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.

Sentencing Provision, Minn.Stat. 609.2232, Mandating Consecutive Sentencing, Does Not Apply to a Private Correctional Facility

Johnson v State, Minn.Ct.App., 8/27/2012.  The state of Washington sent Mr. Johnson to the Prairie Correctional Facility, out in Appleton, Minnesota, to serve a prison sentence.  We aren’t told what Mr. Johnson did to deserve getting banished from Washington to a prison surrounded by cornfields.  Understandably, he was a bit crabby while there and got into it with another inmate, punched him.  Mr. Johnson eventually settled the resulting criminal charge for a gross misdemeanor.  The trial court ordered that he serve this sentence consecutively to the Washington state felony sentence.

This prison is a private facility that the state rents for the housing of inmates; the department of corrections doesn’t run the place.  Mr. Johnson argued that he was entitled to a concurrent sentence.  The statue in play here says:

If an inmate of a state correctional facility is convicted of violating section 609.221, 609.222, 609.223, 609.2231, or 609.224 [first-, second-, third-, fourth-, or fifth-degree assault], while confined in the facility, the sentence imposed for the assault shall be executed and run consecutively to any unexpired portion of the offender’s earlier sentence. The inmate is not entitled to credit against the sentence imposed for the assault for time served in confinement for the earlier sentence. The inmate shall serve the sentence for the assault in a state correctional facility even if the assault conviction was for a misdemeanor or gross misdemeanor.

The court of appeals agrees with Mr. Johnson, but it may be a short lived victory.  A “state correctional facility” does not include a facility not under the operational control of the department.  Also, Mr. Johnson had not been committed to the custody of the commissioner; he was farmed out from Washington State.  The catch, though, is that this misdemeanor is not subject to the Guidelines so the trial court retains discretion to impose a consecutive sentence.

A Felony Sentence Permissively Consecutive to a Gross Misdemeanor Sentence is Calculated at the Defendant’s Actual Criminal History Score Rather Than at a Zero Criminal History Score

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).