A Defendant Who is Charged Under the Mandatory Sentencing Provision of Chapter 152 Is Not Eligible For Probation.

State v. Adams, Minn.Ct.App., 12/28/2010.  Ms. Adams pled guilty to second degree controlled substance crime, charged under the subsequent offender sentencing provision, Minn.Stat. 152.022, subd. 3(b).  This sentencing provision calls for a mandatory sentence of three years.  The trial court ignored this sentencing provision and placed Ms. Adams on probation, citing eight separate reasons for departing.  The State appealed the sentence and the court of appeals reversed.

Minn.Stat. 152.026 says that someone who is “convicted and sentenced to a mandatory sentence under [the second degree controlled substance statute] is not eligible for probation … under that person has served the full term of imprisonment as provided by law.”  See State v. Turck, 728 N.W.2d 544 (Minn.Ct.App. 2007).  The appellate courts have decided to construe this “convicted and sentenced” language to actually say “has a prior drug conviction and thus could be charged under the mandatory sentencing provision.”  Absent legislative action, someone who is charged under the subsequent offender sentencing provision is unable to avoid the mandatory prison sentence.  Now, whether the trial court can impose only the mandatory sentence, which in this case would be a guidelines departure, remains an open question.

Shockingly, Ms. Adams was not represented on this appeal.  She had private counsel in the trial court who only let the court of appeals know that he was not representing Ms. Adams after the state had filed its brief.