State v. Hernandez, 81-977.
| Citation | 311 NW 2d 478 |
| Decision Date | 26 October 1981 |
| Docket Number | No. 81-977.,81-977. |
| Parties | STATE of Minnesota, Respondent, v. Jeffrey Scott HERNANDEZ, Appellant. |
| Court | Supreme Court of Minnesota (US) |
Neighborhood Justice Center, Lawrence Laine, St. Paul, for appellant.
Warren Spannaus, Atty. Gen., Tom Foley, County Atty., Steven DeCoster, Asst. County Atty., St. Paul, for respondent.
Considered and decided by the court en banc without oral argument.
The issue on this sentencing appeal is whether the trial court, in sentencing a defendant on the same day for three separate convictions of offenses which were not part of a single behavioral incident or course of conduct but which occurred at different times and involved different victims, could count the first and second convictions in determining the criminal history score used in determining the presumptive sentence for the third conviction.
On January 22, 1981, while on probation, defendant, age 19, was caught by St. Paul police as he attempted to commit a residential burglary. A search of defendant and his accomplice resulted in the discovery of property taken in the burglary of another residence that evening. Defendant was charged with two counts of attempted burglary and one count of aggravated criminal damage to property.
On February 25, 1981, Mounds View police arrested defendant for his participation with another person in a residential burglary committed earlier that day. Defendant was charged with burglary and theft.
While in custody, defendant cooperated with Officer Walter Robillard of the St. Paul Police Department and admitted having participated in approximately 50 burglaries on the east side of St. Paul and in the Maplewood area. As part of his investigation, Robillard would take defendant on drives through neighborhoods and defendant would point out houses he had burglarized. On one such outing, on March 13, they stopped at defendant's family home. While Robillard was talking with defendant's father in the living room, defendant went into the kitchen and then ran out the back door. For this defendant was charged with escape from custody.
On April 10, defendant, represented by an attorney, pled guilty to attempted burglary in connection with the January 22 incident, theft in connection with the February 25 incident, and escape from custody on March 13. It was agreed that another complaint, charging him with theft in connection with a January 5 burglary, would be dismissed, that defendant would not be charged with any of the other 50 burglaries to which he confessed, that sentencing would be concurrent even for the escape, and that defendant would testify against his "fence."
In determining the criminal history score for each offense on which defendant was to be sentenced, the agent preparing the presentence investigation report relied upon Minnesota Sentencing Guidelines and Commentary, II.B.1. and Comment II.B.101 (1980), which provide that the defendant is given one criminal history point for every felony conviction on which a sentence was stayed or imposed before the date of the current sentencing. Since defendant was to be sentenced for each of the three offenses on the same date, defendant was given a criminal history score of three for each offense: one for his juvenile record, one for the prior felony for which he was sentenced in 1980, and one for the fact that he committed the offenses while on probation. This meant that the presumptive sentence lengths for the new offenses were as follows: 1 year and 1 day stayed for attempted burglary (severity level IV), 19 months stayed for theft (severity level III), and 19 months stayed for escape (severity level III).
The presentence investigation report recommended a departure in the form of a 60-month prison term because of defendant's continued criminal behavior and negative lifestyle.
At the departure hearing, held on May 26, defense counsel argued strongly against departure. The prosecutor, after referring to the large number of burglaries defendant had admitted, stated in relevant part as follows:
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