State v. Campbell, Minn.S.Ct., 5/9/2012. A jury convicted Mr. Campbell of a slew of charges but for simplicity’s sake the two that are pertinent were gross misdemeanor criminal vehicular operation resulting in bodily harm and felony fleeing a police officer resulting in death. The trial court gave Mr. Campbell a 12 month sentence on the gross misdemeanor and then stacked a 234 month sentence for the felony fleeing. The court got to 234 by sentencing at Mr. Campbell’s actual criminal history score of 3, rejecting Mr. Campbell’s argument that this consecutive sentence should have been sentenced at a criminal history score of 0. Justice Meyer, writing for a 4 member majority – Justices Stras, Page and Paul H. Anderson dissenting – sides with the trial court.
These sentences are consecutive based on the multiple victim exception, Minn. Sent. Guidelines 2.F.2.f. and Minn. Stat. §§ 609.035, subd. 5 and 609.15, subd. 1(b) (2010). Mr. Campbell argued successively to the court of appeals that under the Guidelines permissive consecutive sentences are sentenced at a zero criminal history score. The pertinent Guidelines provision that’s in play here is 2.F.2. Here’s what the Guidelines say:
For each offense sentenced consecutive to another offense(s), other than those that are presumptive, a zero criminal history score, or the mandatory minimum for the offense, whichever is greater, shall be used in determining the presumptive duration. (Emphasis added.)
The majority decided that “to another offense” is ambiguous, largely because the Guidelines, themselves, do not define the word “offense.” That being so, then the majority can then easily choose to limit the phrase to felony crimes, which takes 2.F.2 out of the equation here and permits the trial court’s result to stand. Justice Stras, on the other hand, finds no ambiguity at all; he says that no matter where you look, an “offense” is defined to be any “crime or transgression of the law, whether a misdemeanor or a felony.” See The American Heritage Dictionary of the English Language 1222 (5th ed. 2011). Justice Stras cites a litany of definitions that are the same, including these from two editions of Blacks Law Dictionary:
Black’s Law Dictionary 1186 (9th ed. 2009) (“A violation of the law; a crime, often a minor one.”);Black’s Law Dictionary 1081 (6th ed. 1990) (“A felony or misdemeanor; a breach of the criminal laws; violation of law for which penalty is prescribed.”).
To give the majority its due, Justice Stras counts up the number of times that the Guidelines uses the phrase “felony offense” and finds a total of 19 times! From this proliferation of the phrase Justice Stras concludes that if the Guidelines had wanted to limit 2.F.2 only to felony offenses sentenced consecutively to other felony offense it knew how to do that.
It remains to be seen just how expansive a read this opinion will be given down in the trenches of trial courts. This opinion could certainly push prosecutors to add misdemeanor and gross misdemeanor offenses to initial felony charges as additional coercion to get a plea. Imagine a young black male who allegedly strangles his girlfriend as she is attempting to call 911; to prevent that call this young black male pushes aside his girlfriend’s sister to get at the phone. Is a misdemeanor assault charge against the sister on the horizon, and because there are two victims, may the felony strangulation sentence be stacked at a higher criminal score on top of the misdemeanor sentence?
The Guidelines do not apply to misdemeanor/gross misdemeanor sentencing. State v. Kier, 678 N.W.2d 672 (Minn.Ct.App. 2004); the exception, at least until now, had been that a defendant could not be required to serve more total time in confinement on consecutive misdemeanor/felony sentences than he would have to serve if he were sentenced consecutively on two felonies. State v. Dulski, 363 N.W.2d 307 (Minn. 1985).
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