Staying One Sentence and Executing Another Concurrent Sentence, Where Two Sentences Are Permitted, Is No Abuse of Discretion

Wells v. State, Minn.Ct.App., 12/2/2013.  Mr. Wells believed that D.B. had sexually assaulted his daughter.  One morning, Mr. Wells went looking for D.B. over at E.B.’s place.  E.B. said he didn’t know where D.B. was – which apparently wasn’t true – which Mr. Wells didn’t believe so he took a baseball bat to E.B.

A jury convicted Mr. Wells of first degree burglary, first degree assault and second degree assault.  The top counts – burglary & assault one – called for 48 and 86 months in prison.  The trial court imposed these two sentences, but stayed execution of the 86 month sentence on the first degree assault, a departure.  The trial court justified the departure based on what’s known as the Trog, factors – State v. Trog, 323 N.W.2d 28 (Minn. 1982) - Mr. Wells’ age, lack of criminal record, his cooperation, his respect for the court, and the support of his family.

Mr. Wells argued on appeal that if there was a basis for departure on the assault conviction then that same basis required a departure on the burglary conviction.  That’s because, he said, a dispositional departure is supposed to be based on “the defendant as an individual and [focuses] on whether the presumptive sentence would be best for him and for society.”  State v. Heywood, 338 N.W.2d 243 (Minn. 1983).  The problem with this argument, however, is that the very year after Heywood, the court said that the trial court could impose a stayed sentence for one crime and a concurrent executed sentence for another crime (assuming that two sentences are permitted by statute or under the Guidelines).  State v. Petrin, 354 N.W.2d 578 (Minn.Ct.App. 1984).  The court also concluded that nothing in Trog required an all or nothing approach to a departure, in which case there was no abuse of discretion in this instance in staying one sentence and executing the other concurrent sentence.