Consecutive Stayed Sentences that are Silent on Whether the Time on Probation is “Stacked” Is Concurrent

Pageau v. State, Minn.Ct.App., 9/10/2012.  The state charged Mr. Pageau with eight crimes, eventually cut a deal with him on three of them:  false imprisonment, criminal vehicle operation and fleeing a police officer.  The trial court imposed stayed sentences across the board.  The trial court also ran the stayed sentence for the criminal vehicle operation consecutively to the stayed sentence for false imprisonment; and ran the stayed sentence for the fleeing a police officer consecutively to the stayed sentence for false imprisonment but concurrently with the criminal vehicle operation.  Do we need a chart?  Perhaps:

Count 2:  False Imprisonment	15 months stayed, placed on probation for a period of three years.
Count 4:  criminal vehicle operation	17 months, stayed, consecutive to count 2, placed on probation for a period of three years.
Count 6:  fleeing police officer	15 months, stayed, consecutive to count 2 but concurrent with count 4, placed on probation for a period of three years.

 

Time goes by.  As the three year probation period is approaching an end probation can’t imagine that the court meant for the term of probation to be only three years; the trial court must have meant consecutive probationary terms of three years each.  Probation sends the judge a memo, complete with boxes to check on which it supposed to be.  The judge checks the box, “2 three year terms of probation” and sends it back.  Mr. Pageau cries foul, then files a post conviction petition saying that the term of probation can only be three years because the judge didn’t say anything different.

In a 2-1 opinion, (Larkin & Wright) Judge Larkin engages in an existential discussion of the difference between a “sentence,” a “probationary sentence,” and “probation,” and the polices for and against “stacked” probationary periods.  The end result is that the pronouncement of stayed consecutive sentences does not automatically result in “stacked probationary periods.”  Rather, the trial court has to say that, and has to say it at sentencing:

In summary, because existing legal authorities do not establish that stacked probationary periods automatically result when a district court pronounces a stayed sentence consecutively to another stayed sentence, and because the use of stacked probationary periods likely yields a result that is inconsistent with the traditionally recognized goal of consecutive sentencing, we hold that a district court’s pronouncement of a stayed sentence consecutively to another stayed sentence does not automatically result in stacked probationary periods. Moreover, because the rules of criminal procedure require precision when pronouncing sentence, we further hold that to impose stacked probationary periods when pronouncing a stayed sentence consecutively to another stayed sentence, a district court must specify that the probationary periods are to be stacked. In the absence of such a statement, the attendant probationary periods run simultaneously.

Now, the majority pretty much demolishes any  policies you could come up with to support consecutive periods of probation, and the authority to impose consecutive terms of probation remains up in the air.  That wasn’t really the question before the court.

Judge Schellhas dissented.  She thought that the trial court had clearly imposed consecutive terms of probation.  So, when Mr. Pageau filed his post conviction petition what he was really asking for was for a reduction in the period of probation.  Because he did so more than two years after the initial pronouncement of sentence his petition was untimely.