State v. McIntosh
| Decision Date | 21 March 2002 |
| Docket Number | No. C9-00-1054.,C9-00-1054. |
| Citation | 641 N.W.2d 3 |
| Parties | STATE of Minnesota, Respondent, v. Charles Theo McINTOSH, Petitioner, Appellant. |
| Court | Minnesota Supreme Court |
Michael A. Hatch, Attorney General, Thomas R. Ragatz, No. 236822, Assistant Attorney General, St. Paul, MN, Raymond F. Schmitz, No. 97159, Olmsted County Attorney, Rochester, MN, Respondent's.
Michael F. Crommett, No. 19896, Assistant State Public Defender, Minneapolis, MN, Appellant's.
Heard, considered, and decided by the court en banc.
Appellant Charles Theo McIntosh was charged with and convicted of four controlled substance offenses for selling crack cocaine. On the fourth conviction, controlled substance offense in the second degree for the sale of 3 grams or more of cocaine as defined in Minn.Stat. § 152.022 (1998), the district court upwardly departed from the presumptive guideline sentence of 98 months and imposed a sentence of 122 months on the ruling that the sale was a "major controlled substance offense" as defined in Minnesota Sentencing Guidelines II.D.2.b(5). The court of appeals affirmed that ruling. We conclude that the record does not support the ruling that the sale constituted a major controlled substance offense. We therefore reverse, vacate the sentencing departure, and remand to the district court for the imposition of the presumptive guidelines sentence.
In late 1998 an informant notified Rochester, Minnesota police that appellant was selling crack cocaine and the informant agreed to purchase drugs as part of an investigation. Over the course of six weeks the informant purchased crack cocaine from appellant or his associates in five "controlled buys," two of them with an undercover detective. The first purchase occurred on November 25, 1998, when the informant and appellant arranged to meet at a grocery store. At the store the informant met Jeremy Wiley who told the informant he was with "Bullet," appellant's street name. The informant purchased 1.3 grams of crack cocaine from Wiley.1 At trial Wiley testified that he received the crack cocaine from appellant, gave the informant's money to appellant, and made the sale to the informant because appellant asked him to do so. Wiley also testified that he and appellant traveled to Chicago together to procure powder cocaine which appellant processed into crack cocaine upon their return, and that appellant sometimes had Wiley drive to drug transactions.
A second transaction took place on November 27, 1998, when Wiley drove appellant to the sale and the informant gave appellant $500 for 2.3 grams of crack cocaine.
The third transaction occurred on December 7, 1998, after the informant called appellant's cell phone and spoke with appellant's associate Lana Tzul.2 When appellant arrived at their designated meeting place the informant got into the back seat of the vehicle with Tzul who explained that appellant was not talking much because he was "just really crabby." In the transaction appellant handed the two rocks, weighing 3.2 grams and 2.9 grams, to Tzul who then handed them to the informant.
The informant and an undercover police officer subsequently bought a total of 34.9 grams of crack cocaine from appellant's associates in two transactions. Testimony relating to those sales revealed that Tzul told the informant "talking to me is like talking to [appellant]."3 The state ultimately charged appellant with conspiracy to commit controlled substance offense in the first degree as defined in Minn.Stat. § 152.096, subd. 1 (2000) and Minn.Stat. § 152.021, subd. 1(1) (1998), controlled substance offense in the second degree as defined in Minn.Stat. § 152.022, subd. 1(1) (1998), and two counts of controlled substance offense in the third degree as defined in Minn.Stat. § 152.023, subd. 1(1) (1998).
Appellant waived his right to a jury trial and to the district court he denied ever selling drugs to the informant—he claimed that audio and video tapes of the transactions recorded by police establish that he was actually buying stolen merchandise from her. The court found appellant guilty of one count of conspiracy to commit controlled substance crime in the second degree for drug transactions between November 25, 1998 and January 8, 1999,4 one count of controlled substance offense in the second degree for the transaction on December 7, 1998 and two counts of controlled substance crime in the third degree for transactions on November 25 and 27, 1998.
At sentencing the state argued for an upward departure claiming appellant had committed a "major controlled substance offense" because his conviction met the factors in Minnesota Sentencing Guidelines II.D.2.b(5). The guidelines provide that a major controlled substance offense is "an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual offense" and occurs where two or more of the following factors are present:
Minnesota Sentencing Guidelines II. D.2.b(5).
In its motion for an upward sentencing departure the state argued that factors (a) three or more separate transactions, (b) sale of quantities substantially larger than for personal use, and (e) high position in the drug distribution hierarchy, were present in the charged offenses, but did not specify upon which charge the court should depart. The district court imposed a presumptive guidelines sentence for the second-degree conspiracy offense and both third-degree sale offenses. As to the fourth offense—second-degree sale of controlled substances—the presumptive sentence was 98 months. The court agreed with the state that factors (a), (b), and (e) of the major controlled substance offense sentencing guidelines criteria were present in the second-degree sale offense and upwardly departed from the presumptive sentence of 98 months by adding 24 months for a total sentence of 122 months on that count.
To the court of appeals appellant alleged several claims of district court error: allowing a prosecution witness to testify about appellant's illegal drug activities that occurred before the charging dates of the criminal complaint; insufficient evidence to sustain his conspiracy conviction; erroneously calculating his criminal history score; concluding that the conspiracy offense and individual controlled substance offenses were not one behavioral incident for purposes of sentencing; and departing from the presumptive sentence on the second-degree sale conviction.5
The court of appeals remanded for recalculation of appellant's criminal history score6 but affirmed on all other issues. As to the sentencing departure, the court held that the departure was appropriate because the record supported the district court findings of three major controlled substance offense factors under II.D.2.b(5) of the Sentencing Guidelines. In its analysis however, the court of appeals considered factors (b), (c) and (e), having substituted factor (c) manufacture of controlled substances for other parties, for factor (a) three or more separate transactions, which was the factor relied upon by the district court. The court held that the record supported a finding that factors (b), (c), and (e) were present and that the district court did not abuse its discretion in imposing an upward departure on the second-degree controlled substance conviction for the drug transaction on December 7. We granted appellant's petition for review only on the issue of the sentencing departure.
On appeal here appellant makes several arguments: that the record does not support the sentencing departure, that the major controlled substance offense aggravating factors duplicate the considerations incorporated in statutes relating to drug crimes and presumptive sentences, and that his sentence is disproportionate to his criminality and to sentences in similar cases. The state responds that the record adequately supports the factors cited by the court of appeals—the departure was warranted because more than double the amount of cocaine necessary for a second-degree conviction was involved in the offense, because appellant cooked powder cocaine and packaged it, and because appellant was a leader of an ongoing drug conspiracy. The state also argues that the departure guidelines do not duplicate the considerations of the drug statutes, and that if we find the record does not support a departure on the second-degree conviction for the December 7 transaction, we should remand to the district court for consideration of an upward departure from the presumptive sentence on the second-degree conspiracy conviction for drug transactions between November 25 and January 8 and upwardly depart on that charge.
Substantial and compelling circumstances must be present in the record to justify departures from the applicable presumptive sentences in the Minnesota Sentencing Guidelines. Rairdon v. State, 557 N.W.2d 318, 326 (Minn.1996). Our standard of review of...
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