State v. Rushton, Minn.Ct.App., 9/17/2012. A grand jury returned an indictment against Mr. Rushton, charging him with two counts of first degree criminal sexual conduct and two counts of second degree criminal sexual conduct. The grand jury also charged that Mr. Rushton was eligible for a mandatory life sentence because he is a repeat sex offender. See Minn.Stat. 609.3455, subd. 4(a)(1). Mr. Rushton agreed to plead guilty to one count of first degree criminal sexual conduct, which authorized the trial court to impose a life sentence. Which is what the trial court did. But that’s not the problem.
Now, this statute says that the court is to specify a minimum term of imprisonment that must be served before the offender may be considered for supervised release. This minimum term of imprisonment is equal to either the mandatory minimum sentence called for in a non-life sentence situation, or the applicable sentencing guidelines. For Mr. Rushton, that meant that the minimum term of imprisonment was 180 months, based on his criminal history score of 3. However, the trial court set the minimum term of imprisonment at 300 months mostly because that’s what the lawyers agreed to do.
This, it turns out, is an upward departure, which required the trial court to state what the substantial and compelling reasons were to support it. The trial court did not state any reasons for the departure other than that the parties had agreed to it. Under State v. Misquadace, 644 N.W.2d 65 (Minn. 2002), a plea agreement, by itself, is not a valid basis for a departure, up or down. Nor do Mr. Rushton’s two prior sex offenses operate to justify a departure, because the legislature has already utilized those prior convictions in setting the punishment. Can’t double dip. Because the trial court did not articulate a valid basis for the departure, the court of appeals sends the case back for resentencing, with the minimum term of imprisonment left within the presumptive guidelines range.
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