication of guilt upon probation conditions similar to those in low level misdemeanor cases where a diversion program is available. The district court accepted the plea of guilty and imposed conditions of probation, including community service, a monetary fine, and a statement to defendant that if he had no similar arrests, charges, or convictions, the matter would be off his record and dismissed.

Appellant's brief included a transcript from the hearing. The full record shows the following:

THE CLERK: Line 42, James Arthur Hoernemann.

MS. WARREN: Jessica Warren for the State.

MR. BRAUSEN: Good afternoon, Your Honor. Tim Brausen, B-R-A-U-S-E-N, appearing on behalf of Mr. Hoernemann, who is present.

MS. WARREN: It's my understanding this is going to be a straight plea to the Court over the State's objection.

THE COURT: All right. Mr. Hoernemann, how do you plead to soliciting prostitution from October 9, 1997, in the City of Minneapolis?

THE DEFENDANT: Guilty, Your Honor.

THE COURT: All right. Do you understand that by pleading guilty you are giving up your right to have a jury trial, and at the jury trial you could cross-examine the State's witnesses, you could subpoena and call to testify witnesses on your behalf, you could testify if you wanted to but you wouldn't have to. You could have a pretrial hearing contesting the admissibility of the State's evidence, the State would have to prove you guilty by proof beyond a reasonable doubt, and all the jurors would have to agree before you could be convicted of anything. Do you have any questions about those rights?

THE DEFENDANT: No, Your Honor.

THE COURT: And do you also understand that a guilty plea to this type of charge can be used against you in the future if you engage in similar behavior within certain time periods, which could result in you being charged with a gross misdemeanor which has a maximum penalty of a year in jail and/or a $3,000 fine?

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right, And with that understanding, is it your intent to plead guilty today?

THE DEFENDANT: Yes.

THE COURT: All right. Is it true that on October 9, 1997, in Minneapolis, you agreed to pay money to have sex with what turned out to be an undercover officer?

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right. Anything that you wanted to say about this?

THE DEFENDANT: I made an irrational action and I'll never do it again.

THE COURT: All right. Anything you wanted to say on his behalf, Counsel?

MR. BRAUSEN: No, Your Honor.

THE COURT: All right. Pursuant to your plea of guilty to prostitution from October 9, 1997, I will stay adjudication of any guilt for one year on these conditions:

First, that you have no similar arrests, charges or convictions, that you perform 40 hours of community service within the next 180 days, and that you pay a $100 fine.

If you abide by those conditions, at the end of the year the matter will be off your record and dismissed. If you violate, you will be back before me for sentencing. All right.

THE DEFENDANT: Thank you.

THE COURT: Good luck.

MR. BRAUSEN: Thank you, Your Honor.

This case raises, or more accurately reraises, three issues that have come back to the appellate court system from the district courts on a regular basis since the release of State v. Krotzer, 548 N.W.2d 252 (Minn. 1996).

The three issues are:

1. Was there interference with prosecutorial discretion in charging?

2. Is this sentencing dispute over a misdemeanor appealable?

3. If it is appealable, and I agree that a de facto exception has been carved out for less than felony appeals on stays of adjudication, was the district court's decision to take a guilty plea and go with stay of adjudication justified by the record, given district court discretion on sentencing?

Like the Minotaur's labyrinth, it is essential when addressing the problem to go back to the beginning. Krotzer was a well-written, solid opinion coming to the unremarkable conclusion that the state has the discretion to charge and that in Krotzer it had not been interfered with, and the Krotzer court reaffirmed that principle. Then the Krotzer court came to the unremarkable conclusion that the judiciary has the power to sentence, and the state's attempt in Krotzer to interfere with that was denied, and that principle was reaffirmed.

Since the release of Krotzer over two years ago, district judges around the state have continued to utilize stays of adjudication on low-level offenses, continuing a process or custom that has gone on in different courts in this state for years before Krotzer. The continued utilization of the stay of adjudication, even after the mixed messages of Krotzer's progeny is a clear message from the trial bench that not Krotzer, but Krotzer's progeny appear fuzzy, inconsistent, and virtually contradictory to the three key holdings of Krotzer. The first holding was that the prosecutor's discretion to charge was not interfered with in Krotzer. Id. at 254. The second holding was that stays of adjudication are legal sentences. Id at 254-55. The third holding was that stays of adjudication can include incarceration as part of the sentence (which pretrial diversion or de novo programs cannot). Id. at 256.

The first issue is, was there any interference with prosecutorial discretion in charging. In this case, as in Krotzer, there was none. In Krotzer, the Carver County prosecutor investigated the allegations against Krotzer, filed the criminal charges that he wanted to, obtained a guilty plea to those charges, and recommended a sentence to the court. Id. at 254. Krotzer states in part:

However, the prosecutor's power to file charges and prosecute an individual was not infringed upon here. As Krotzer states, the Carver County prosecutor investigated the allegations against Krotzer, filed criminal charges, obtained a guilty plea, and recommended a disposition and sentence to the court. The trial court then postponed acceptance of the plea and placed Krotzer on probation, but this did not affect the prosecutor's carefully defined role. The final disposition of a criminal case is ultimately a matter for the presiding judge.

 Id. (citation omitted).

 There was no separation of power issue in Krotzer, other than the prosecutor trying to interfere with the district court's right to sentence. There have not been any separations of power issues since Krotzer. In all of Krotzer's progeny, the prosecutor was allowed to charge what it wanted and, in fact, got pleas of guilty to what it charged.

We have the same fact situation here. The prosecution selected the soliciting prostitution charge to bring against respondent. There was no interference with that right to charge, none is claimed, and the record shows the district court took a plea of guilty to that charge. The district court simply disagreed with the sentencing recommendation of the state and went with the sentencing recommendation of respondent. This case, like Krotzer, is a sentencing issue case, not a charging issue case.

I have never been sure where this argument about "interference with prosecutorial discretion to charge" arose. "Interference" did not arise in Krotzer. It did not arise in any of Krotzer's progeny. It did not arise in this case. In every single case going back to Krotzer, the prosecution was allowed to charge what it wanted, collect what evidence it wanted to support the charge, get a plea of guilty to the charge it brought, and never once in any of those cases did it show that its right to charge had been interfered with. The only issue in every single case going back to Krotzer is a disagreement by the prosecution over the sentencing. Disputes over sentencing between prosecution and defense arise routinely. District courts hear them by the thousands each year and routinely pick the sentencing option that they feel best fits the facts of the crime. When the sentence will be incarceration in a prison, there are disputes over whether there will be an upward departure, or a downward departure, or just a presumptive sentence. When there will be a stay of any prison time, there are sentencing disputes over whether there will be a stay of execution (felony record) or stay of imposition (temporary felony record but can be reduced to a misdemeanor record if the defendant successfully completes all the conditions of probation). Here, we have a sentencing dispute, no more, no less, over whether the district court will stay imposition of sentence with certain conditions of probation, impose a straight misdemeanor sentence, or stay adjudication of guilt, but couple the stay with certain normal conditions of probation.

In examining Krotzer and all of its progeny, there has always been only the one issue, not an issue over the right to charge, but an issue over the appropriate sentence. Krotzer was a felony. Its progeny have been mostly misdemeanors with a few gross misdemeanors. The issue has always remained the same, sentencing, not the charge. The issue has never changed. As Casey Stengel might say to a judge, "You have got a nice job. Even if you can't read, you can always go to the record and look it up."

I have never seen a true abuse of prosecutorial discretion to charge issue on appeal. For those who have not seen one, I will describe two hypotheticals so we know what they look like in case one should ever come by. For instance, a county sheriff responds to a call about a beer party or "kegger" in the woods. He goes there at 11:15 p.m., checks everybody's identification, finds everybody polite, minding their own business, and of age, except for two twenty-year-olds who would turn 21 at midnight who were just out with college friends in the same class. He gives those two a ticket for underage drinking. At the first appearance of the two defendants in district court, the judge says to the county attorney,

Counsel, from the facts in the complaint, it appears this was a normal young adult beer party in a place where they were permitted to be. There are no allegations of any criminal conduct whatsoever, except that I see you charged two young men for underage drinking who would be of legal age just forty-five minutes later. I have a personal opinion that cases like this should not take up the court's time, and before it goes any further, I am going to dismiss it.

Then bang goes the gavel and the case is dismissed with the court's comments making it clear to the county attorney's office that the court views this dismissal as one "with prejudice" and the charge should not be brought back. Someone observing that courtroom scene might agree with the district court's judgment, but that would be an example of a judge interfering with a prosecutor's right to charge crimes.

In a similar vein, assume a bar fight where one of the participants ended up with a broken nose and some bleeding. No weapons were used, no bystanders were hurt, no damage was done to the bar owner's property. Everyone watching figured it was two guys just blowing off some steam, and none of the witnesses thought it was any big deal at all. But the victim (the loser with the bleeding nose) brings it to the attention of the authorities, and because there was a broken nose and some blood loss, the local county attorney chooses a low-level felony assault charge rather than a simple misdemeanor. The county attorney brings the charge into court and the district court judge says,

Look, I have a personal philosophy that in a bar fight, unless there is really serious injury, I don't allow trials on felony assault when somebody just gets a broken nose. I figure any consenting adult who gets into a fight in a bar maybe deserves at least a broken nose. Before we go any further, counsel, I either want you to reduce this charge to misdemeanor assault or I will dismiss the matter altogether.

Again, the common sense and judgment of the district court might be admired. But this hypothetical would be an instance of technical interference with the prosecutor's right to charge. None of the Krotzer cases have ever been remotely connected to facts like this.

Until the truth is acknowledged, I am going to reiterate the point. Krotzer was not a charging issue, but rather a sentencing issue. In Krotzer, the state legitimately investigated and brought a particular charge. The defendant pleaded guilty to that charge. The state was willing to go along with an appropriate sentence, modest terms of probation, and stay of imposition of sentence. The state was not out of line in Krotzer for arguing for stay of imposition. The district court judge could easily have given that and it likely would have stood up on appeal. But when all the facts from the presentence investigation came to the court's attention, and getting all the facts is a prerequisite for fashioning an equitable sentence, the district court looked at its sentencing options and chose stay of adjudication over stay of imposition. The district court was backed in its selection of a sentence option by the probation department, the victim, the victim's family, and certainly defense counsel and the defendant's family. The state's roll in the case was not downplayed. The state received no affront to its personal dignity. The state was allowed to bring the charge it wanted and argue for the sentence it wanted. But based on a complete record, the district court utilized stay of adjudication rather than stay of imposition so as not to smear the defendant with a "predator label" for the rest of his life when the facts appeared not to warrant that. The state, instead of acknowledging the district court's power to select one sentencing option over another, appealed in Krotzer. The supreme court in Krotzer upheld the power of the district court to fashion the sentence it did. Since Krotzer, rather than accept that decision in good grace and go on with life, the state has appealed virtually every single stay of adjudication over nothing more than a fit of pique over losing the appeal in Krotzer. That is all the post-Krotzer cases are all about, nothing more.

This case has no interference with prosecutorial power to charge issue. Here the charge was soliciting prostitution. That is the exact charge the court took a plea to. Thus, the district court judge in the case before us cannot be reversed for interfering with the prosecution's right to charge crimes. There wasn't any.

The second issue is the appealability of a misdemeanor sentence under Minn. R. Crim. P. 28.04, subd. 1.

This case is about a misdemeanor, so I will assume a de facto exception has been carved out by the Minnesota Supreme Court sentencing appeals from misdemeanors when the sentence is stay of adjudication. The Minnesota Supreme Court did not expressly address the issue of an exception in State v. Cash, 558 N.W.2d 735 (Minn. 1997), but Cash was a misdemeanor case which it reviewed, and this court has since reviewed misdemeanor sentences of stay of adjudication based on Cash. See State v. Thoma, 569 N.W.2d 205 (Minn. App.) reviewing stay of adjudication in appeal by state after concluding such appeals are appeals from pretrial orders), aff'd mem. 571 N.W.2d 773 (Minn. 1997). It might be better judicial policy to spell out the exception to criminal rule 28.04, if there is one. I am satisfied that a de facto exception has been carved out. But since there has been no analysis, how far does the exception go? Are all misdemeanor and gross misdemeanor sentences that the prosecutor disagree with now appealable? What if the district court here, finding that no pretrial diversion was available for respondent, took the plea of guilty and gave respondent a straight misdemeanor sentence of a $1.00 fine, no stayed time, and no community service? Up until now, that sentence would be unreviewable and unassailable. If there is to be an exception, it is best to honestly acknowledge the exception and to define its limits.

One cannot duck the issue of the unappealability of misdemeanor sentences by using the term "pretrial appeal." This case does not fit under the heading of a pretrial appeal. I understand that "pretrial appeal" was argued in prior misdemeanor appeal cases to avoid this issue. See id. I cannot speak for the record in those cases, but I can speak for the record in this case, which I set out in whole in this dissent. This case is a record of the taking of a guilty plea, and then a sentencing hearing. It is not a record of a pretrial suppression hearing or other evidentiary matter. The sentencing hearing conducted by the district court, on the record, shows the taking of a guilty plea to the charge of soliciting prostitution. Then after the court satisfied itself by the requisite burden, proof beyond a reasonable doubt, that appellant had committed the crime, the court imposed a sentence pursuant to respondent's plea of guilty. The sentence consisted of the court staying adjudication of guilt for one year and imposing, as a condition of probation, community service and a $100 fine.

We know from Krotzer that stays of adjudication take place at sentencings, not as part of a pretrial suppression hearing. The supreme court in Krotzer used the term "final disposition of a criminal case." Krotzer, 548 N.W.2d at 254. Further, and the sine qua non of Krotzer, differentiating Krotzer from pretrial hearing cases, is that Krotzer made it clear that stays of adjudication can include as part of the sentence or term of probation, a term of incarceration in jail. Krotzer states in part:

However, we disagree with the court of appeals' conclusion that the district court could not require Krotzer to serve a term of incarceration as a condition of his probation. * * * We further note that it is standard practice among judges to order defendants to serve a jail term of less than one year as a "condition" of their probationary term under section 152.18. * * * We therefore hold that it was not improper for the district court in this case to follow the sentencing options permitted by section 152.18, and to order Krotzer to serve 60 days in jail as a condition of his 60 months on probation.

 Id. at 255-56.

The judiciary does not have the power (absent exceptions like the nonability of a defendant to raise bail, an issue not involved in Krotzer and its progeny) to incarcerate citizens of this state for "losing" a pretrial hearing. Even with our high degree of judicial immunity, we are in deep trouble if we are setting sentences that include jail time without either going through a trial or listening to an offered plea of guilty and then determining by proof beyond a reasonable doubt that all the essential elements of the crime have been met.

The issue has come up as to whether stays of adjudication are "like pretrial diversion or de novo cases" and thus can the scrutiny over appealability be avoided. On this record, that scrutiny cannot.

In this case, it is apparent that had the "prostitute" not been an undercover officer, the district court would have given her de novo/pretrial diversion. The prosecution told the district court that, the district court found that, and the record shows that. From the record we know that respondent did not get de novo pretrial diversion treatment. We know that because the prosecution told the court there wasn't any diversion program available for respondent, the district court found that, and the record shows that. In Thoma, stays of adjudication were likened to continuances for dismissal and diversion. See Thoma, 569 N.W.2d at 206 (noting in one appellant's case, district court granted stay of adjudication in lieu of pretrial diversion after learning that no pretrial diversion was available). The Thoma court concluded that stays of adjudication are equivalent to pretrial orders. Id. at 208. This court stated in Thoma, "The stay of adjudication function in effect as a continuance for dismissal, which can fairly be characterized as a 'pretrial order.'" Id.

 Thoma cannot affect this case. As stated, we know from Krotzer that stays of adjudication cannot be the equivalent of pretrial orders, including pretrial diversion hearings, because Krotzer states that on stays of adjudication, district courts have the power of incarceration. Diversion is different. Under Minn. R. Crim. P. 27.05, subd. 1, 2, as long as the pretrial diversion program is in effect, the court can impose certain conditions of probation on defendant but cannot incarcerate the defendant as part of a true pretrial diversion program.

The entire history of the appealability by the prosecution of pretrial rulings by a judge, going back to the present rules of criminal procedure in 1977 and beyond, is that of a limited right of a pretrial appeal on suppression matters, evidentiary matters, and, on rare occasions, an appeal on a finding of lack of probable cause. See Minn. R. Crim. P. 28.04, subd. 1(1) (stating prosecution may appeal pretrial orders).

There is simply no history in this state of omnibus issues being appealed by the state under the Minnesota Rules of Criminal Procedure that govern sentencing. Likewise, there is simply no history in this state where there has been a sentencing appeal, before or after the formulation of the Minnesota Sentencing Guidelines in 1980, that was handled under the auspices of the rules governing omnibus hearings and the state's limited pretrial right of appeal therefrom. That is, there were no such cases until Krotzer's progeny. Krotzer itself, a felony case, was not a "pretrial appeal" case. It was an appeal about a felony sentence.

The third issue is discretion of district courts to depart upward and downward at sentencings. Utilizing stays of adjudication rather than stays of imposition is nothing more than a slight, almost minute, downward departure. In fact, a review of all the cases since Krotzer shows that whether stay of adjudication or stay of imposition (which the state is always willing to accept by its own admission) the district courts tend to utilize the same modest conditions of probation. The conditions usually included small fines, restitution if appropriate, suspension of jail time, perhaps a small amount of jail time being served as in Krotzer, and a modest amount of community service.

 Krotzer and its progeny talk about "special circumstances" needed before the district court can utilize the stay of adjudication. But those cases specifically point out that "special circumstances" are instances where there was interference with prosecutorial discretion or disagreement by the district court with what the prosecutor charged. Thus, if there is no interference with the prosecutorial discretion to charge, (none was found in Krotzer, and there is none here), and if there is no disagreement shown on the record with the prosecutor's choice of charges, then the district court simply moves on to the standard routine question of district court sentencing.

The district court here clearly did not disagree with the prosecutor's choice of charges. The prosecutor chose soliciting prostitution. The district court, after listening to defendant's plea, found all the essential elements of that crime were present and had been proven and accepted respondent's plea of guilty. What more can the state ask for as to their charge? The answer is, "nothing." The state got the charge it wanted. The state simply did not get the sentence it recommended. As stated above, and to reiterate the key point, these are not "charging" issues, these are sentencing issues.

A general statement of district court discretion in sentencing was set out in State v. Best, 449 N.W.2d 426, 427 (Minn. 1989) (district court may depart from sentencing guidelines only if aggravating or mitigating circumstances are present); see also Minn. Sent. Guidelines, I.4 (departing from presumptive sentencing guidelines "should be made only when substantial and compelling circumstances exist"). The "substantial and compelling circumstances" test is then widened, meaning that district court discretion to depart is widened by the district court's broad discretion when even one aggravating factor is found. See State v. Garcia, 302 N.W.2d 643, 647 (Minn. 1981) (upholding upward departure where substantial and compelling circumstances were present and district court did not abuse its discretion), overruled in part on other grounds by State v. Givens, 544 N.W.2d 774 (Minn. 1996); see also State v. Turcotte, 348 N.W.2d 110, 112 (Minn. App. 1984) (upholding upward departure based on only one aggravating factor).

The Minnesota Sentencing Guidelines and caselaw set out a laundry list of aggravating circumstances that can form the basis for an upward departure. At least two of those, "particular cruelty," Minn. Sent. Guidelines II.D.2.b(2), and "invading the zone of privacy," State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983), are present in many, perhaps a majority, of charged out serious felonies involving physical violence upon one person by another.

Thus, district courts truly end up having great latitude in fashioning a felony sentence, and in the most serious of cases. With felonies, upward departures, up to double the presumptive sentence, are imposed by district courts and affirmed by appellate courts, often, and at times seemingly routinely. Upward departures of more than double, three times the presumptive, four times the presumptive, and beyond, dot the 18-year history of the Minnesota Sentencing Guidelines. See State v. Norton, 328 N.W.2d 142, 146-47 (Minn. 1982) (affirming imposition of three times presumptive sentence); State v. Strommen, 411 N.W.2d 540. 545 (Minn. App. 1987) (upholding upward departure of 4.19 times presumptive sentence), review denied (Minn. Oct. 28, 1987); State v. Mesich, 396 N.W.2d 46, 53 (Minn. App. 1986) (affirming departure of 5.5 times presumptive sentence), review denied (Minn. Jan. 2, 1987). Huge upward departures ranging from 5 to 30 years in prison, are out there in caselaw.

Minnesota has an acknowledged 18-year history of granting to the district courts in this state wide latitude in fashioning appropriate sentences on the most serious of crimes, even when appropriate equates to several more years behind bars. It would be incongruous not to accord district court judges the same power, the same discretion, in fashioning appropriate sentences on the low-level offenses which have formed the bulk of the Krotzer progeny.

I can only note that to this same district court judge, in her same court, on that same day, in Hennepin County, and the district court judges all around the state in all 87 counties, the state will be routinely asking for upward departures on felony cases of 5, 10, 15 years, and beyond. Yet here the state quibbles over a minute downward departure to a stay of adjudication.

In the post-Krotzer cases, one of the state's arguments was that stays of adjudication do not give the defendant a criminal history score point, and that somehow that is important for record keeping. So what? Misdemeanor criminal history score points, with one exception, are de minimis. Misdemeanor units count only for fractional points, usually a quarter, and then can only be totaled up to a maximum of one full point, regardless of their number. Minn. Sent. Guidelines II.B.3 provides that "no offender shall receive more than one point for prior misdemeanor or gross misdemeanor convictions." The only exception, one not an issue, is if the crime under consideration is for the felony of criminal vehicular homicide or injury. Id. Then selected fractional misdemeanor units accrued for driving while under the influence and related offenses can be totaled past one. Id. (stating previous violations of Minn. Stat. §§ 169.121 (driving under the influence), 169.1211 (driving commercial vehicle after consuming alcohol), and 169.129 (driving under the influence before license reinstatement after alcohol-related offense) assigned two units each and there is no limit on total number of misdemeanor points in criminal history score for DWI violations). That scoring past one is perfectly appropriate should that ever happen. If the current conviction is for the felony of criminal vehicular homicide or injury, you likely will not see district courts considering a stay of adjudication. But when the offense before the district court is shoplifting of a small amount of food for one's own use, or a small amount of Similac to feed a hungry baby, whether the offender gathers a quarter criminal history point or not is of no consequence. See Thoma, 569 N.W.2d at 206 (stating individual respondents were charged for (1) changing price tags at supermarket, resulting in $12.37 bill reduction; (2) shoplifting $100.37 in Similac and baby care items; (3) shoplifting two items with total value of $13.06; (4) shoplifting $7.73 in coffee and other merchandise). Those district court judges were not releasing Clyde Barrow or Ma Barker upon the world. The district court knew better, the criminal defense attorney knew better, the prosecution should have known better, and the appellate court system should know better.

Common sense, judgment, and due process tell us that with district court discretion to impose lengthy upward departures on felonies, there has to be district court discretion on low-level offenses to fashion a just and equitable sentence. That is precisely what judging is all about at the sentencing stage. That is precisely what a long history of cases, including Krotzer, tell the prosecution that they cannot interfere with. The prosecution can make recommendations, they can make tentative plea bargains and they can withdraw from them, but they only charge crimes. Judges sentence for them.

On appeal, we are bound to respect the record of the district court. Appellate courts have the power to affirm or modify or outright reverse, but we do not have the power to change the record. The district court record in this case is not a record of a pretrial omnibus hearing. It is not a record of diversion or de novo treatment for respondent. The record specifically shows that diversion was available for female prostitutes, but not for respondent, a prostitute's patron. The district court listened to the charge, listened to respondent's plea of guilty, elicited through a question and answer session the essential elements of the crime, found respondent guilty, stayed formal adjudication of guilt, and then imposed a sentence. The district court judge crafted a thoughtful, well-reasoned sentence based on sound principles, meaning the announced disparate policy of the City of Minneapolis between first-time prostitution and first-time patrons. The majority points out that there may be some valid basis for the different treatment of genders. I have no quarrel with the majority's analysis. It would not have been inappropriate for this district court judge to impose on respondent the sentence the city asked for. It would not have been improper for the court to impose on respondent a sentence utilizing stay of imposition. Sentencing appeals are not about "the perfect sentence." They are about whether the record supports what the district court did. The concept of a reasonable and fair sentence always, by definition, has a high-low range. Prosecutors and criminal defense attorneys have acknowledged the existence of a reasonable range for the almost 20 years the Minnesota Sentencing Guidelines have been in effect. This is not new law. District courts at sentencings have always had different appropriate options open to them. It is the selection from a list of appropriate options that is the essence of the district court's inherent power to use discretion. The simple issue here is whether the district court abused its discretion with this minute downward departure. The issue is not whether the City of Minneapolis recommended an untenable or unethical sentence. The defense attorney recommended a permissible sentence. The city recommended a permissible sentence. The city just did not get its way.

Here, having due respect for the record laid by the district court, I conclude the district court's sentence is unassailable, unreviewable (except, as stated, I recognize a de facto exception on misdemeanors inferred in Cash), and unimpeachable.

As stated, Krotzer was well written and sound. It found no interference with prosecutorial discretion, no separation of powers issue. Krotzer had none and there are none. The only separation of powers issue was the state trying to interfere with the district court's power to sentence, Krotzer quelled that, and reaffirmed that principle.

 Krotzer and its progeny need to be, not "revisited," but "visited" because if done with an eye toward the criminal rules and criminal justice; with an eye toward the difference between pretrial omnibus hearings which take place before trial, and sentencing hearings which take place only after a trial or a plea of guilty; with an eye toward the taking of a plea of guilty and what has to be done before a citizen can be jailed; if taken with an eye toward the district court record and not with a blind eye toward the district court record; and if taken with an eye toward the long-established power of district courts to use reasonable discretion in sentencing, the visit will be a good one--and it will be the first one.

I respectfully dissent and would have affirmed the district court.