Opinion
A21-0650
01-10-2022
State of Minnesota, Appellant, v. Henry Albert Allison, Jr., Respondent.
Traverse County District Court File No. 78-CR-20-130
Considered and decided by Florey, Presiding Judge; Worke, Judge; and Bryan, Judge.
ORDER OPINION
Renee L. Worke, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In October 2020, respondent Henry Albert Allison Jr. pleaded guilty to second-degree criminal sexual conduct, the use of a minor in a sexual performance, and possession of child pornography. The district court imposed an executed prison sentence of 91 months for Allison's second-degree criminal-sexual-conduct conviction, and consecutive stayed sentences for the remaining two offenses.
2. Appellant State of Minnesota challenges the district court's sentencing of Allison, arguing that the consecutive stayed sentences constitute departures from the sentencing guidelines, which the district court failed to support with findings of substantial and compelling circumstances. See Minn. Sent. Guidelines 2.D.1 (2019). 1
3. We generally afford the district court great discretion in the imposition of sentences and will only reverse for an abuse of discretion. State v. Soto, 855 N.W.2d 303, 307-08 (Minn. 2014). A district court abuses its discretion when its decision is based on an erroneous view of the law. Riley v. State, 792 N.W.2d 831, 833 (Minn. 2011). "Interpreting the Minnesota Sentencing Guidelines presents a question of law, which we review de novo." State v. Scovel, 916 N.W.2d 550, 554 (Minn. 2018).
4. When an "offender is being sentenced for multiple current felony convictions for crimes on the list of offenses eligible for permissive consecutive sentences . . . the convictions may be sentenced consecutively to each other" without departing from the guidelines, so long as the presumptive disposition for the offenses is an executed prison sentence. Minn. Sent. Guidelines 2.F.2.a(1)(ii) (2019). Allison's offenses-second-degree criminal sexual conduct, the use of a minor in a sexual performance, and possession of child pornography-are eligible for permissive consecutive sentencing. See Minn. Sent. Guidelines 6 (2019). Moreover, the record shows that the presumptive disposition for each of these offenses was an executed prison sentence.
5. Permissive consecutive sentences are to be executed, and "[i]f the [district] court pronounces a consecutive stayed sentence[, ] . . . the stayed sentence is a mitigated dispositional departure." Minn. Sent. Guidelines 2.F.2.a(1) (2019) (emphasis added). "A departure is not controlled by the Guidelines, but rather, is an exercise of judicial discretion constrained by statute or case law." Minn. Sent. Guidelines 2.D.1. "In exercising the discretion to depart from a presumptive sentence, the court must disclose in writing or on 2 the record the particular substantial and compelling circumstances that make the departure more appropriate than the presumptive sentence." Minn. Sent. Guidelines 2.D.1.c.
6. Here, the district court erroneously concluded that the guidelines required the imposition of consecutive stayed sentences and believed that it was following the guidelines by doing so. But as noted, the guidelines presume the execution of these sentences, and the district court departed from the guidelines by staying them. This departure, however, was not-as the guidelines state-"an exercise of judicial discretion." Minn. Sent. Guidelines 2.D.1. It was instead the product of the district court's erroneous belief that it was not exercising its discretion but rather following the requirements of the guidelines.
7. When a district court errs in sentencing by failing to exercise its discretion, the proper remedy is to remand the case for resentencing to provide the court an opportunity to exercise its discretion. State v. Curtiss, 353 N.W.2d 262, 264 (Minn. 1984). As recognized in Curtiss, "[t]his is not that rare case where we interfere with the exercise of discretion, but a case where the exercise of discretion has not occurred." Id.
8. Here, the district court erred as a matter of law by misinterpreting the sentencing guidelines and departing from them without exercising its discretion to do so. We therefore reverse Allison's stayed sentences and remand with instructions to the district court to exercise its discretion in resentencing. 3
IT IS HEREBY ORDERED:
1. The district court's sentences imposed for the offenses of use of a minor in a sexual performance and possession of child pornography are reversed and this matter is remanded for resentencing.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel. 4