State v. Perkins

Full title: STATE OF MINNESOTA, Respondent, v. MICHAEL LEE PERKINS, Appellant

Court: Minnesota Court of Appeals

Date published: Jul 9, 1996

No. C1-96-104 (Minn. Ct. App. Jul. 9, 1996)

Opinion

No. C1-96-104.

Filed July 9, 1996.

Appeal from the District Court, Anoka County, File No. K5-95-3797.

Hubert H. Humphrey, III, Attorney General, (for respondent).

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, (for respondent).

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, (for appellant).

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.^_

_ Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).

UNPUBLISHED OPINION

TOUSSAINT, Chief Judge.

On appeal from a sentence revocation hearing, Michael Lee Perkins challenges, under the sentencing guidelines, the district court's execution of a gross misdemeanor sentence consecutively to a felony sentence. We affirm.

DECISION

The district court, acting in accordance with applicable statutes, has broad discretion to determine the appropriate sentence. State v. Lambert, 392 N.W.2d 242, 243 (Minn. 1986). Upward departure is within the sentencing court's discretion only if "substantial and compelling" aggravating circumstances are present. An appellate court reviews a district court's departure from a guideline sentence on a clear abuse of discretion standard. State v. Garcia , 302 N.W.2d 643, 647 (Minn. 1981). "If the record supports findings that substantial and compelling circumstances exist, this court will not modify the departure unless it has a 'strong feeling' that the sentence is disproportional to the offense." State v. Anderson , 356 N.W.2d 453, 454 (Minn.App. 1984)

Perkins relies on State v. Dulski, 363 N.W.2d 307 (Minn. 1985), in arguing that the imposition of a consecutive gross misdemeanor sentence was an abuse of discretion and unfairly exaggerates the criminality of his conduct:

* * * [It] would be unfair to hold, in effect, that a defendant who is convicted of a gross misdemeanor may, by virtue of the technical nonapplicability of the Sentencing Guidelines, have to serve more total time in confinement * * * than he would have to serve if he were convicted of a felony.

Id. at 310.

Perkins acknowledges that the Minnesota Sentencing Guidelines do not apply to misdemeanor sentences. State v. Aleshire, 451 N.W.2d 66, 67 (Minn.App. 1990), review denied (Minn. April 13, 1990). Misdemeanor and gross misdemeanor sentences can be imposed consecutively to each other. Minn. Stat. § 609.15, subd. 2 (1994). Like this statute, the Minnesota Sentencing Guidelines are silent as to whether a gross misdemeanor and misdemeanor sentence can be imposed consecutively to a felony.

A review of the plea, sentencing, and revocation hearing transcripts does not reveal what factors the district court considered in sentencing the gross misdemeanor and misdemeanor offenses consecutively to the felonies. There are no guidelines in sentencing misdemeanors consecutively to felonies. The transcript of the June 16, 1995, plea hearing reveals that the state could find no grounds for departure in making its sentence recommendation for the felonies. At that same hearing the district court stated that Perkins had eight prior adjudications as a juvenile. The present offenses were committed between March 6 and March 14, 1995.

The district court did not abuse its discretion in imposing a gross misdemeanor and misdemeanor sentence consecutively to a felony sentence. Cf. State v. Hunt, 419 N.W.2d 816 (Minn.App. 1988) (holding that the district court erred because its determination that consecutive sentencing was permissible violated the language of the sentencing guidelines).

Affirmed.