State of Minnesota v. Darren Clinton ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1235
State of Minnesota,
Respondent,
vs.
Darren Clinton,
Appellant.
Filed March 28, 2016
Reversed and remanded; motion denied
Ross, Judge
Hennepin County District Court
File No. 27-CR-14-26898
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, St. Paul, Minnesota (for
appellant)
Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith, Tracy,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
Darren Clinton pleaded guilty to selling fake drugs to an undercover officer and was
conditionally released before sentencing. According to his plea agreement, if he returned
for the sentencing hearing, the district court would sentence him to a year and a day in
prison (a term that departs downward from the guidelines’ presumptive sentence), but if he
failed to appear, the district court would sentence him to 24 months in prison (a term that
departs upward from the presumptive sentence). When Clinton failed to appear, the district
court sentenced him to 24 months in prison. Clinton appeals his sentence, arguing there is
no basis for the upward departure. The state agrees, and so do we, so we reverse and remand
for resentencing.
FACTS
In September 2014, Clinton sold a substance resembling crack cocaine to an
undercover police officer. Police arrested him and he pleaded guilty to violating Minnesota
Statutes section 152.097, subdivision 1(3) (2014). Under his plea agreement with the state,
Clinton would be sentenced either to 366 days in prison or 24 months in prison, depending
on whether he appeared for his scheduled sentencing hearing. The problem is, neither the
carrot-sentence nor the stick-sentence fell within the guidelines’ presumptive sentence of
17 to 22 months.
Clinton failed to appear. Police eventually arrested him and he appeared for
sentencing. His attorney argued that the district court could not impose a 24-month
sentence despite the plea agreement. The district court stated that Clinton had agreed to the
sentence by entering the plea agreement and by failing to appear for sentencing. Clinton’s
attorney explained that a 24-month sentence constitutes an upward durational departure
unsupported by any aggravating factors. The district court replied that its reason for
2
departing was that Clinton absconded. The district court imposed the 24-month sentence.
Clinton appeals.
DECISION
We first address a motion that Clinton filed, seeking our expedited review. The
special rules of practice contemplate motions to expedite the scheduling of cases based on
a good-cause showing. Minn. App. Spec. R. Pract. 1. But Clinton does not rely on that rule,
and, in any event, he could not rely on it because he did not file his motion until only five
days before our scheduled conference—too late for him to benefit from rescheduling. His
motion seeks expedited review because he is scheduled to be released from prison before
the end of our 90-day statutory deadline for releasing decisions. His motion relies on
Minnesota Rules of Civil Appellate Procedure 102, 126.02, and 127, but none of these
rules contemplates a motion to expedite our consideration of a case that has already been
heard. Although we do not grant the motion for these reasons, we observe that the state has
responded in support of it, and we accommodate it as a reasonable request under the slightly
urgent circumstances.
Clinton argues that the district court abused its discretion by imposing an upward
departure based only on the plea agreement. The state supports Clinton’s argument and
asks that we remand for resentencing. Clinton’s argument and the state’s concession are
well supported. We review a district court’s decision to depart from the sentencing
guidelines for an abuse of discretion. State v. Hicks, 864 N.W.2d 153, 156 (Minn. 2015).
The district court must articulate substantial and compelling reasons to support a sentence
that departs from the guidelines, establishing that the defendant’s conduct was either
3
significantly more or less serious than conduct typically involved in the crime of
conviction. Id. at 156–57. A plea agreement standing alone cannot constitute a substantial
and compelling circumstance to depart. State v. Misquadace, 644 N.W.2d 65, 72 (Minn.
2002). Even when a plea agreement proposes a sentencing departure, the district court must
still determine whether the offense includes any aggravating or mitigating circumstances
warranting a departure. Id. at 71. The district court did not point to any facts indicating that
Clinton’s offense was more serious than the typical crime of simulating the sale of
narcotics.
Although the parties agree that the district court erred, they do not agree on the
precise remedy. We turn to that dispute.
While the state agrees that we must remand for resentencing, it implies that an
upward durational departure is supported by the record because Clinton’s absconding
before sentencing shows lack of remorse. The argument is not compelling. To impose a
durational departure, the district court may consider only offense-related factors, not
offender-related characteristics. State v. Chaklos, 528 N.W.2d 225, 228 (Minn. 1995).
Remorse is generally an offender-related characteristic, though it may be a durational
consideration in situations that do not resemble the present facts. See State v. Solberg, 869
N.W.2d 66, 70 (Minn. App. 2015) (observing that remorse may be a consideration for
durational departures if it bears on the seriousness of the offense), review denied (Minn.
Nov. 17, 2015). Nothing identified by the state or apparent in the record supports a
departure from a presumptive sentence.
4
The state also suggests that we instruct the district court on remand to allow Clinton
to withdraw his guilty plea. But this is not the remedy Clinton seeks. Clinton urges that we
direct the district court to impose a 19-month prison sentence, which he maintains is the
presumptive sentence. The guidelines provide a presumptive range for Clinton’s prison
term, not a specific presumptive term. State v. Delk, 781 N.W.2d 426, 428 (Minn. App.
2010), review denied (Minn. July 20, 2010). It is true that 19 months is the center of that
range, but the district court has discretion to impose a sentence as it sees fit anywhere
within the range. State v. Starnes, 396 N.W.2d 676, 681 (Minn. App. 1986). We therefore
reverse Clinton’s sentence as constituting an unsupported upward departure, and we
remand for the district court to resentence Clinton within the presumptive range at its
discretion.
Reversed and remanded; motion denied.
5