State of Minnesota, Respondent, vs. Thomas Manuel Hernandez, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-251

 

State of Minnesota,

Respondent,

 

vs.

 

Thomas Manuel Hernandez,

Appellant.

 

Filed September 16, 2003

Reversed and remanded Willis, Judge

 

Pine County District Court

File No. K4-01-1005

 

 

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

 

John Carlson, Pine County Attorney, Courthouse, 315 Main Street South, Pine City, MN  55063-1693 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges the district court's findings of fact supporting an upward departure from the presumptive sentence under the Minnesota Sentencing Guidelines.  Because we conclude that at least one of the district court's findings lacks sufficient evidentiary support, we reverse the sentence and remand to the district court to vacate the departure and impose the presumptive guidelines sentence.

FACTS

On September 9, 2001, appellant Thomas Hernandez was arrested for possession of 109.5 grams of cocaine.  The state charged Hernandez with one count of first-degree controlled-substance crime, in violation of Minn. Stat. § 152.021, subd. 2(1) (2000); one count of second-degree assault with a dangerous weapon, in violation of Minn. Stat. § 609.222, subd. 1 (2000); and one count of violation of an order for protection, in violation of Minn. Stat. § 518B.01, subd. 14 (2000).

            At a hearing on December 9, 2002, Hernandez's attorney announced that a plea agreement had been reached with the state.  Hernandez agreed to plead guilty to third-degree controlled-substance crime, in violation of Minn. Stat. § 152.023, subd. 2(1) (2000), and receive a sentence of 33 to 48 months, which was an upward departure from the presumptive sentence of 27 months under the sentencing guidelines.  In return, the state agreed to dismiss the remaining charges.

            At the hearing, Hernandez testified to provide a factual basis for his guilty plea.  Hernandez said that, at the time of the offense, he was visiting his estranged wife in Pine City, where his brother, Joseph Hernandez, also lived.  Hernandez stated that he had earlier introduced Joseph to a man named Beto.  In a colloquy at the plea hearing, Hernandez's attorney asked him if it was true that on September 9, 2001, he was aware that "an individual from Nebraska [(i.e., Beto)] was going to be delivering some drugs" to Joseph.  Hernandez answered, "Yes." 

Hernandez testified that on September 9, Beto drove to Joseph's trailer in Pine City with the 109.5 grams of cocaine; Joseph was not at his trailer when Beto arrived, and Beto placed the cocaine in the trailer before leaving Pine City.  Hernandez testified further that later that day both he and Joseph were in the trailer with the cocaine.  Hernandez stated that Joseph told him he had to go out to buy cigarettes, and Joseph left him alone in the trailer with the cocaine.  According to Hernandez, Joseph then informed police that Hernandez was in possession of cocaine.  Police arrested Hernandez later that day.

            In sentencing Hernandez, the district court made two findings of fact.  The court first addressed the quantity of cocaine:

I don't have experience with controlled substances, but the people that I communicate with . . . tell me that 109 grams is much more than for personal use.

 

The court also found that the cocaine came from out of state:

[T]he cocaine . . . did come from Nebraska.  Now, whether you were directly involved in that, you indicate otherwise, but . . . law enforcement information would suggest that you had some involvement in that amount of cocaine being introduced into Pine County.

 

Based on these findings, the court imposed a sentence of 42 months in prison, an upward departure from the presumptive sentence of 27 months under the sentencing guidelines.  Hernandez appeals his sentence.

D E C I S I O N

The decision to depart from the sentencing guidelines rests within the district court's discretion and will not be reversed absent an abuse of that discretion.  State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996).  A "sentencing court has no discretion to depart from the sentencing guidelines unless aggravating or mitigating factors are present."  State v. Spain, 590 N.W.2d 85, 88 (Minn. 1999) (citation omitted).  "When a district court departs [from the sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure."  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citation omitted).

            A court may impose an upward departure from the sentencing guidelines if the offense is

a major controlled substance offense, identified as an offense . . . related to trafficking in controlled substances under circumstances more onerous than the usual offense.  The presence of two or more of the circumstances listed below are aggravating factors with respect to the offense:

 

            . . . .

 

            (b) the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or

 

            . . . .

 

            (f) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement[.]

 

Minn. Sent. Guidelines II.D.2.b.(5)(b), (f).[1]  A plea agreement that allows an upward departure from the presumptive sentence without evidence of aggravating factors does not support the imposition of the upward departure.  State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002).  When the record on appeal does not contain sufficient evidence that a drug offense qualifies as a "major controlled substance offense" under Minn. Sent. Guidelines II.D.2.b.(5), the supreme court has reversed the sentence and remanded with instructions to vacate the departure and impose the presumptive sentence under the guidelines.  State v. McIntosh, 641 N.W.2d 3, 12 (Minn. 2002).

            Hernandez challenges the district court's findings that the cocaine was transported from Nebraska and that the amount of cocaine was greater than necessary for personal use.  We first consider the finding that the cocaine came from Nebraska.  At the plea hearing, Hernandez testified only that Beto was "from Nebraska," not that the cocaine was brought from Nebraska.  There is no evidence in the record indicating where Beto obtained the cocaine.  We conclude, therefore, that there is no evidence to support a finding that the offense "involved a broad geographic area of disbursement."  Accordingly, we need not discuss whether the finding that the quantity of cocaine was substantially larger than for personal use has evidentiary support.  Thus, we reverse Hernandez's sentence and remand to the district court to vacate the sentencing departure and impose the presumptive sentence of 27 months' imprisonment.

            Reversed and remanded.

[1] Though the sentencing guidelines provide seven possible aggravating factors that can transform a drug offense into a "major controlled substance offense," we address only the two factors considered by the district court.