State v. Mesich

¶1concurring specially.

¶2I cannot disagree that the facts enunciated by the majority justify the 240 month sentence imposed by the trial court. However, I cannot place the same reliance on State v. Herberg, 324 N.W.2d 346 (Minn.1982), that the majority opinion does. Both the Herbergtrial court and the trial court here imposed the statutory maximum sentence of 240 months. To that extent, the two upward departure decisions are parallel. However, the Herbergcourt sentence was 3.7 times the presumptive sentence. Here the trial court had to multiply the presumptive sentence by 5.5 to get to the maximum. Although Herbergdoes not tell us that we cannot multiply a presumptive sentence by a factor of 5.5 times, it does not tell us that we can. The issue in Her-berg was how bad do the facts have to be to warrant upward departure to the statutory maximum, not how many times can you multiply the presumptive sentence to get there.1

¶3Although I cannot find a case where this issue has been precisely decided, I believe the spirit and intent of the Minnesota Sentencing Guidelines is that upward departure of five, six, eight, or ten times the presumptive sentence is qualitatively different and constitutes a harsher sentence than doubling or tripling the presumptive sentence, even though the end result in terms of number of months is the same.

¶4To illustrate, assume that a defendant commits a crime which carries a maximum penalty of 20 years or 240 months. Assume that because of a high criminal history score the presumptive sentence for this defendant is 120 months (example one). Then, to reach the maximum possible sentence, the trial court need only multiply the presumptive sentence by a factor of two.

¶5Now assume that a defendant commits, in an equally heinous manner, a crime calling for a maximum possible sentence of 240 months, but because of a zero history *54score only has a presumptive sentence of approximately 40 months executed (example two). Even though the heinousness and viciousness and substantial and compelling circumstances of both defendant’s actions are the same, the trial judge in the second example has to multiply the presumptive sentence by a factor of six to get up to 240 months. Is example one controlling precedent for example two? I do not think so. The sentence for defendant in example two is harsher than the sentence in example one, although the length is the same.

¶6We do have clear direction in State v. Evans, 311 N.W.2d 481 (Minn.1981). Evansheld that upward durational departures should generally be limited to double the presumptive sentence and, absent “unusual compelling” facts, a departure of more than double cannot be justified. See Evans 311 N.W.2d at 483.

¶7Herbergtells us that there do exist cases with extremely aggravating factors that allow for imposing sentences above and beyond the general doubling rule. Herberg, however, while acknowledging that the maximum sentence authorized by law is the cap in terms of years, did not address whether or not there is a cap on the multiplying factor.

¶8There appears to be a need for a cap on the multiplying factor. If the only limit on upward departures is the maximum allowed by statute, there will be a trend toward departures of five, six, eight, ten, etc. times the presumptive sentence in order to reach the maximum when the facts are aggravated. This trend would emasculate the clear intent of the legislature when establishing the guidelines that the presumptive sentence had built into it due consideration for heinous elements of crime.

[T]he legislature, to a great extent, has taken the vulnerability of the victims of rape and factors such as the use of knives and threats into account in distinguishing rape offenses by degree. However, we have also indicated that each case must be considered on its own.

¶9Herberg, 324 N.W.2d at 349.

¶10I am concerned about a trend to treat the presumptive sentence as intended only for “nice” people who commit “nice” felonies. Whenever the defendant is the least bit odd or different and the facts the least bit aggravated or bizarre, there appears to arise a “presumption” that an upward departure is the norm, and that imposition of the presumptive sentence is somehow a sign of leniency. That is decidedly not the case. There is never a “presumption” that the presumptive sentence is not sufficient to punish the defendant. The power of trial courts to depart upward to double the presumptive sentence and then use unusual and compelling circumstances to go even higher is always a “departure”. Even in the face of aggravated acts, upward departures must be scrutinized to overcome the legislative presumption.

¶11There would be no sense or good taste in discussing the underlying facts in Herbergand in this case to attempt to quantify which defendant was the bigger villain and which victim suffered the most harm and most degradation. Both defendants committed extremely bad acts, and both victims suffered extreme injury. What needs to be addressed is whether a multiplier cap is needed.

¶12We already acknowledge the necessity of maximum caps regardless of the heinousness of the crime, as all crimes, except murder in the first degree, have a statutory maximum in terms of years.

¶13To assist trial courts, prosecutors, and the criminal defense bar, I invite direction from our supreme court and the legislature. Applying the Minnesota Sentencing Guidelines and interpreting Evansand Herberg, I would hold that if there exist unusual and compelling circumstances so aggravated that more than double the presumptive sentence can be justified, then in no case can the sentence imposed exceed a factor of, for instance, 3.5 times the presumptive.

¶14*55Since presumptive sentences are higher for each criminal history point, this standard would recognize the importance the guidelines place on sentencing people differently for committing the same crime if they have a higher criminal history score. At the present time, the only sentencing cap in Minnesota is the statutory maximum. The number of times a trial court can multiply the presumptive is the issue, not whether or not the statutory maximum can be reached. This issue should be addressed.