State of Minnesota, Respondent, vs. Akeen Elijah Porte, 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This opinion will be unpublished and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

A03-1966

 

 

State of Minnesota,
Respondent,
 
vs.
 
Akeen Elijah Porte,
Appellant.

 

 

Filed November 9, 2004

Affirmed in part and reversed in part Wright, Judge

 

Dakota County District Court

File No. K7-03-363

 

 

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

 

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

 

James C. Backstrom, Dakota County Attorney, Joseph K. Boche, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)

 

            Considered and decided by Wright, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WRIGHT, Judge

Appellant challenges his conviction of first-degree driving while impaired, contending that (1) his stipulation to two prior license revocations is insufficient to prove the existence of enhancement factors that are an element of the offense; (2) the district court failed to dismiss one of two convictions arising out of a single behavioral incident; and (3) the district court improperly ordered that his sentence be served consecutive to sentences for prior offenses.  We affirm in part and reverse in part.

FACTS

 

            Appellant Akeen Porte was charged with two counts of first-degree driving while impaired (DWI) and one count of driving after cancellation arising from his driving conduct in Dakota County on January 30, 2003.  One count charged Porte with driving a vehicle while under the influence of alcohol, a violation of Minn. Stat. §§ 169 A. 20, subd. 1(1), .24, subd. 1(1) (2002).  The second count charged Porte with having an alcohol concentration of .10 or more within two hours of driving, a violation of Minn. Stat. §§ 169 A. 20, subd. 1(5), .24, subd. 1(1) (2002).  The third count charged Porte with driving without a valid driver's license, a violation of Minn. Stat. § 171.24, subd. 5 (2002).

            Prior to the jury trial, Porte stipulated that, for purposes of establishing the enhancement factors required for first-degree DWI, he had been involved in three qualifying impaired-driving incidents during the ten years prior to the instant offenses.  As a result, the state did not present evidence on the enhancement-factors element of the charged offenses, and the district court did not submit this factual issue to the jury.  The jury subsequently found Porte guilty of the charged offenses.

            The district court sentenced Porte to 66 months' imprisonment on one count of DWI, dismissed the other DWI offense, and imposed a one-year concurrent sentence for driving without a valid license.  Because Porte was on probation for two DWI offenses committed in Olmsted County, the district court ordered Porte to serve his 66-month sentence consecutive to the sentences for the Olmsted County offenses.  This appeal followed.

D E C I S I O N

 

            Porte first asserts that his two prior driver's license revocations for test refusal do not establish proof of the enhancement-factors element of first-degree DWI.  He contends that, because no proof was offered that either of the test refusals arose out of an "alcohol-related incident," there is insufficient evidence that the resulting license revocations are "qualified prior impaired driving incidents" enhancing his offense to first-degree DWI. 

                By entering into a stipulation on this element of each DWI offense, Porte waived his right to challenge the proof of that element.  See State v. Berkelman, 355 N.W.2d 394, 397 (Minn. 1984).  The stipulation also prevents meaningful appellate review because there is no record aside from the stipulation colloquy on which to determine whether Porte's test refusals arose out of an "alcohol-related incident."  Indeed, the following colloquy provides the sole discussion of the factual basis for the stipulation:

 

THE COURT:  [Counsel], do you wish to stipulate to your client's prior DWI convictions and license revocations, so that the jury is not informed about those?

 

[COUNSEL:]  Yes, Your Honor.

 

THE COURT:  And specifically those would be that his license was revoked for refusing to provide a breath test on June 2 of 2002 and on March 7, 2002.  And [on] September 16, 2001, his license was revoked for providing a breath sample with an Alcohol Concentration of .10 Or More, is that correct?

 

[COUNSEL:]  That's correct.

 

THE COURT:  You stipulate to that?

 

[COUNSEL:]  Yes.

 

Accordingly, we decline to address the merits of this issue.

 

            Porte next argues that the district court improperly adjudicated him guilty of two counts of first-degree DWI arising out of a single behavioral incident.  See Minn. Stat. § 609.035, subd. 1 (2002).  But on this issue, Porte misstates the record.  Although the jury found Porte guilty of two counts of first-degree DWI, the district court dismissed one count at sentencing.  Thus, the facts in the record do not support Porte's argument for relief.

            Porte also argues that the district court erred when it ordered the sentence imposed here to be served consecutively to the Olmsted County DWI sentences.  Interpretation of a sentencing statute presents a question of law, which we review de novo.  State v. Gilbert, 634 N.W.2d 439, 441 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).

            A district court's authority to impose consecutive sentences for separate prosecutions is governed by Minn. Stat. § 609.15, subd. 1 (2002), which provides in relevant part:

[W]hen a person who is under sentence of imprisonment in this state is being sentenced to imprisonment for another crime committed prior to or while subject to such former sentence, the court in the later sentences shall specify whether the sentences shall run concurrently or consecutively.  If the court does not so specify, the sentences shall run concurrently.

 

Thus, when two district courts impose separate sentences against the same defendant, only the "later sentencing court" has the authority to direct that the sentences run consecutively.  State v. Klang, 320 N.W.2d 718, 719 (Minn. 1982).  But if imposition of the earlier sentence has been stayed when a sentence for a subsequent offense is imposed, the district court imposing the sentence for the subsequent offense lacks authority to direct the imposed sentence to run concurrently with a sentence in which the imposition has been stayed.  State v. Stafford, 368 N.W.2d 364, 366 (Minn. App. 1985).

            Porte is on probation for two prior DWI convictions in Olmsted County from February 2002 and May 2002.  Because there was no basis for the district court here to determine whether a sentence had been imposed for the Olmsted County offenses, it was error to direct a consecutive sentence for this conviction.  The imposition of sentence was stayed for the May 2002 conviction.  And the record does not establish whether the sentence was imposed or imposition was stayed for the February 2002 conviction.  Because the district court was not the later sentencing court in relation to the May 2002 conviction and the district court lacked a factual basis to determine whether it was a later sentencing court in relation to the February 2002 conviction, the district court erred in ordering the sentence imposed here to run consecutively with the Olmsted County sentences.  We, therefore, reverse that part of the sentence requiring the 66-month sentence imposed herein to be served consecutively and order that it be served concurrently.

            Affirmed in part and reversed in part.