State of Minnesota v. Toni Ann Olmstead ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0934
State of Minnesota,
Respondent,
vs.
Toni Ann Olmstead,
Appellant.
Filed December 8, 2014
Affirmed in part, reversed in part, and remanded
Chutich, Judge
Hennepin County District Court
File Nos. 27-CR-10-18387
27-CR-12-22133
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sharon E. Jacks, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Chutich, Judge; and Reilly,
Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Toni Ann Olmstead challenges the district court’s imposition of
consecutive 43-month and 46-month prison sentences for a probation violation. Because
we hold that the district court correctly specified that both sentences were to run
consecutively during the pertinent hearing, we affirm in part. But because the district
court used an incorrect criminal history score in calculating the duration of the 46-month
sentence, we reverse the imposition of that sentence and remand for resentencing.
FACTS
Olmstead has a long history of felony stalking and harassment-related offenses
against L.S. dating back to at least 2006, when she was first charged with felony stalking
of L.S. and then convicted. In 2010, Olmstead was again charged with felony stalking of
L.S. She pleaded guilty to one amended count of attempted stalking and one count of
stalking. Olmstead was sentenced to a 19-month prison term on count one, followed
consecutively by a 43-month prison term, stayed for a probationary period of five years,
on count two.
In 2012, after serving the 19-month sentence and while on probation for the 43-
month consecutive term, Olmstead was arrested at L.S.’s home and was again charged
with felony stalking. She pleaded guilty to the lone count. The new felony conviction
was deemed a violation of the terms of Olmstead’s probation on the 2010 case.
On April 23, 2013, the district court held a joint hearing concerning the probation
violation and sentencing for the new stalking conviction. Regarding Olmstead’s
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probation violation on her 2010 criminal conviction, Olmstead admitted that she violated
the terms of her probation by committing the new stalking offense. The district court
imposed a sanction of 365 days in jail with the opportunity for Olmstead to be furloughed
to various treatment programs.
The district court then sentenced Olmstead for the new 2012 felony stalking
conviction. During the sentencing hearing, the district court engaged in an extensive
colloquy that addressed Olmstead’s history of stalking the victim and the district court’s
reasoning for its sentencing decision. The district court sentenced Olmstead to a 46-
month prison term and stayed execution of the sentence for six years. The sentence was
a downward dispositional departure based on the availability of treatment and Olmstead’s
acceptance of responsibility. But the district court specifically warned Olmstead that she
was “looking down a barrel of 46 months consecutive to the 43 months [she had] hanging
over [her] head” should she commit any further violations of the probationary conditions.
Several months later, Olmstead violated the conditions of her probation and of the
treatment program that she was in by consuming alcohol. She admitted to the violation,
and in March 2014, the district court revoked the stays of Olmstead’s 43-month and 46-
month sentences. The district court executed the sentences and ordered that they run
consecutively. This sentencing appeal followed.
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DECISION
I.
“The court may at any time correct a sentence not authorized by law.” Minn. R.
Crim. P. 27.03, subd. 9. Olmstead argues that the district court sentenced her to
consecutive terms in contravention of Minnesota Statutes section 609.15, subd. 1 (2012).
Whether a statute has been properly construed is a question of law subject to de novo
review. State v. Gilbert, 634 N.W.2d 439, 441 (Minn. App. 2001), review denied (Minn.
Dec. 11, 2001).
Minnesota law provides:
[W]hen separate sentences of imprisonment are imposed on a
defendant for two or more crimes, whether charged in a single
indictment or information or separately, or when 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.
Minn. Stat. § 609.15, subd. 1. The district court is also required to “[s]tate precisely the
terms of the sentence” at the time it imposes the sentence. Minn. R. Crim. P. 27.03, subd.
4(A); see also State v. Wakefield, 263 N.W.2d 76, 78 (Minn. 1978) (providing that
“precise terms of the sentence” include whether multiple sentences are to run
concurrently or consecutively).
“[T]he traditionally recognized goal of consecutive sentencing is to impose a
longer single period of incarceration.” Pageau v. State, 820 N.W.2d 271, 279 (Minn.
App. 2012); see also Minn. Sent. Guidelines cmt. 2.F.01 (2012) (“Consecutive sentences
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are a more severe sanction because the intent is to confine the offender for a longer
period than under concurrent sentences.”). Consecutive sentences are considered
permissive if (1) the presumptive disposition for the current offense is commitment and
(2) the current offense is being sentenced consecutively to a prior felony sentence that has
not expired or been discharged if the prior felony conviction is for an offense eligible for
permissive consecutive sentences. Minn. Sent. Guidelines 2.F.2.a.(1)(i) (2012). The
stalking offense at issue here is an offense eligible for permissive consecutive sentencing.
Minn. Sent. Guidelines 6 (2012).
Applying these principles here, we conclude that the district court correctly
imposed consecutive sentences. During its sentencing colloquy in April 2013, the district
court stated:
I want to incorporate my sentencing structure on the
probation file with this one. So, in essence, I’m going to try it
this way. I’m going to order that you abide by all terms and
conditions of [p]robation on File 27-CR-10-18387.
To be clear, Madam, that means that the same conditions
that I’ve imposed in [the sentencing] file will continue in [the
probation violation] file. In other words[,] . . . a lot of these
will become [moot] because you would have [ostensibly]
completed your Metro Re-Entry, your 180, your Headway
Emotional, etc., and you would have satisfied those things.
But I’m incorporating those same orders into this file and so,
if you violate those, you’re also going to be in violation of
this current sentence as well. And then you’re looking down a
barrel of 46 months consecutive to the 43 months you hav[e]
hanging over your head.
(Emphasis added.) The district court specified that the sentences were to run
consecutively when it explained the conditions of Olmstead’s probation. Olmstead
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argues that when the district court mentioned that the sentences would run consecutively,
it had already completed pronouncing her sentence and, thus, the mention of the
consecutive nature of the sentences was not part of the actual sentencing. This argument
fails, however, because the district court continued to impose the exact terms of
Olmstead’s sentence, including all of the terms of her probation, after this point in the
sentencing hearing.
Olmstead further contends that because the district court never mentioned the
consecutive nature of the sentences in its written sentencing order, the sentences should
be presumed to run concurrently. Minnesota law establishes, however, that “an orally
pronounced sentence controls over a judgment and commitment order when the two
conflict.” State v. Staloch, 643 N.W.2d 329, 331 (Minn. App. 2002) (quotation omitted).
To be sure, the judgment and commitment order is evidence that “may be used to
determine the intended sentence,” but only “[w]hen an orally pronounced sentence is
ambiguous.” Id. (quotation omitted). The written order helps to “clarify an ambiguous
oral sentence by providing evidence of what was said from the bench.” Id. (quotation
omitted).
Here, despite the length of the April 2013 sentencing transcript, the district court’s
intent to impose consecutive sentences, were they to be later executed, is clear. The
entire record shows that the district court intended to offer Olmstead one last chance to
receive treatment to stem her persistent pattern of stalking behavior before adopting the
state’s contention that the safety of the victim could only be assured by incarcerating
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Olmstead for the longest possible period. Accordingly, we affirm the district court’s
imposition of consecutive sentences.
II.
Olmstead next contends that the duration of the second consecutive term must be
reduced from 46 months to 18 months to conform to the Minnesota Sentencing
Guidelines and applicable caselaw. We agree.
“For each felony offense sentenced consecutively to another felony offense(s), the
court must use a Criminal History Score of 0, or the mandatory minimum for the offense,
whichever is longer, to determine the presumptive duration.” Minn. Sent. Guidelines
2.F.2.a (2012). Stalking in violation of Minnesota Statutes section 609.749, subdivision
4(b), is a severity level 5 offense. Minn. Sent. Guidelines 5.A (2012). In 2013, when
Olmstead was sentenced, the presumptive sentence for a severity level 5 offense with
zero criminal history points was 18 months. Minn. Sent. Guidelines 4.A (2012)
(sentencing grid).
Olmstead’s consecutive sentence of 46 months for the 2012 offense was arrived at
through an improper enhancement of her criminal history score to seven, using
Olmstead’s felony and custody status points. This enhancement may only be used when
sentencing concurrently, not when sentencing consecutively. See Minn. Sent. Guidelines
2.F.2.a. The consecutive sentence of 46 months must be reduced to 18 months to
conform with section 2.F of the sentencing guidelines.
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Because the district court incorrectly computed the sentence duration for
Olmstead’s consecutive sentence, we reverse the district court’s imposition of the 46-
month sentence and remand for resentencing.
Affirmed in part, reversed in part, and remanded.
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