State of Minnesota v. Glenn Kevin Hazley ( 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This opinion will be unpublished and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
A15-1418
State of Minnesota,
Respondent,
vs.
Glenn Kevin Hazley,
Appellant.
Filed March 14, 2016
Reversed and remanded
Rodenberg, Judge
Hennepin County District Court
File No. 27-CR-14-25709
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Chang Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
On appeal from his probation revocation, appellant Glenn Kevin Hazley
challenges his underlying sentence, arguing that the district court erred by sentencing him
to a 24-month upward durational departure under Minn. Stat. § 609.1095, subd. 4 (2014),
while at the same time staying execution of appellant’s sentence consistent with a plea
agreement. We reverse and remand.
FACTS
Appellant was charged with third-degree burglary in violation of Minn. Stat.
§ 609.582, subd. 3 (2014), for an August 31, 2014 incident. The state gave notice that it
intended to seek an aggravated sentence under the repeat-offender statute, Minn. Stat.
§ 609.1095, subd. 4. In a negotiated plea agreement, appellant pleaded guilty and agreed
to be sentenced under the repeat-offender statute, with the understanding that his
sentence, an imposed but stayed 60-month term of imprisonment, would be both an
upward durational departure and a downward dispositional departure. As part of the
agreement, appellant agreed that the district court could impose the statutory-maximum
term of imprisonment under Minn. Stat. § 609.1095, subd. 4.
In a presentence-investigation report, the reporting probation officer expressed
doubt concerning the district court’s authority “to sentence beyond the presumptive
sentence when the court is not imposing an executed sentence,” citing the language of
Minn. Stat. § 609.1095, subd. 4. The district court, recognizing that the sentence was a
downward-dispositional and upward-durational departure, sentenced appellant to 60
months in prison, stayed execution of the sentence for five years, and ordered appellant to
serve 365 days in jail. The district court based the upward departure on the repeat-
offender statute, Minn. Stat. § 609.1095, subd. 4.
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On June 4, 2015, the district court revoked appellant’s probation and executed
appellant’s 60-month prison sentence. This appeal followed.
DECISION
Appellant appeals from the revocation of his probation. He does not dispute the
district court’s decision to revoke his probation. Instead, for the first time on appeal,
appellant challenges his underlying sentence. The Minnesota Supreme Court has held
that a defendant may challenge the underlying sentence on appeal from an order revoking
probation. State v. Hockensmith, 417 N.W.2d 630, 632 (Minn. 1988); State v. Fields, 416
N.W.2d 734, 736 (Minn. 1987).
A. Appellant’s sentence was unauthorized.
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). Whether the district
court’s departure violated Minn. Stat. § 609.1095, subd. 4, is a legal question that we
review de novo. Vickla v. State, 793 N.W.2d 265, 269 (Minn. 2011). “If reasons
supporting the departure are stated, this court will examine the record to determine if the
reasons given justify the departure.” Williams v. State, 361 N.W.2d 840, 844 (Minn.
1985). “If the reasons given are improper or inadequate and there is insufficient evidence
of record to justify the departure, the departure will be reversed.” Id.The parties agree that the district court’s sentence was not authorized by Minn.
Stat. § 609.1095, subd. 4. The statute provides:
Whenever a person is convicted of a felony, and the judge is
imposing an executed sentence based on a Sentencing
Guidelines presumptive imprisonment sentence, the judge
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may impose an aggravated durational departure from the
presumptive sentence up to the statutory maximum sentence
if the factfinder determines that the offender has five or more
prior felony convictions and that the present offense is a
felony that was committed as part of a pattern of criminal
conduct.
Minn. Stat. § 609.1095, subd. 4 (emphasis added). Here, the district court imposed the
statutory-maximum sentence, but stayed execution of the sentence.
At sentencing, the district court’s sole reason for the upward durational departure
was appellant’s status as a repeat offender under Minn. Stat. § 609.1095, subd. 4. The
district court did not “impose an executed sentence.” Id. Instead, it granted a downward
dispositional departure, staying execution of the sentence. Under its plain language, the
repeat-offender statute does not apply to appellant’s sentence. The sentence was
therefore unauthorized.
B. The invited-error doctrine does not apply.
Although the state agrees that the district court erred in applying the
repeat-offender statute, it asks us to affirm by applying the invited-error doctrine. Under
the invited-error doctrine, “a party cannot assert on appeal an error that he invited or that
could have been prevented at the district court.” State v. Carridine, 812 N.W.2d 130, 142
(Minn. 2012). No Minnesota case applies the invited-error doctrine to an unauthorized
sentence.
The Minnesota Supreme Court has held “that plea agreements cannot form the
sole basis of a sentencing departure.” State v. Misquadace, 644 N.W.2d 65, 71 (Minn.
2002). Misquadace implicitly rejects that a plea agreement permits application of the
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invited-error doctrine to sentence departures. Id. Here, the district court sentenced
appellant according to the plea agreement, and the only reason it gave for the upward
departure was the repeat-offender statute. Because the repeat-offender statute is
inapplicable, only the plea agreement remains to support the departure. Under
Misquadace, that is insufficient. Id.C. Remand.
Appellant asks us to direct the district court to impose a sentence within the
presumptive guidelines range. Generally, we must “remand to the district court for
imposition of the presumptive guidelines sentence” when the district court fails to state a
reason for supporting a departure. State v. Rannow, 703 N.W.2d 575, 580 (Minn. App.
2005) (citing Geller, 665 N.W.2d at 517). But when, as here, the error results from a plea
agreement, the district court on remand is “‘free to consider the effect that changes in the
sentence have on the entire plea agreement’ and could entertain motions to vacate the
conviction and the plea agreement.” State v. Montermini, 819 N.W.2d 447, 455 (Minn.
App. 2012) (quoting State v. Lewis, 656 N.W.2d 535, 539 (Minn. 2003)). We decline to
direct the district court concerning appellant’s sentence on remand, as doing so would be
beyond our proper role as an error-correcting court. Sefkow v. Sefkow, 427 N.W.2d 203,
210 (Minn. 1988). On remand, the district court has discretion to determine the
appropriate lawful sentence.
Reversed and remanded.
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