Court Affirms Upward Departure

State v. Stanke, Minn.S.Ct., 5/7/2009.  Warning:  this is a Blakely Opinion.  Police spotted Mr. Stanke driving a stolen car on I-35W during rush hour; there were also warrants out for his arrest for some burglaries in South Dakota but the Opinion doesn't say whether the officers knew this at the time of the chase.  Fourteen miles into the chase, an officer placed "stop sticks" in the left lane of the interstate.  Mr. Stanke avoided the sticks but in doing so struck and killed the officer, then struck another car, which caused significant injuries to the driver of that car.

Mr. Stanke entered a guilty plea to fleeing a police office resulting in death and to fleeing a police officer resulting in great bodily harm.  Mr. Stanke agreed to waive a Blakely sentencing jury, and agreed that aggravating factors existed that would justify a double upward departure in sentence length.  After a sentencing hearing, the trial court found nine "substantial and compelling" aggravating factors, and one "severe aggravating circumstance" - the officer's particular vulnerability - to justify a statutory maximum sentence of slightly more than a double departure.

The appellate court acknowledges its past pronouncements that police officers are “highly vulnerable when engaged in the performance of their duties.” State v. Brown, 345 N.W.2d 233, 239 (Minn. 1984).  Nonetheless, the statute under which Stanke plead guilty, Minn.Stat. 609.487, accounts for this vulnerability, with its more severe penalties.  The trial court's reliance on the officer's vulnerability was thus error. 

Now the questions becomes what to do about this error.  A greater than double departure requires a "severe aggravating circumstance."  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981).  Where the aggravating factors only support an improper or inadequate reason for departure, the appellate court usually remands the case.  However, if the appellate court concludes that the trial court would have imposed the same sentence absent reliance on the improper aggravating factor then it will affirm the sentence, State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008).  That's what it does here, substituting its judgment for that of the trial court, affirming the upward departure.  Any or all of the nine "substantial and compelling" aggravating factors could also serve as the required "severe aggravating circumstance."  The factors that the appellate court identifies are:

the high speeds at which Stanke drove; that the chase occurred during rush hour; that Stanke had been using methamphetamine for two weeks before the chase and had not slept during that time; that Stanke injected himself with methamphetamine during the chase; that Stanke was talking on a cell phone during the chase; and that Stanke, at some point, was steering the car with his knee.