Permissive Consecutive Sentencing Is Not Authorized Unless Allowed Under Minn.Stat. 609.035 or an Exception to that Statute

State v. Jones, Minn.S.Ct., 7/2/2014.  On October 16, 2010, Mr. Jones sent his estranged wife thirty-three text messages within a two and a half hour period of time.  These messages were a violation of  an order for protection that deputies had served upon Mr. Jones three days earlier.  The state charged Mr. Jones with one count of stalking and with one count of violating the order for protection.  A jury found him guilty on each count.  These two offenses are on the list of offenses eligible under the Guidelines for permissive consecutive sentences.  The district court imposed sentence on each conviction, to run consecutively with each other and consecutive with a previous sentence that Mr. Jones was already serving.

Mr. Jones appealed, saying that his conduct was a single behavioral incident that under Minn.Stat. 609.035 could result in only one sentence.  The state argued that each of the texts was a separate incident (even though the state had charged them all as a single count of stalking and violating the order) such that there were multiple incidents.  Justice Wright rejected this claim and concluded that Mr. Jones’ actions comprised a single behavioral incident.

That meant that imposing two separate sentences violated 609.035 unless an exception applies.  The state said that the Domestic Abuse Act, specifically 518B.01, subd. 16 creates such an exception.  In pertinent part, that subsection says that “[a]ny proceeding under this section shall be in addition to other civil or criminal remedies.”  Justice Wright rejects this interpretation, concluding that the “proceeding” referred to is an action to obtain an order for protection.

That leaves the Guidelines, specifically the authority therein for permissive consecutive sentences for certain listed offenses, even when the offenses involve a single victim involving a single course of conduct.  Guidelines, II.F.2.b.  Minn.Stat. 609.035, subd. 1 is also  still in play; it addresses the number of sentences that may be imposed for multiple current felony convictions.  The Guidelines, on the other hand, determine whether multiple sentences are concurrent or consecutive.  Where multiple sentences are permitted under the statute – either because the convictions did not arise from a single course of conduct; or the case implicates an exception to the statute – then the Guidelines govern the court’s discretion whether to impose concurrent or consecutive sentences.  Contrary to the conclusions of the trial court and the court of appeals, just because two offenses are on the Guidelines list of permissive consecutive sentences is not enough, by itself, to authorize consecutive sentencing.