When Imposing Consecutive Sentences For Burglary & CSC III The Burglary Gets Sentenced First

State v. Jerry, Minn.Ct.App., 5/26/2015.  The district court found Mr. Jerry guilty of burglary in the first degree and with criminal sexual conduct in the third degree.  The court found that Mr. Jerry came into S.E.’s home without permission, grabbed and pushed her against the bedroom wall, and then sexually assaulted her.  The trial court imposed consecutive, executed sentences.  Even though the burglary was first in time, the court sentenced the CSC III first.  The state’s theory for this was that the burglary conviction “was predicated or conditioned upon [Mr. Jerry’s] completion of the criminal sexual conduct.”

Yeah, beats me what that means.  Except that what it meant to Mr. Jerry was that his combined sentence jumped from 186 months (129 months on the burglary and 57 months on the CSC III), to 237 months (180 months on the CSC III and 57 months on the burglary). 

With one dissent, the court of appeals makes short shrift of this theory.  A burglary, the court points out, is complete upon entry.  (Insert list of citations.)  The subdivision of the burglary statute requires that an assault be committed determines the sentence.  Here, the trial court found that Mr. Jerry had entered S.E.’s house and assaulted her before the sexual assault.  Under those findings the burglary was certainly complete once Mr. Jerry had entered the house and committed the assault.  The burglary gets sentenced first.  The trial court erred as a matter of law by sentencing the CSC III first.