State v. Lund

¶1OPINION

¶2Eric Lund appeals from the sentence imposed for his conviction of conspiracy to distribute a controlled substance and contends the sentencing court abused its discretion by executing a presumptively stayed sentence at his request. We reverse and remand.

¶3FACTS

¶4Appellant was charged with one count of conspiracy to distribute a controlled substance, Minn.Stat. §§ 152.09 and 152.096, subd. 1 (1984). In a statement given to police after his arrest, appellant admitted supplying Charles Ruesken with 2,269 “dosage units” of purported LSD1 in four separate transactions between September and October of 1985. Ruesken then sold the LSD to an undercover agent of the Bureau of Criminal Apprehension.

¶5On March 24, 1986, appellant pled guilty in exchange for an agreement that he would not be prosecuted for any other drug charges. At the guilty plea hearing, appellant testified that he sold LSD to Ruesken four times in September and October of 1985, and that he arranged to sell 5,000 “dosage units” of LSD to the undercover agent. The State informed the trial court that it intended to request a departure from the sentencing guidelines and a prison sentence. Appellant demanded a sentencing hearing, but failed to appear for sentencing.

¶6After being arrested on a bench warrant, appellant appeared before the court for sentencing May 27, 1986. The prosecutor stated that the defendant could either “acquiesce in the dispositional departure” or face a departure hearing. After conferring *2with counsel, appellant agreed not to contest an executed sentence of 30 months for conspiracy to distribute a controlled substance, and that his probation on a prior burglary conviction would be revoked, with that sentence to be served concurrently.

¶7The court specifically asked appellant if he understood the agreement:

THE COURT: Mr. Lund, you understand what has been said?

THE DEFENDANT: Yes, sir.

THE COURT: You want the court to execute a 30-month sentence on you and send you to prison for that period of time?

THE DEFENDANT: Yes, sir.

¶8The trial court then sentenced appellant to imprisonment for a term of 30 months for conspiracy to distribute a controlled substance and imposed a concurrent term of one year and one day on the burglary conviction. A departure report filed by the trial court stated that the reason for the departure was: “As per the request of the defendant.”

¶9ISSUE

¶10Did the sentencing court abuse its discretion by imposing a dispositional departure at appellant’s request?

¶11ANALYSIS

¶12The Minnesota Sentencing Guidelines provide that:

… The judge shall utilize the presumptive sentence provided in the sentencing guidelines unless the individual case involves substantial and compelling circumstances. When such circumstances are present, the judge may depart from the presumptive sentence and stay or impose any sentence authorized by law. … When departing from the presumptive sentence, a judge must provide written reasons which specify the substantial and compelling nature of the circumstances ….

¶13Minnesota Sentencing Guidelines II. D.

¶14Although there may be reasons to depart, the trial court did not specifically state them. Defendant’s agreement is not sufficient. State v. Garcia, 302 N.W.2d 643, 647 (Minn.1981). The matter is remanded for a sentencing hearing to determine whether there are substantial and compelling reasons to sustain the departure.

¶15DECISION

¶16Reversed and remanded.