State of Minnesota, Respondent, vs. Michael Anthony Lee, Appellant.

State of Minnesota, Respondent, vs. Michael Anthony Lee, Appellant. A06-1177, Court of Appeals Unpublished, July 10, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1177

 

State of Minnesota,
Respondent,
 
vs.
 
Michael Anthony Lee,
Appellant.

 

Filed July 10, 2007

Reversed and remanded

Wright, Judge

 

Dakota County District Court

File No. K5-05-2827

 

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

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN  55033 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Wright, Judge; and Harten, Judge.*

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

Appellant challenges his enhanced sentence for third-degree criminal sexual conduct, arguing that the district court abused its discretion byfailing to articulate reasons demonstrating why an upward departure from the presumptive guidelines sentence was appropriate.  Appellant also argues that the ten-year conditional-release term must be reduced to five years.  We reverse and remand.

FACTS

In 2006, appellant Michael Lee was convicted of third-degree criminal sexual conduct, a violation of Minn. Stat. § 609.344, subd. 1(b) (2002), for engaging in sexual conduct with a 13-year-old in 2002.  Lee entered a guilty plea pursuant to a plea agreement in which the parties agreed to a 28-month executed sentence with a conditional-release term of ten years.  At the sentencing hearing, rather than imposing the presumptive guidelines sentence of 28 months stayed, the district court honored the terms of the parties' plea agreement and imposed the 28-month executed sentence with ten years of conditional release.  The colloquy proceeded as follows:

THE COURT: Mr. Lee, do you understand the proposed settlement?

THE DEFENDANT: Yes.

THE COURT: And is that what you want to do?

THE DEFENDANT: Yes.

THE COURT: Including executing your sentence?

THE DEFENDANT: Yes.

 

Lee waived his right to a jury determination of whether aggravating factors exist to justify an upward departure from the presumptive guidelines sentence.  This appeal followed.

D E C I S I O N

 

Lee argues that the district court failed to articulate reasons justifying an upward departure from the presumptive sentence and, therefore, the departure was not authorized.  We review a district court's departure from the sentencing guidelines for an abuse of discretion.  State v. Geller, 665 N.W.2d 514, 516 (Minn. 2003). 

The sentencing guidelines in effect at the time Lee committed his offense required a judge who imposed a sentence that departed from the presumptive guidelines sentence to "provide written reasons which specify the substantial and compelling nature of the circumstances, and which demonstrate why the sentence selected in the departure is more appropriate, reasonable, or equitable than the presumptive sentence."  Minn. Sent. Guidelines II.D; see Minn. R. Crim. P. 27.03, subd. 4(C) (stating that district court is required to state reasons for departure on the record).  If the district court fails to state the reasons for departure at the time of sentencing, the departure is not allowed.  Geller, 665 N.W.2d at 517; see State v. Rannow, 703 N.W.2d 575, 579-80 (Minn. App. 2005) (holding that district court abused its discretion by imposing consecutive sentences without identifying on the record aggravating circumstances justifying departure). 

A plea agreement cannot in itself form the basis for a sentencing departure.  State v. Misquadace, 644 N.W.2d 65, 71 (Minn. 2002); Rannow, 703 N.W.2d at 579.  Rather, when reviewing a plea agreement that includes a sentencing departure, the district court is required to determine whether the offenses reflect any aggravating or mitigating circumstances that warrant a departure and articulate these "substantial and compelling" circumstances on the record.  Misquadace, 644 N.W.2d at 71-72. 

The record demonstrates that the district court's imposition of the upward sentencing departure was in accordance with the terms of the parties' plea agreement and was not the result of a demand for an executed sentence as contemplated by State v. Rasinski, 472 N.W.2d 645, 650 (Minn. 1991) (holding that defendant has right to refuse probation and demand execution of sentence).  The presumptive guidelines sentence was a 28-month term of imprisonment with a stay of execution and five years of conditional release.  During the guilty-plea hearing, Lee acknowledged that he had reviewed his plea agreement and that there was "some peripheral exposure [he] may have, potential commitment proceedings and things of that nature."  He also acknowledged that, under the plea agreement, he would receive an executed sentence.  But when the district court imposed a 28-month executed sentence and ten years of conditional release, it failed to articulate the aggravating circumstances justifying the upward sentencing departure.  In doing so, the district court abused its discretion.  Under Geller, reversal and a remand for imposition of the presumptive guidelines sentence are mandated.  665 N.W.2d at 517.[1] 

Lee also argues that his conditional-release term must be modified from ten to five years because he had not been convicted of a sex offense at the time he committed the instant offense.  The district court must order conditional release for a term of ten years if the defendant's conviction was "after a previous sex offense conviction as defined in subdivision 5."  Minn. Stat. § 609.109, subd. 7 (2002).  Subdivision 5 provides that a conviction is a previous sex-offense conviction if "the person was convicted of a sex offense before the commission of the present offense of conviction."  Id., subd. 5 (2002). 

In an unrelated matter, Lee committed and was convicted of third-degree criminal sexual conduct in 2004.  Lee, therefore, committed the 2004 offense before he was convicted of the instant offense in 2006 but after he committed the instant offense in 2002.  Because Lee had not been convicted of a sex offense when he committed the instant offense in 2002, a five-year term of conditional release is warranted.  Thus, the district court erred when it imposed ten years of conditional release.  Id., subd. 7.

For the foregoing reasons, we reverse and remand to the district court with instructions to impose the presumptive guidelines sentence of 28 months' imprisonment with a stay of execution and five years of conditional release.

Reversed and remanded.

 

 

 

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

 

[1] In light of our decision, we need not address Lee's argument that his waiver of a jury determination of aggravating factors used to enhance his sentence was invalid.